Volume 153 — Kentucky Reports

<p>1. Principal and Agent — Relation—Evidence—Declaration and Acts of Agent. — Agency cannot be established by the mere declaration of one claiming, or alleged to be an agent.</p> <p>2. Partnership — Relation—As To Third Persons — Estoppel.—The declaration and acts of one claiming to be an agent, not made in the presence of, or acquiesced in, by his ¡alleged ¡partners, do not estop them from denying the existence of such partnership.</p> <p>3. Partnership — Relation—Evidence—Weight and' ¡Sufficiency as to Third Persons. — Evidence held to be insufficient to show a partnership between a tobacco ¡buyer and tobacco merchants and. ■brokers, who handled the tobacco so purchased.</p>

<p>Wills — Construction of — Life Estates with Power of Sale. — Where a testator devised real estate to his widow for life, with power to manage, sell land convey, a sale and conveyance -of such real estate hy the widow, having capacity to contract, invests the purchaser with the .title thereto of the testator.</p>

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

<p>!L. Instructions — Gross Negligence — Exemplary Damages — Action for Personal Injuries. — tin an action for Personal injuries an instruction authorizing the assessment of exemplary damages should he given where the injury occurs under such circumstances as indicate a wanton and reckless disregard of the safety of others.</p> <p>2. Street Railroads — Reckless Collision with Automobile — Action for Personal Injuries — Evidence—Special Damages. — In an action for personal injuries resulting from the reckless striking of an automobile by a street car, the plaintiff alleging that >as a result of the injury his health and strength had been permanently impaired, any physical disability resulting from the accident might have been introduced in evidence as a distinct item of damage.</p>

<p>1. Fraud — Ground for Reversing Award by 'Chancellor. — Fraud or ■palpable mistake as to the law or facts is the only ground for reversing an award by a chancellor.</p> <p>2. Arbitration and Award — 'Where Award 'Closed Question of Damages. — Where the parties to a condemnation proceeding agreed of record to refer the question of damages to arbitrators whose award should be treated and entered in the county court as the verdict of a jury, their award closed the question of damages, unless it be successfully attacked by an exception going to its validity.</p> <p>3. Arbitration and Award — Judgment of County Court Upon Award —Appeal From — Dismissal.—Where an appeal was taken from the judgment of the county court in such a case, there was, in the absence of exceptions to the award, no issue for the circuit judge to try; and his order dismissing the appeal was proper.</p>

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

<p>1. Judgment — Action to Enforce 'Satisfaction — Limitation—Plea Not Necessary. — A plea of the statute of limitations is not necessary in an action to enforce satisfaction of a judgment on a return of no property found, but to entitle plaintiff to recover he must allege and prove that the execution on which his action is based ■was issued before the judgment was barred by the statute of limitations.</p> <p>2. Execution — Issuance of — 'Proof.—In the absence of record evidence, the issuance of an execution can only be shown by clear and convincing evidence.</p> <p>3. Execution — (Issuance of — Evidence—Sufficiency.—In an action involving the issuance of an execution, evidence examined and held insufficient to show that the execution issued.</p>

<p>1. Wills — Construction.—Where a testator devises property to his ■daughter-in-law for life, and upon her death “to her descendants hy my son Washington, such descendants taking interest therein’ as they would do taking from her -(by descent,” the word “descendants” is used in the sense of “children,” and the children of the life tenant by the testator’s son take a vested estate in remainder.</p> <p>2. Deeds — ’Sufficiency.-—¡Where a life tenant and her husband and their three children having a vested remainder, unite in a deed,, the deed, after the husband’s death, when it is no longer possible for the life tenant to have any other children by him, is sufficient to vest in the grantee a fee simple title to the .property conveyed.</p>

<p>Writs — Court of Appeals May Issue Writs of Prohibition Only Against Judicial Officers — 'Adequate Remedy. — Under Section 110 of the Constitution, the Court of Appeals may issue writs of prohibition only against judicial officers and not against ministerial officers, and no writ will be issued where there is another adequate remedy.</p>

<p>1. Criminal Law — Indictment for Felony — 'C'ourt May Pass Upon Sufficiency of — Objection by Commonwealth's Attorney. — Where a person is. under an indictment for a felony, the trial court may pass upon the sufficiency of the indictment; and also determine on the trial whether there is any evidence conducing to prove the guilt of the accused, and if none, instruct the jury to acquit him; 'but it is without power to dismiss a sufficient indictment, when such dismissal is objected to by the Commonwealth’s attorney. And this is true, although the latter miay have made a previous agreement with the counsel of the accused that he would dismiss the indictment.</p> <p>2. Criminal Law — Dismissal of Indictment by Commonwealth’s Attorney. — The Commonwealth attorney may dismiss the indictment or enter a nolle prosequi in any case, as allowed bysection 123 Kentucky Statutes, but in doing so, he must, as therein provided, file a statement in writing “setting forth his reasons for such dismissal or such failure to prosecute, which statement shall be signed by the Commonwealth’s or County Attorney, as the case miay be, and spread upon the order book of the court, and an order entered in accordance therewith.” If the reasons thus given are by the court deemed sufficient, it may grant the dismissal of the indictment or discontinuance of the prosecution.</p>

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

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

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

<p>‘ 1. Judges — County Judge — Vacancies—Elections.—The legislative act of 1912, which became a law June 12, 1912, creating the County of McCreary, provided for the appointment by the Governor of all officers provided for a county by the constitution and laws of this State. A vacancy existed in the office of county judge of said county upon the effective date of said act, and, under section 152 of the constitution appointments to fill said vacancy could be made only until the next regular election occurring more than three months after the effective date of said act, at which city, town, county or State officers were to be elected, viz: the November 1912 election.</p> <p>2. Officers — ‘Presidential Electors. — Presidential electors are State officers.</p> <p>3. Mandamus — 'Officers—Election.—In issuing a commission to officers elect, the Governor acts in a ministerial capacity. He can, by mandamus, be compelled to issue a commission to one, presenting to him a certificate of the canvassing board showing the receipt by him of the highest number of votes for an elective office, unless the election is void, which fact is not to be determined by the 'Governor but in a contest of the election ias provided by law.</p> <p>4. Election — Notice.—The time of holding elections being fixed by law, no writ of election is necessary.</p>

<p>1. Trial — Verdict of Jury. — Where the evidence is so conflicting that a verdict in behalf of either party could not be set aside on tha •ground that it was palpaibly against the weight of the evidence, this court will not disturb the finding of the jury on the facts.</p> <p>2. Evidence — Where the evidence for the complaining party tended to show that a fire was started by sparks from an engine that passed the premises on the 17th, it was not error to admit evidence showing that the spark arrester on the engine was inspected on the 20th and found to be in first-class condition, when, the evidence showed that there had been no repair made on the engine between the 17th and the 20th.</p>

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

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

<p>Divorce — Custody of Child — Finding of 'Chancellor. — Where a wife is granted a divorce and the custody of her daughter, thirteen years of age, and both she and her husband remarry, and the husband institutes an action to recover the custody of the child, it is proper to refuse him such relief where the evidence fails to show that the mother is not a fit person to have the custody of the child, and the child prefers to remain with the mother, even though the plaintiff has a better home and can afford the child more comforts and advantages than the mother.</p>

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

<p>Municipal Corporations — Ordinance Regulating Closing Hours for Second-hand .Stores — Valid Exercise of Police Power. — A city, ordinance requiring second-hand dealers to keep their stores closed from seven p. m. to seven a. m. is not discriminatory, Is based on a reasonable classification, and is not unreasonable or • oppressive, but a valid exercise of the .police power.</p>

<p>1. Land — Sale of Indivisible Tract for — Division of Proceeds — Dower Interest. — An indivisible tract of land may be sold under subsection 2 of section 490 of the Code for a division of the proceeds among the joint owners, although a widow owns a dower interest or a life estate in one-tbird of the land.</p> <p>2. Land — ¡Subsection 2 of Section 490 of Civil Code — Parties.—In a proceeding brought to sell the land under subsection 2 of section 490, the wife of a joint owner is a necessary party to the action.</p>

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

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

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

<p>1. Land — Partition—(Intervening Claimant— Deed —• Delivery — -Evlr dence — Competency.—In a suit by the grantees under a deed from their grandfather for the partition of the land, where their father intervenes and claims the land under and (by virtue of 'a deed claimed to have been executed by their grandfather to him and the mother of the children,, evidence examined and held insufficient and incompetent to show the delivery of the deed.</p> <p>2. Evidence — Transactions of Deceased Person — Competency—Subsection 2, Section 606, Civil Code. — Evidence of the grantee in a deed, testifying for himself when the grantor is dead, that the deed was delivered to him by the grantor, is not competent where neither the decedent nor the representative of, nor anyone interested in, his estate had testified against the party claiming under the deed.</p> <p>3. Champerty. — The possession of a father occupying land with Ms children either by right of curtesy or by virtue of a deed which he claims was executed and delivered to him and his wife by hi3 wife’s father, or by both the alleged deed and right of curtesy,, is not adverse to his children, who occupy the land with him, and. a deed made to his children by their 'grandfather is not champertous.</p> <p>4. Improvements — Claim for — Not Allowed Where Judgment in Other Respects is More Favorable Than Party Claiming Is 'Entitled to. — Where a party, by a judgment which cannot be re-, versed because there is no cross-appeal, is given an interest in and a lien on land greater in value than any just claim he has for improvements, his claim for improvements will Ibe denied.</p>

<p>1. Mortgages — Executed by Married Woman — Valid Between Parties Though Not Recorded — Pleading.—A mortgage executed by a married woman and her husband, is valid between the parties, though not recorded, and a petition is not defective which fails to allege that the mortgage was recorded.</p> <p>2. Attachment — Failure of Affidavit to 'State 'Claim Is Just — Not Ground of Objection in Court of Appeals. — The failure of the affidavit for an attachment to state that the claim is just cannot he made a ground of objection for the first time in the Court of Appeals.</p> <p>3, Exemptions — Mortgagor Not Entitled to Out of Mortgaged Property — Waiver.—A mortgagor is not entitled to exemptions out of mortgaged property, although by the mortgage only his homestead exemption is waived.</p> <p>4. Mortga)ges.^-tA mortgage upon a stock of merchandise does not include furniture and fixtures.</p>

<p>Appeal — Opinion on Former Appeal Law of Case. — The opinion delivered on a former appeal is the law of the case and controls its determination on a subsequent appeal, unless tbe proof on the second trial was substantially different from that on the first trial, and a slight variation in the testimony is not sufficient.</p>

<p>Appeal — Jurisdiction—Amount in Controversy. — Where two plaintiffs unite in one suit to assert several and distinct interests, and there is a separate recovery in favor of each, the recoveries cannot he added together for the purpose of conferring jurisdiction, hut the amount of each recovery is the test of appellate jurisdiction so far as the defendant is concerned, and where each recovery is less than $200, exclusive of interest and costs, the court is without jurisdiction to entertain the appeal.</p>

<p>1. Instructions — Not Authorized by Evidence — Error.—Where plaintiff, claims that the grantees in a certain deed executed by her agreed to execute a note for $218 in addition to the consideration therein specified, and her proof tends only to show that the grantees agreed to execute such a note payable without interest at the death of plaintiff’s mother, who owned the dower interest in the land, 'an instruction authorizing a recovery of $218 in money is erroneous because not authorized Iby the evidence.</p> <p>2. Judgment — Contrary to Evidence — Error.—Where plaintiff claims that the grantees in a certain deed executed hy her agreed to execute a note for $218 in addition to the consideration therein specified, 'and her pr/oof tends only to show that the grantees agreed to execute such a note payable without interest at the death of plaintiff’s mother, who owned the dower interest in the land, a judgment of $218 with interest from date is erroneous because contrary to the evidence.</p> <p>3. Specific Performance. — Where .plaintiff claims that the grantees in a certain deed executed 'by her agreed to execute a note for $218 in addition to the consideration, therein specified, and her proof tends only to show that the grantees agreed to execute such a note payable without interest at the death of plaintiff’s another, who owned the dower interest in the land, .plaintiff is not entitled to a money judgment, but if she has a cause of action, is entitled to have the grantees specifically perform their contract to execute a note for $218, payable at her mother’s death, and such an action should be brought in equity.</p>

<p>Deeds — ¡Conveyance to School Trustees — Absence of Provision as to Reversion — Construction of.' — Under a deed by which the grantor conveys for a valuable consideration land to school trustees, and' ’ it is stated in the deed that the land is “to remain in common school grounds forever,” but without any provision that it shall revert to the grantor if not so used, the grantor cannot recover the land when it ceases to be used for school purposes, and is. sold by the school trustees to a third .person.</p>

<p>1. Children — Bqrn Before Marriage — When Legitimate. — If a man having had children by a woman afterwards marry her, and recognized them as his children, they became legitimate and under section 1398, Ky. Stats., capable of inheriting from him.</p> <p>2. Deeds — Action to Set Aside on the Ground of Mental Incapacity and Undue Influence — .Evidence—Sufficiency.—In an action to set aside a deed on the ground of mental incapacity and undue influence, evidence examined and held sufficient to show that for some time prior to the execution of the deed and at the time of its execution the grantor was mentally incompetent to understand the nature and effect of the conveyance, and that its execution was the result of undue influence exercised over him by his wife and children other than appellant, his only surviving child by a former marriage.</p>

<p>Appeals from Jefferson Circuit Court (Chancery Branch, First and Second Divisions).</p>

<p>•1. Insurance, Life — When Provision of Policy Cannot Be Relied on to Relieve Liability — Fraud.—In this action on two industrial insurance policies of $200.00 and $300.00 respectively, issued on the life of the insured and payable to his wife, as neither a written application by nor medical examination of the insured was required, a provision in each policy declaring “this policy is void, if Insured before its date has had consumption or disease * * * of the kidneys,” cannot be relied on by the insurance company to relieve it of liability on the policies, in the absence of a showing of fraud on the part of the assured in procuring the policies.</p> <p>2. Insurance, Life — Action Upon Policy — What Not Defense To — Absence of Fraud. — As it is not alleged in the answer that at the time of issuing the policies, the appellant made any inquiry of the insured as to the condition of his health, or that he made any statement in respect thereto, false or otherwise, upon which it relied in issuing the policies, the facts alleged did not show fraud and appellant is estopped to postpone until his death, ascertainment as to what the condition of his health was at the time the policies were issued. Therefore no defense was presented by the answer and the demurrer was properly sustained.</p>

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

<p>'l.~ Indictment — May 'Charge 'Commission of Crime in Different Modes. — An indictment may charge the commission of a crime in different modes and in as many counts as the grand jury may deem it necessary to employ; and when the indictment is thus drawn presenting in each count every aspect of the case in which from the evidence before the grand jury, the crime might have ¡been committed, the accused may be convicted upon evidence showing" his guilt under any of-the counts.</p> <p>2. Indictment — Time at Which Offense Was Committed — 'Mistake of Draftsman. — The statement in an indictment as to the time at which the oHen.se was committed, is not material further than as a statement -that it was committed before the time of the finding of the indictment, unless the time be a material ingredient in the oHense. The statement made in the indictment that the crime was committed April 17, 1911, when the proof showed it was committed March 5, 1911, was a mere mistake of the draftsman which did not aflect the validity of the indictment, as it was alleged that the crime was committed before the finding of the indictment.</p> <p>3. Criminal Law — Trial—Continuance—When Refusal of Not Reversible (Error. — The trial court’s refusal of a continuance to the accused on account of the illness of counsel and absence of witnesses, is not a reversible error, when it is apparent from the record on the appeal that by laying the case over from time to time during the term, the accused succeeded in procuring at the ' trial the presence and assistance of the counsel and attendance of the witnesses, for whose absence the continuance was asked.</p> <p>4. Homicide — (Evidence—Competency of — Admonition of Court. — On the trial of the accused for the murder of .Belle Meredith, it wag competent for the .Commonwealth to prove that at the same time and place and immediately before the killing of Mrs. Meredith, he, also shot and killed her husband, 'Sherman Meredith. Such evidence was admissible on two grounds. (1) .It was so connected with the killing of the wife as to make it a part of the res gestae. (2) It manifested the evil intent or motive for the killing of the wife; and the trial court carefully admonished the jury that its admission was competent for this purpose and no other.</p> <p>5. Criminal Law — Ruling of Trial Court Excluding Evidence — Will Not Be Reviewed on Appeal. — The rulings of the trial court in excluding evidence will not be reviewed on appeal, in the absence of avowals as to what the excluded evidence was, or would have been.</p> <p>6. Trial — Presence of Judge at — Absence—¡Suspension of Trial in Case of Absence. — The trial judge should be present and in his seat at every stage of the trial. But if at any time necessity requires him to leave the court room during a trial, his absence should be as brief as possible; and before quitting the bench or leaving the court room, he should announce his purpose to do so, suspend the trial then in progress, and declare a recess until his return.</p> <p>7. | Trial — Absence of Judge From Court Room — Argument of Coum- , sel During. — Where argument of counsel to the jury is in progress during the temporary absence of the judge from the court room, and upon objection from opposing counsel to some part thereof, counsel making the argument discontinues same until the judge returns to the court room and passes on the objection, such temporary absence of the judge could not have been prejudicial to any substantial right of the accused.</p> <p>8. Trial — Conduct of Trial Judge During — Motion to -Exclude . Remark of Commonwealth’s Attorney. — It is error for the trial court in the ¡presence of the jury and in the absence of .accused, to pass upon a motion made by his counsel after the submission of the case to the jury to exclude from their consideration a remark made by the Commonwealth’s attorney in argument to them, although the motion be properly overruled; but, such error on the part of the judge will not authorize a reversal, unless it is clearly made to appear that some substantial right of the accused was thereby .prejudiced.</p> <p>9. Criminal Law — Appeal—Judgment of ¡Conviction in Felony Case Will Not Be Reversed on Account of Single Absence of Accused During Trial. — The appellate court will not reverse a judgment of conviction in a case of felony, because of a single absence of the accused from court during the progress of the trial, or at the taking of some unimportant step in the case following its submission to the jury, unless, considering the whole record, it is of opinion his substantial rights were prejudiced thereby.</p> <p>10. New- Trial — When Will Not Be Granted. — A new trial will not be granted on the ground of newly discovered evidence, where such evidence could by reasonable diligence have been procured for the trial, or is merely cumulative; and especially is this true, if such evidence will only ten-d to contradict or impeach a witness whose testimony was given on the trial.</p>

<p>1. Nuisance — Action Against Railroad for Damages for Creating— Constructing Embankment So As to Form Pond of Stagnant Water — Injury to Health. — In an action against a railroad company for damages resulting from its alleged negligence in erecting an embankment through its right of way which So changed the course of a creek as to form and maintain a pond of stagnant water so situated with reference to appellee’s residence as to pollute the air surrounding it with foul and unwholesome odors and capse annoyance, inconvenience and illness, the fact that the track and trestles had been there for more than five years could not bar the action for a nuisance kept and maintained within five years.</p> <p>2. Nuisance — Instructions.—In such an action the defendant cannot complain of an instruction limiting -the recovery to .any injury suffered within the year before the filing of the petition, hut as the cause of action set up in the petition was óne essentially for damages for the depreciation in the value of the use of plaintiff’s residence, as well as the inconvenience by reason of the foul and unwholesome odors, the five years statute was applicable, and the instruction limiting the -recovery to any injury suffered within one year before the filing of the petition was prejudicial -to appellees.</p> <p>3. Nuisance — Operation of Railroad — Burying Carcass of Dead Animals — What Will Not Justify Giving of Instruction Authorizing Punitive Damages for .Causing Nuisance.^It is one of che incidents in the operation of a railroad that the carcasses of dead animals killed 'by the train must -he -disposed of, -and the mere fact that they are buried, along the right of way, and that such burial may -result in inconvenience or injury to some adjacent resident, does not show such a. reckless disregard of the rights of others as would justify the giving of an instruction authorizing the assessment of .punitive damages.</p> <p>4. Nuisance — Injury to Health — Evidence—Admonition of Court as to Purpose of. — The evidence that the health of plaintiffs was -affected may be admitted as illustrating the extent to which the value of the use of the property was diminished by the nuisance; but the court should admonish the jury of the purpose for which it is admitted.</p>

<p>1. Specific Performance — Action to Enforce — One Covenanting to Convey Title Must Be Held Bound by Such Undertaking. — Where one covenants to convey the fee simple title to land free from all liens and claims, he must be held bound 'by such undertaking, even though the purchaser knew at the time all the facts and was of the opinion that he could not carry out the contract.</p> <p>2. Specific Performance. — It would not be a safe rule to permit one to evade the effect of his failure to carry out his contract by say? ing that the other party to it knew at the time it was entered into that it could not be carried out.</p> <p>3. Specific Performance — Contract to Sell ¡Land — Liability for Deficiency — Vendor and Purchaser. — Where one contracts to sell land embraced within certain boundaries, and it afterwards turns out that he cannot make title to all the land so embraced, he is liáble to the vendee for the deficiency. The vendee has the right to rely upon the contract obligation of the vendor, and to demand-compliance with it as expressed in the deed or bond for title.</p> <p>4. Specific Performance — One Bound ¡By His Contract. — One must be bound by his contract, and if he makes a contract which it turns out he cannot perform, he must from the very nature of things-be held liable therefor.</p> <p>5. Specific Performance — Liability on Covenant to Convey Land. — It appearing that appellant did not have the character of title that he undertook to convey, he was liable on his covenant for his failure to do so, and in an action against him for specific performance it is not a defense that his intended vendor could not convey .because of defective title, and a demurrer to his rejoinder pleading this defense was properly sustained.</p> <p>6. Specific Performance — Failure to Convey — Measure of Damages. —The measure of damages in such a case is the difference between the contract price and the fair and reasonable market value of the land at the time it was to have 'been conveyed under the contract, if the value is in excess of the contract price.</p>

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

<p>1. Executors aud Administrators — When Liable to Widow for Exemp- • tions. — The executor who takes charge of the personal estate and pays it out to the creditors, is liable to the widow of the testator, for her exemptions if she renounces the will within' one year.</p> <p>2. Executors and Administrators — Payment of 'Creditors’ Debts— Subrogation. — The executor will be subrogated to the rights of the creditors whose debts he paid.</p>

<p>Contracts — Sale of Bran by Manufacturer — When Liable to Purchaser for Purchase Price. — A manufacturer of bran at Paducah, Kentucky, having shipped a car load to a dealer at Memphis, Tennessee, under a contract to send bran of good quality and con- ■ dition, is liable for the money .paid for the bran when on its delivery there, it was moulded and unfit for use.</p>

<p>1. Corporations — Subsidiary Corporation — Service of Process. — It appearing that a New York corporation has organized subsidiary corporations in Kentucky and Tennessee, and that these subsidiary corporations are only another name for the parent corporation, service of process on an agent of the Kentucky corporation, is sufficient to bring the Tennessee corporation before the court, and the court properly treated the two defendants as one.</p> <p>2. Verdict — Failure of Telegraph Company to Deliver Message Requesting Postponement of Funeral — Verdict for $674 Not Excessive. — A verdict for $674 for failing to deliver a message requesting the postponement of the funeral of the plaintiff’s mother, will not be disturbed as excessive.</p> <p>3. Telegraph Companies — Agreement of Agent as to Special Charges for Delivery of Message. — If the agent to whom the message is delivered agrees that special charges for delivery shall be paid by the consignee on the delivery of the message, the company is bound by the agreement, and is liable if the message is not delivered.</p>

<p>Statutes — Construction—Error in Act — Use of “May” for “March” — ■ How Read. — The word “May” appearing to have been used in an ; act by clerical error for “March,” will be read as “March,” it appearing by a comparison of the statutes that it was so intended.</p>

<p>Damages — Death of Oxen From 'Eating Mill Feed Containing Glass— When Dealer .Selling Feed Not Liable. — A dealer who sells -mill feed to a customer in the original packages, without any representation as to its quality, is not .liable to a customer for the loss of his oxen to which the mill feed was fed, they haying died by reason of ground glass contained in the mill -feed.</p>

<p>Federal Question — Bill of Lading — Plea of Stipulation in 'Contract.— It is incumbent on tbe defendant to plead a stipulation in the ¡bill of lading limiting its liability and if tbe contract is not pleaded, no federal question as to tbe validity of tbe contract under tbe act of Congress is presented.</p>

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

<p>1. Damages — Collision, of Automobile with Street Car — Injury to Employee of Salvage Corps — proximate Cause — -Negligence.—An automobile of the Louisville Salvage Corps running at thirty* miles an hour, having run into a street car standing in the street which had been stopped by a policeman, an employee of the Salvage Corps hurt in the collision, cannot recover damages of the railroad company, the negligence of those in charge of the automobile being the proximate cause of the injury.</p> <p>2. Damages — Recovery Against Salvage Corps — Assumed Risk-4* . Negligence. — But he may recover of the Louisville Salvage 'Corps for his injuries, as he did not in entering its service, assume the risk of the negligent operation of the automobile by his superiors.</p>

<p>1. Land — Forfeiture—Section 4076-k, Kentucky Statutes — When Nou. Permitted. — Where lands of a non-resident are sold and -purchased by the State for non-payment of taxes, and the State, in an equitable action to recover possession of the lands, is adjudged to be the owner thereof, and is awarded a writ of possession, the State cannot forfeit the lands for a failure of the owner to list" them for taxation for five successive years, or a failure to pay. the taxes thereon for five successive years, when during certain; of these years the title to the land was in the -Commonwealth,- and the owner was not, therefore, required to list the land for-taxation.</p> <p>2. Land — Tax Sales — Incomplete Redemption — 'State’s Lien. — Where’ the lands of a non-resident owner are sold and -purchased by the^ State for non-payment of taxes, and the State, in an equitable action, is adjudged to be the owner thereof, and is awarded a writ of possession, and the owner is permitted to redeem, without .paying the cost of the proceeding or all the taxes that have accumulated on the land from the'date of sale up to the date of redemption, and the ¡State brings ah action to forfeit the lands for non-listing for taxation or non-payment of taxes for five successive years, as provided by section 4076-k, the State’s right to its taxes will not be defeated by the incomplete redemption or by a failure to maintain the action of forfeiture, but in such an action the court will take steps to- have the ¡property in question properly assessed by the assessor for the omitted years in the manner provided by statute, and will make such orders as are necessary to secure the Commonwealth in the payment of the taxes for those years.</p>

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

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

<p>Damages — Personal Injury — ¡Negligent Enclosure of Elevator Shaft— Contributory Negligence — iQuestion for Jury — Evidence.—In an action by a customer against the .proprietor of a store for injuries alleged to have resulted from the failure of the proprietor to properly enclose the elevator shaft, evidence examined, and held that the question of negligence of the defendant and contributory negligence of the plaintiff was for the jury.</p>

<p>Appeal — Granted by Clerk of This Court — Copy of Judgment Appealed From — Necessity For. — The clerk of this court has no authority to ’grant an appeal unless a copy of the judgment appealed from is filed in his office, and where an appeal is granted on the filing of a copy of an order overruling a motion to vacate a judgment in an equitable action, instead of a copy of the judgment appealed from, and a copy of the judgment appealed from is not filed within two years from the time the right of appeal accrued, and the party appealing does not come within any of the exceptions mentioned in Section 745, Civil Code, the appeal will he dismissed.</p>

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

<p>1. Damages — Personal Injury to Infant — Action (by Father for Doss of Services, etc. — Evidence.—In an action by a father against the owner of an automobile for injuries to .plaintiff’s infant son, and the consequent loss to the .plaintiff of his son’s services, evidence examined and held to sustain a verdict in favor of plaintiff.</p> <p>2. Judgment — Conclusiveness—Parties—Concluded.—Where an infant receives personal injuries and brings suit, by his father as next friend, against the party responsible for such injuries, for pain and suffering and the impairment of his power to earn money after arriving at the age of twenty-one, which action results in a verdict and judgment for defendant, the judgment so rendered is not a bar to an action by the father for the loss .of his son’s services before becoming of age, and for medicines and medical treatment.</p> <p>3. Parent and Child — Injury to Child — Right of Action — Waiver. —Where an infant is injured by an automobile, an action by his father against the owner of the automobile on behalf of the infant for such damages as he may rightfully recover, is not a waiver of his right to file an action for the benefit of himself for such items of damage as rightfully belong to him as father.</p>

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

<p>1. Contracts — Statute of Frauds — Conflict of Laws. — The Statute of Frauds relates to the remedy, and a contract for the lease of lands in Texas, which was made in this 'State and sought to be enforced here, cannot be enforced, if within the iStatute of Frauds of this State.</p> <p>2. Contracts — ¡Statute of Frauds — Parol. Lease For A Tear to Commence at a Future Date. — A parol lease of land for a year to commence at a future date, is .within the ¡Statute of Frauds and unenforceable.</p> <p>3. Contracts — Statute of Frauds — 'Defense—Pleading—Demurrer.— Where the Statute of Frauds requires a contract to be in writing, and the petition fails to allege that it is in writing, defense may be made by demurrer.</p> <p>4. Contracts — Statute of Frauds — Damages—Recovery.—Where no benefit accrues to the defendant, no recovery can be had for expenses incurred and value of time lost on the faith of a contract unenforceable under the Statute of Frauds.</p>

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

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

<p>1. Railroads — Personal Injury — Travel on a Parallel Road — Accident at Crossing — Peremptory Instruction. — In an action ior personal injuries by a traveler whose horse took fright on a highway parallel with a railroad and ran off and collided with a train at a crossing, evidence examined and held sufficient to take the case to the jury.</p> <p>2. Railroads — Personal Injury — Instruction—Assumption of Pact.— An instruction does not assume a fact which the jury is specifically called on to determine.</p> <p>3. 'Instructions — Ordinary Care. — While trial courts should adhere to the definitions of ordinary care adopted and recognized by this court, it was not prejudicial error to give an instruction defining ordinary care as “such care as an ordinarily prudent person would usually exercise under similar circumstances in matters involving his own interest.”</p> <p>4. Instructions. — It i snot error to refuse an offered instruction where the instructions given fully present the question.</p> <p>5. Instructions — Contributory Negligence. — In an action for damages for personal injury, evidence examined, and held that the refusal of an instruction on contributory negligence was not prejudicial error.</p> <p>6. Railroads — Personal Injury — Action for Damages — Verdict—Excessive. — In an action for damages for personal injuries, evidence examined, and a verdict of $5,500 Reid not excessive.</p>

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

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

<p>1. Criminal Law — "Jury May Be .Selected From Bystanders. — In a criminal case when the regular panel has been exhausted by challenge the judge may direct that bystanders 'be selected to fill the vacancies.</p> <p>2. Evidence — Witness May Be Asked If He Has Been Convicted of a Felony. — It is admissible to show by a 'witness whether he be a defendant or not that he has been convicted of a felony, but when such a question is asked the judge should admonish the jury that it is only competent for the purpose of affecting the credibility of the witness.</p>

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

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

<p>1. Master and Servant — Assumption of Risk. — While an employe assumes the ordinary risks incident to the employment, he does not assume risks that attend or follow the negligent conduct of his superior officers.</p> <p>2. Master and Servant — Assumption of Risk. — =If there is a safe and an unsafe way of doing a thing, and the employe is acquainted with both methods and voluntarily selects the unsafe one when he could have selected the safe one, he cannot hold the master liable for an injury received, as he will he deemed to have voluntarily assumed the risk of adopting the dangerous in .place of the safe method of doing his work.</p>

<p>1. Bonds— Franchises— Action — Pleading— Demurrer.— Where a street railway franchise ordinance provides that the railway shall, within five years, be finished only on such streets as are necessary properly to serve the public and make a reasonable profit, it is necessary, in an action on a bond conditioned.for the faithful performance of that section of the ordinance, to allege and prove that the street railway could have been constructed on one or more of the streets of the city and conducted at a reasonable profit.</p> <p>2. Bonds — Franchises—Extension of Time to Commence Work — Release of Obligors. — Where a street railway franchise is sold to a partnership, and a bond is executed by the partnership and its individual members, conditioned that the purchasers will comply with the provisions of the franchise ordinance with reference to commencing and finishing the construction of the railway, one of the partners who signed the bond is not released from liability by an extension of time within which to commence the work of construction, even though he be insane when the extension was granted.</p> <p>3. Bonds — Franchise—Street Railway — Liquidated Damages. — Where a street railway franchise requires the railway to be commenced and constructed within a given period-of time, and the purchasers execute to the municipality a bond conditioned that the purchasers will comply with the provisions of the franchise ordinance in that respect, the sum fixed in the bond will be regarded as liquidated damages, and may, on a breach of the bond, be recovered without proof of actual damage, unless the sum so named is unreasonable or oppressive.</p> <p>4. Franchises — Valueless—Recovery of Purchase Price. — The purchasers of a franchise cannot recover of a municipality the purchase price where the franchise turns out to he of no value.</p>

<p>Railroads — Injury to Passenger From Being Thrown From Platform of Train — When No Reoovery Can Be Had — Negligence.—A passenger on a railroad train who goes out upon the platform before the train stops, and while standing there is thrown from the train by a jerk of the cars in stopping, cannot recover for his injuries in the'absence of some evidence showing negligence in the management of the train. The evidence may be circumstantial but there can be no recovery in the absence of facts showing that the jerk of the cars was unusual and more violent than is fairly incidental to the operation of the train with proper care.</p>

<p>1. Insurance, Fire — Mutual Company — Cancellation of Policy. — A mutual fire insurance company .created under the Kentucky Statutes ¡which issues to one of its members a policy insuring four separate buildings in certain amounts, may cancel the policy as to one of the buildings which is in bad repair without canceling it as to the others, the -policy providing that the company may cancel it at any time.</p> <p>2. Insurance, Fire — -'Cancellation of Policy. — In proceeding to cancel a policy, the company must follow the statute, but if it substantially follows the statute this is sufficient.</p> <p>3. Insurance, Fire — Cancellation of Policy. — A policy insuring four separate buildings in different amounts is separable, and not an entirety.</p>

<p>1. Contracts — Evidence of • New Contract — Submission of Controversy. — There being some evidence that a new contract was made by which it was agreed that the company would pay the man for hauling who did the hauling, and keep his account separate from the man who did the sawing, the question was properly submitted to the jury.</p> <p>2. Judgment — When Will Not Be Reversed for Failure to Give Instruction. — A judgment will not be reversed for the failure of the court to give an instruction which was merely the converse of an instruction which the court gave, and could not have affected the result of the trial.</p> <p>3. Contracts — When 'Superintendent of Company Has Authority to Make. — The superintendent of a company having charge of its plant and receiving and paying for timber hauled there, has apparent authority to make a contract to pay for the hauling.</p> <p>4. Judgment — When Not Prejudicial. — A judgment in favor of one of the plaintiffs for the whole sum, when $15 of it should have been adjudged to another plaintiff, is not prejudicial to the defendant against whom no more was adjudged than it owed, both the plaintiffs being bound by the judgment.</p>

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

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

<p>Disorderly House — Liability oí Lessor of Premises. — The lessor cannot be held criminally liable because his lessee conducts a bawdy house or a disorderly house in the rented premises (although he may have information of the unlawful use to which the tenant is putting the rented property), unless it be further shown that he leased the premises knowing that the lessee would or intended to use them for the purpose of conducting such a house, or before, or at the time of the lease, was in possession of such information as would put a reasonably prudent man upon notice of the purpose for which the premises were being leased, or consented or acquiesced in the premises being used for such unlawful purpose, or derived some profit or gain from such unlawful use.</p>

<p>1. Wills — Jurisdiction of Courts of Equity to Construe. — A real controversy between parties in interest as to the proper construction of a will, or a suit by parties in interest to obtain the construction of ambiguous clauses in a will, although, the issues between them may not have reached the point of actual controversy, is a legitimate subject of equity jurisdiction.</p> <p>2. Wills — Construction of — Will and Codicil to be Considered.— The whole of a will, including all codicils, which are to be treated as a part of the will, will be considered in arriving at its meaning as a whole or in part.</p> <p>3. Wills — Construction—Vested Estates Favored — Dying Without Issue. — The law favors the vesting of estates, and in cases of doubt it favors a fee rather than a lesser estate, and an estate once given in fee will not be defeated by subsequent provisions limiting it to a smaller estate unless the language of the instrument or the intention of the testator so requires; and so when there is reasonable doubt as to the time referred to, the rule is that the words “dying without issue” should be referred to some fixed period rather than to a dying without issue at any time.</p> <p>4. Wills — Construction of Words “Dying Without Issue.” — Where a testatrix, after giving her estate to her three daughters, provided in one clause of her will that if any of them should die leaving children, the children should take the parent’s part, and in a codicil provided that if any of them died without children the estate devised to the one so dying should go to the survivors, held that the words “dying without issue” in the codicil referred to a dying without issue before the period arrived for tbe distribution of the estate, and not to a dying without issue at any time.</p> <p>S. Administrator with Will Annexed — Powers of. — Under Section 3892 of the Kentucky Statutes, an administrator with the will annexed has all the power and authority vested in the executors named in the will.</p>

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

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

<p>1. Contracts — Settlement of 'Claim for Personal Injuries to Infant— Consideration Paid to Father of Infant — Infant Not Bound hy Such Contract. — Where the infant iwho received the personal injury was only seventeen years of age at the time he signed the writing, and the whole consideration was paid to the father, in an action by the infant for the recovery of damages, the trial court properly directed the jury that the infant was not bound .by the contract," and not to consider the evidence which had been submitted on that question.</p> <p>2. Personal Injuries — Injury to Infant — Payment to Father for Boss of Services — Action by Infant — Pleading.—The father to whom payment was made for loss of his infant son’s services had a right of action for the injuries to the son, and the payment could only be properly pleaded in an action by him.</p> <p>3. Personal Injuries — Negligence—Pleading.—In an action for damages for personal injuries where the plaintiff in an amended petition specifically reiterates and adopts all the allegations of his original pleading, the amendment must be treated as intended to perfect the original cause of action, and all evidence bearing upon any of the acts of negligence should be permitted to go to the jury.</p> <p>4. Personal Injuries — Effort to ¡Beach Place of Safety — Peremptory Instruction — 'Contributory Negligence. — One is fully justified in adopting such means as seemed to him at the time necessary to reach a place of safety, and it would be a harsh rule to say that one was guilty of contributory negligence in such a case, even though it afterwards developed that if he had remained in the supposed place of danger he would not have been injured.</p> <p>£>. Evidence — Evidence that is competent only for the purposes of contradiction and as bearing upon a witness’ credibility, should not be. permitted to be offered as substantive testimony,</p>

<p>1. Judgment — Suit Against Partnership as Corporation — Defense by Partners — Judgment Against Partnership — [Liability of Individual Partners. — Where a partnership is sued in its firm name as a corporation, and the allegation that it is a corporation is not denied, and the individual partners employ counsel and defend in the partnership name and make every possible defense that they could have made had they been made defendants and personally served with process, they will be held individually liable on the judgment.</p> <p>2. Judgment — Action On. — While no action may be brought on a judgment to recover a second judgment of a party against whom the original judgment was rendered, an action may be brought on a judgment for the purpose of imposing liability on one who, though not named in the judgment, is bound thereby.</p>

<p>1. False 'Swearing — Swearing Falsely Before Fire Marshal — Indictment For. — Under an act defining the duties of a fire marshal, a person who wilfully and knowingly swears falsely before a fire marshal may he indicted either for false swearing or perjury at the election of the Commonwealth.</p> <p>2. Fire Marshal — Jurisdiction of — Oath to and Attendance of Witnesses. — The fire marshal’s jurisdiction is eo-extensive with the State, and he may swear a witness anywhere within the State; but he can compel the attendance of witnesses before him from other parts of the State only in the county where the fire occurred.</p> <p>3. False Swearing — What Indictment For Must Show. — An indictment for false swearing must show that the officer administering the oath had authority to do so, and an indictment which fails to show that the fire occurred in this State is insufficient as the fire marshal has only power to swear witnesses as to fires occurring in the State.</p> <p>4. False Swearing — Sufficiency of Indictment For. — An indictment which shows the truth of the matter alleged to have been sworn falsely, sufficiently to apprise a person of ordinary understanding of the charge against him, is sufficient.</p>

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

<p>1. Personal Injuries — Inflicted by Interstate Carrier — Federal Employers’ Liability Act. — The Act of Congress, approved April 21, 1908, and known as the Employers’ Liability Act, superseded all other statutes, as well as the common law, upon the subject of the liability of a common carrier by railroad for personal injuries to an employee, in so far as the injuries are inflicted by a train engaged in interstate commerce.</p> <p>2. Employers’ Liability Act — Interstate Carrier. — Where a motorman of an electric car, traveling from Newport, Ky., over a bridge spanning the Ohio River, and into Cincinnati, Ohio, was injured by the car jumping the track after it had reached the Ohio side of the river, his cause of action was controlled by the federal Employers’ Liability Act of 1908.</p> <p>3. Evidence — Witness Cannot Be Cross Examined Upon Collateral Pacts for Purpose of Contradicting Him. — It is a rule of evidence that a witness cannot be cross-examined on facts which are collateral and irrelevant to the issue, merely for the purpose of contradicting him, his answers about such facts being conclusive against the party calling for them.</p> <p>4. Evidence — When Witness Can Be Cross-Examined Upon Collateral Pacts. — A witness can be cross-examined on collateral facts only for the purpose of impeaching him, and it is reversible error for the court to admit such testimony to prove a substantive fact, and without limiting such testimony to the purposes of impeachment.</p> <p>5. Evidence — Inspection.—A tribunal of fact receives evidence through three channels; inspection, documents, and witnesses. What the court will allow the jury to see for itself is largely within the administrative function of the judge, who will permit the use of the court room for deviations from the regular routine of trials, only when satisfied that the interests of substantial justice warrant him in so doing.</p> <p>6. Evidence — When Inspection by Jury Will Be Allowed. — Where it is claimed that the defective wheels and brakes of an electric car caused the accident, and a motion is timely made to haive the jury inspect the wheels and brakes, the trial court should sustain the motion, when it can be conveniently done, and it is shown they are in substantially the same condition as they were when the accident occurred.</p>

<p>l]“ Master and Servant — Safe Place to Work — 'When Master Under No Obligation to Furnish Servant Safe Place to Work. — Where the servant is employed to put a place in safe condition for himself and others to work, no obligation rests upon the master to furnish the servant a safe place to work.</p> <p>2. Master and Servant — Safe Place to Work — When Servant Permitted to Rely Upon Judgment of Master. — Where both the master and servant knew that the safety of the structure had been Questioned, but after a test made in tbe presence of tbe master be assured the servant that the structure is safe the servant under such circumstances had a right to rely upon the judgment of the master instead of his own.</p> <p>3. Master and Servant — Assumed Risk. — The doctrine of assumed risk in this State is not usually applied where the master is present in person and giving directions unless the danger is so plain and obvious that any ordinarily prudent man would be justified in refusing to carry out the orders of his master.</p> <p>4. Master and Servant — Safe Place to Work — Rule in This State as to Duty of Master to Provide. — The rule in this State is that when the place in which the servant is engaged in working is not such as imposes upon the master the full duty of providing a safe place, but is somewhat hazardous or dangerous, although not obviously so, or the danger of continuing is not so apparent that a person of ordinary intelligence would not undertake it, and the servant is assured, in substance or effect, by the master, who is present, that it is reasonably safe, or that there is no danger, or is directed by him to go on with the work, the servant may recover for injuries received, although the risk or hazard in prosecuting the work is as well known to the servant as it is to the master.</p>

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

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

<p>1. Carriers — Interstate Commerce — Action by Personal Representative for Death Caused by Negligence — Right of Recovery — How Determined. — In an action hy the personal representative against a common carrier by railroad engaged in interstate commence '“'‘for the death, caused toy its negligence, of an employe, while employed by it in such commerce, the right of recovery must toe determined by the provisions of the act of Congress entitled “An Act Relating to the Liability of Common Carriers by Railroad to their Employees in Certain Cases.” Approved April 22, 1908.</p> <p>2. Carriers — Interstate Commerce — Legislation of State in Conflict With Act of Congress. — The grant of power to ¡Congress in the Federal Constitution to regulate commerce with foreign nations and among the several states is paramount over all legislative powers which, in consequence of not having been granted Congress, are reserved to a ¡State. Therefore, any legislation of a State, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority. For this reason, with respect to the liability of interstate carriers by railroad to their employees injured in such commerce, a recovery toy the injured ; employe or for his death by his personal representative, can be had only under the Employer’s Liability Act of April 22, 1908, which supersedes all State.laws on the subject.</p> <p>3. Carrier — Interstate Commerce — Negligence — ¡Beneficiary — Personal Injury — When There ¡Can Be No Recovery. — As section 1 of the Act provides that the recovery it allows to the personal representative, on account of the death of an employe while ' employed in interstate commerce, resulting from the negligence of the interstate carrier toy railroad, shall toe “for the benefit of ,' the surviving ¡widow or husband and children of such employe, ’ and, if none, then of such employe’s parents, and, if none, then of the next of kin dependent upon such employe,” it expressly limits the right of recovery by the personal representative to the ¡beneficiaries named, in the order named. This toeing so, it neces- . sarily follows that in an action based on the provisions of the act, if there is no beneficiary for whom a recovery can be had, there can be no recovery.</p> <p>4. ¡Carriers — Action toy Personal Representative — Interstate Commerce — Recovery—Pleading.—Proof must toe ¡made of the existence of the surviving beneficiary or beneficiaries entitled under the Act to take the recovery; and, if necessary, to be proved as an element essential to a recovery it is an issuable fact that must toe alleged. So, in such an action, if the petition does not allege that the deceased employee left surviving him a toenefi- • ciary or beneficiaries in whose behalf a recovery can toe had, it should, on demurrer, toe held to fail to state a causé of action. ¡On the other hand, although the existence of such .beneficiary or beneficiaries be properly alleged in the petition, if on the trial, the existence of such beneficiary or beneficiaries toe not established toy the plaintiff’s evidence, the trial court should per-. emptorily instruct the jury to find for the defendant and its failure to do so is reversible error.</p> <p>5. ¡Carriers — Action by Personal Representative — Existence of Beneficiaries — Pleading.—The refusal of the trial court, after the evidence is heard, to allow the filing of an amended petition alleging the existence of ¡beneficiaries entitled to take the recovery under the Act of ¡Congress, is not an abuse of discretion, if the evidence fail to prove the existence of such ¡beneficiaries.</p> <p>6. Employers’ liability Act — What Constitutes Beneficiary Under.— In order to make one a dependent beneficiary in the ¡meaning of the employer’s liability act of April 22nd., 1908, he or she must have sustained some pecuniary loss on account cf the death of the decedent, and the damages recoverable are such as flow from the deprivation of the pecuniary benefits which the beneficiary might have reasonably received, if the decedent bad not died from his injuries.</p> <p>7. Employer’s Liability Act — When Recovery Cannot Be Had Under, Cannot Be Maintained Under Section 6 (Ky. Stats. — Where in an action, which can alone be maintained under the provisions of the Employer’s Liability Act of April 22, 1908, the evidence fails to establish the right of the plaintiff to recover, he will not be permitted to do so under Chapter 1, Section 6, Kentucky Statutes.</p> <p>8. Employer’s ¡Liability Act — Jurisdiction Conferred by — Act of Congress — 'How-Enforced.—The Act of Congress, though paramount and exclusive, may be enforced in the ¡State, as well as the Federal Courts; concurrent jurisdiction to that end ¡being conferred by the Federal Judiciary Act of August 13, 1888, and by the amendment of April ,5, 1910, to the original Employer’s Liability Act.</p>

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

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

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

<p>Carriers — Delivery of Freight to For Shipment — When ¡Liability of Carrier for Loss of Goods Begins. — A common carrier of goods is not liable to the shipper for their loss or destruction without negligence on its part until they have been actually or constructively delivered to it by the shipper and either actually or constructively accepted by it. In other words, the common law liability of the carrier as an insurer of freight does not attach until the freight has been delivered to it for carriage either actually or constructively. But it is not essential that there should .be proof of actual delivery of the goods or evidence that the carrier had taken physical possession of them if it be shown that there was a constructive delivery, as when the goods are placed at a point at which the carrier is in the habit of receiving them or at which, by its course of conduct, it has led the shipper to believe that it would receive them.</p> <p>2. Carriers — Bill of Lading — Effect of. — Thé issual of a .bill of lading by the carrier is not necessary to show delivery of goods to it or its acceptance of them. A bill of lading is merely evidence of the fact of delivery and acceptance, and the issual of a bill of lading is not conclusive evidence of delivery to or acceptance by the carrier, nor is the non-issual of a bill of lading conclusive of the fact that there has been no delivery or acceptance.</p>

<p>1. New Trial — Newly Discovered Evidence — Requisites of Petition.— It is not essential that a petition for a new trial on the ground of newly discovered evidence shall set out in full the record of the old trial, or refer to, and make a part of the petition, this record. The petition will he good if it sets out with sufficient elaboration and certainty the record and proceedings in the former trial to enable the court to determine from an inspection of the petition the grounds upon which a new trial is asked, and to decide whether the newly discovered evidence, if it had been introduced on the trial, would have certainly affected the result.</p> <p>2. New Trial — Newly Discovered Evidence — (Affidavits—-When to be Piled with Petition. — Generally when a party desires to obtain a new trial on the ground of newly discovered evidence, he should, in addition to his own affidavit, stating the reasons why the evidence was not procured and its materiality, file the affidavit of the proposed witness, setting out what he would testify to if introduced as a witness; or if this affidavit cannot be obtained, the affidavit of some other person who can state what the proposed witness would say; but when the newly discovered evidence is to be furnished by the exhibition of physical facts, or when the newly discovered evidence cannot well be made by the evidence of .-witnesses, but depends on the existence of physical conditions that are ¡peculiarly within the knowledge of the adverse party, supporting affidavits are not required.</p> <p>3. New Trial — Newly Discovered Evidence. — New trials are reluctantly granted, and a new trial will not be granted on the ground of newly discovered evidence if tne new evidence is merely cumulative or does not tend to prove facts which were not directly in issue on the trial; nor unless the discovered evidence will have a decisive influence on the evidence to be overturned toy it.</p> <p>4. New Trial — Newly Discovered Evidence — Facts Stated — In a suit to recover damages for personal injuries, the plaintiff testified that his manhood was impaired, and medical ¡witnesses testified as to injuries to his procreative powers, but did not say they were destroyed. More than a year after the trial the wife of the complaining party .became pregnant, and a new trial was sought on the ground that the evidence tending to show lost manhood was false and largely affected the verdict. Held: That as evidence of lost manhood was only one of the injuries complained of, and there was no ¡proof that it was destroyed, the fact that a year after the trial the plaintiff had recovered from this injury, was not sufficient ground to authorize the granting of a new trial.</p>

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

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

<p>Counties — Government—Appointment of Agents or Employes — Stenographers. — The fiscal court is without power to appoint, or to authorize the county judge to appoint a stenographer for said court. (For original opinion see 152 Ky., 535).</p>

<p>1. Sweating — Act to Prevent — Construction of Act. — The act entitled, “An act to prevent sweating process of prisoners arrested charged with crime, and to prevent the admission as evidence of confessions obtained by such process in the State of Kentucky.’’ Approved March 19, 1912, is not unconstitutional. It merely provides a rule of evidence and procedure by which the courts are to be governed, and prescribes punishment for those who employ the methods therein condemned. It is neither unreasonable nor oppressive but was designed to' protect the individual citizen in a right guaranteed by Section 11, Bill of Rights, Constitution, which declares, “He cannot be compelled to give evidence against himself.”</p> <p>2. Sweating — Act to Prevent — Object—Examination of Person Under Arrest. — The “sweating” prohibited by the act may be done by the mere questioning of the person under arrest, charged with or suspected of crime, if such questioning he done for the purpose, and has the effect, of extorting from him, (i. e. inducing an involuntary or unwilling giving of) information to be used against him on his trial for such alleged crime, and if so procured it is inadmissible as evidence. The object of the act is to prevent the modern methods obtaining among detectives and arresting officers, which, though less harsh; are equally as effective as threats and intimidation for inducing confessions, condemned by the common law.</p> <p>3. Sweating — Confession—Proof of Inadmissible Unless Voluntarily Made. — Proof of a confession is never admissible as evidence, unless voluntarily made; that is it must be made of the free will and accord of the defendant, without coercion, whether from fear of any threat of harm, promise or inducement by hope of reward or method known as “sweating.” Where, as in this case, the detective laid a deliberate plan to entrap the defendant into a confession and the circumstances under which the confession was made, make it apparent, that it resulted from methods both artful and deceptive, that must have so agitated the mind of the defendant and aroused his fear as to have had a coercive effect, proof of such confession was properly excluded by the trial court, for it can well be said that the method employed to procure it constituted “sweating” in the meaning of the legislative act.</p> <p>4. Confession — Evidence of Admissible When Voluntarily Made.— ' Evidence of a confession, even when made to an arresting or other peace officer, by a person under arrest, charged with crime, is admissible when voluntarily made; but it should clearly .be made to appear that it came from the defendant under such circumstances as show it to have been made of his free will and accord, with full and perfect knowledge of its nature and consequences, free from the dictation, coercion or inducement of others.</p>

<p>1. Deeds — Execution of Powers — Intention.—It is a sufficient demonstration of an intended execution of a power: (1) Where there has been some reference in the instrument to the power; (2) or a reference to the property, which is the subject on which it is to be executed; (3) or where the provision in the will or other instrument executed by the donee of the power would have no operation, except as an execution of the power.</p> <p>2. Powers — Execution of — Direct Reference to Not Necessary. — In the execution of a power, a direct reference to the power is not necessary; nor is it necessary that the intention to execute it should expressly appear upon the face of the instrument; .but it must be apparent that the transaction is not fairly or reasonably susceptible of any other interpretation than as indicating an intention to execute the power; and this indication is to be collected from all the circumstances.</p> <p>3. Powers — Effect of Execution of. — Where a trustee holding property for the life of one, with the remainder to another, is given power to sell and convey the property and re-invest the proceeds upon like trusts, he may sell and convey the property to the beneficiary of the trust and thus defeat the remaindermen.</p> <p>4. Trusts — Vendee of Trustee Need Not Look to Reinvestment of Proceeds. — Under section 4846' of the Kentucky Statutes, a purchaser of property from a trustee is not bound to look to the reinvestment of the purchase money, unless he be expressly required so to do by the conveyance or devise; and the failure of the trustee to so reinvest the proceeds will not affect his vendee’s title, or render him liable, in the absence of an express provision requiring him to see to the reinvestment.</p> <p>5. Powers — Effect of Execution — Cutting Off Remaindermen. — Where a trustee holding property for the life of one person, with remainder to the beneficiary’s heirs, with power in the trustee to sell the land and reinvest the proceeds, and the trustee exercises the power of selling the land, the remaindermen have no interest therein, and are not necessary parties to an action which questioned the power of the trustee to mate the sale,</p>

<p>1. Homicide — Evidence—Competency.—’Where a person charged with murder had repeatedly told the deceased to discontinue visiting the prisoner’s home, it was competent to show by the neighbors that the deceased visited the prisoner’s home.</p> <p>2. Homicide — Evidence—Dying Declaration. — Dying declarations are admissible to prove the fact of the killing, who was the murderer, and such other facts and circumstances as are immediately attendant on the homicide and form a part of the res gestae. They may extend to the entire circumstances of the fatal occurrence, but should not include narratives of matters not immediately connected with it.</p>

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

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

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

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

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

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

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

<p>1. Railroads — /Compensation to Land Owner for Fencing — Action for Injury- to Cattle — Negligence.—Under section 809, Ky. 'Stat., aland owner who has received compensation for fencing cannot recover for one-half the loss, if the cattle are injured by fright and not injured by the locomotive or cars; but he may recover full damages if the injury is due to the negligence of the servants of the railroad company; and there is no presumption of negligence where the cattle are injured by fright and not by the locomotive or cars.</p> <p>2. Railroads — Action to Recover for Loss of Horse — When Railroad Company Not Liable. — The railroad company is not liable for the loss of a horse due to his taking fright and running down a fence along the right of way, when the engineer failed to stoip his train because he did not know there was danger to the horse, if he failed to stop.</p> <p>3. Railroads — Location of Fences — Engineer Not Required to Know. —A railroad engineer is not required to know the location of the fences set along the right of way by the adjoining owners.</p>

<p>1. Accomplice — What Included in Term “Accomplice” — Criminal Law — Accessories.—The term “accomplice,” in its full meaning, includes all persons who have been concerned in the commission of a crime, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact.</p> <p>2. Evidence — Accomplice—Conviction on Unsupportea Testimony of — Practice at Common 'Law in Respect to. — Under the common law it was not a rule of law, but of practice only, that a jury should not convict on the unsupported • testimony of an accomplice; and if a jury chose to act on such evidence only, the conviction could not be quashed as bad in law.</p> <p>3. Evidence — Accomplice—Cbnviction Upon Testimony of — Provision of Section 241 Criminal Code. — Section 241 of the Criminal Code of Practice, which provides that a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, applies to misdemeanors, as well as to felonies.</p>

<p>1. Mortgages — Given. Without Execution of Note — Action to Enforce —When Will Be Barred. — A mortgage .given to secure the payment of money loaned by the mortgagee to the mortgagors, without the execution by the latter of a note therefor, ig valid, but if not enforced within five years next after the mortgagee’s right to sue for its enforcement accrues, an action thereon will be barred by the five year statute of limitations.</p> <p>2. Mortgages — Action to Enforce Mortgage Lien — Limitation.—If, however, a payment be made by the mortgagors upon the debt secured by the mortgage, within five years next after the loan is made, the statute of limitations will begin to run from the date of such payment, and an action to enforce the mortgage lien brought by the mortgagees at any time within the five years next succeeding the date payment is made on the debt will not be barred by the statute.</p> <p>3. Mortgages — Writing Given at Time of a Payment on the Mortgage Debt — What Does Not Constitute Novation. — A writing, given by the mortgagor to the mortgagee, at the time of making a payment on the debt secured by the mortgage, merely for the purpose of showing the balance supposed to be due upon the debt, did not constitute a novation.</p> <p>4. Novation — Like Other Contracts Must Be Supported by Consideration — What Not A Novation. — A novation is a contract and, like other valid contracts, must be supported by a consideration, which is the discharge of the original debt. If, therefore, the agreement does not, or was not intended to effect the release of the debtor from the old debt, it is not a novation.</p>

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

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

<p>Criminal Law — Obtaining. Property by False Pretenses — Livery Stable Keepers. — Section 1208, Kentucky Statutes. — One who, by false pretenses, obtains from a liveryman the mere use of a borse and buggy is not guilty, under Section 1208, Kentucky Statutes, of obtaining property by false pretenses,</p>

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

<p>1. License Tax — Municipal Corporations May-Impose. — A municipal corporation has the power to impose a license tax on all trades businesses, occupations and professions, and this includes milk dealers.</p> <p>2. License Tax — Uniformity.—(It is not essential that license taxe3 shall be uniform in the sense that all trades, occupations and businesses must be taxed, the rule being that it is competent for the taxing authority to tax persons engaged in a designated trade, occupation or business and exempt or not tax persons engaged in another trade, occupation or business.</p> <p>£. License Tax— Uniformity — Classification.—In the imposition of license taxes, trades, occupations and businesses may be classified, if the classification is made upon a natural and reasonable •basis, and a different license imposed upon -each class, hut when a license tax is imposed upon a class, then it must be uniform upon the class singled out for taxation.</p> <p>4. Ordinances — Construction of. — In the construction of ordinances the intention of the law-making department should be carried out, if this can he done consistently with the fair reading of the ordinance, and likewise an ordinance should be so construed as to sustain its validity, when it is reasonably susceptible of this construction.</p> <p>5. Ordiances — Effect of Unequal and Discriminatory Administration of. — Where municipal authorities go through the form of enacting a valid ordinance, intending that it shall be so applied as to be unequal and discriminatory, the ordinance should be declared invalid when persistently and systematically enforced in an unequal and discriminatory manner against a class intended to he taxed. Otherwise a municipal body so disposed could, by indirection, evade the operation of laws that otherwise must be observed and obeyed. But it is only when it is made «plain that the city authorities systematically administer an ordinance unequally to give advantage or preference to an individual or class of individuals, to whom no advantage or preference could he shown if expressed in the ordinance, that it will be declared invalid at the instance of an individual or class discriminated against by the partial execution of the ordinance by the city authorities.</p> <p>6. Milk Depots — Definition of. — Where an ordinance provided that all persons selling milk at milk depots should pay a specified license fee, the words “milk depot” should he construed to mean any place at which milk is sold whether exclusively or in connection with other lines of business.</p>

<p>1. Judicial Sales — Liabilities of Bidder — Court Commissioner.— Where the court was largely induced to set aside a report of sale of real estate by a proposal, accompanied by bond as a guaranty, of good faith, to become a bidder at a resale at a price in advance of that reported, and authorizing the commissioner to bid and execute bonds for him, it was the duty of the commissioner to cry and report said bid if the highest; and such bidder must take the property and comply with the terms of sale. As his agree, ment was made -with the court, he cannot be relieved of his liability, by any action on the part of the property holders or other interested parties, without the consent of the court.</p> <p>2. Judicial Sales — Bidders—Courts—Jurisdiction.—Where in a judicial sale of property, one proposes to 'become a bidder at a resale, if the report of sale is set aside, and is permitted by the court to file his proposal,.he thereby becomes a party to the action and is bound by the further orders of the court.</p> <p>g. Judicial Sales — iPayment of Bid. — Payment of the amount of purchase money, or bonds therefor, of a bidder at a judicial sale of property, if his bid is accepted by the court, may be -enforced by summary process.</p>

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

<p>1. Appeal — Jurisdiction.—An appeal lies from a fine exceeding $50 although recovered in a penal action.</p> <p>2. Appeal — Separate Offenses — When Commonwealth Cannot Object to Its Own Petition. — The Commonwealth having filed a penal action setting out in different paragraphs separate offenses, cannot on appeal object to the form of its own petition.</p> <p>3. Quail — When Not Unlawful to Have in Possession — Caught or Killed Outside of This State. — It is not unlawful under Section 1944 Ky. Stat., to have quail in possession during the closed season if they were not caught or killed in this -State.</p> <p>4. Quail. — No one may lawfully offer for sale quail caught or killed in this State at any time.</p> <p>5. Quail — One May Not Offer For Sale in Closed Season Though Caught ¡or Killed in Another State. — No one under Section 1951 Ky. Stat., may lawfully offer for sale or sell during the closed season quail though it was caught or killed in another State.</p>

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

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

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

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

<p>1. Municipal Corporations — Street Improvements — Abutting Owners — 'Ordinances—Contracts.—As the common council of a city of the third class is empowered by sections 3449 to 3459, inclusive, Kentucky Statutes, to require the improvement of its streets and sidewalks at the cost of the owners of the abutting property, if it is made to appear that the ordinance directing such improvement is legally passed and the subsequent proceedings, with respect to the letting of the contract, the doing of the .work, its acceptance ■by the council and apportioning of the cost, are regular, neither the owners of the abutting property nor the property can escape liability therefor, unless in adopting the ordinance and requiring the improvement the council acted corruptly, or the doing of the work is confiscatory in effect.</p> <p>2. Municipal 'Corporations — Street Improvements — Discretion of Common Council. — The question of whether the streets or sidewalks of a city should be repaired, changed or improved, is a matter that addresses itself solely to the discretion of the common council of a city, as is the further question as to what the character and extent of the work should be; and tfie courts will not interfere with such discretion.</p>

<p>Insurance, life — Condition as to 'Good Health. — The condition in a life policy that it shall not he binding upon the company unless the insured was in good health at the time of the delivery of the policy, applies only to unsoundness of health arising after the application and medical examination.</p>

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

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

<p>1.. Executors and Administrators — Public Administrator. — The ■ county court has no jurisdiction under section 3905 of the Kentucky Statutes to place the estate of a decedent in the hands of! the public administrator until after the expiration of three months from the death of the decedent, although the appointment may be made at the request of .an individual entitled to administer on the estate.</p> <p>2. 'Statutes — Construction of by Court of Appeals — (Effect of. — When a statute is fairly open to two constructions, either one of which will carry out its purpose, and this court, upon full consideration, adopts one of these constructions, it should be adhered to, especially when the adopted construction has become a settled part of the law.</p> <p>3. Parties — 'Capacity of Plaintiff to Sue 'Should he Raised hy Special Demurrer. — The proper manner in which to raise the objection that the plaintiff has not legal capacity to sue is hy special demurrer, pointing out the ground on which the demurrer is based.</p>

<p>1. Courts — County Judge in Trial of Misdemeanor Cases — When Defendant in Jail — Sits Either as Judge of Quarterly or County Court. — A county judge in trying misdemeanor cases coming to him from the circuit court where the defendant is in jail, sits either as the judge of the quarterly court or the county court.</p> <p>2. Jailer — Attendance Upon County and Quarterly Courts — Compensation — Special Terms. — The jailer is entitled to compensation for attendance on terms of the county court or the quarterly court, which are held in the court room, but not for attendance on special terms held elsewhere, and he is entitled to compensation for attendance on the regular terms of the county or quarterly courts though not held in the court room, if he in fact attends.</p> <p>3. Jailer — Attendance Upon Quarterly and County Courts — 'Compensation for. — The jailer is entitled for his attendance to not exceeding $2 a day, the amount to depend upon how long he attends and what he does.</p> <p>4. Jailer — Attendance Upon Examining Trials — Compensation.—The jailer is not entitled to compensation for attendance at examining trials held by the county judge, as in holding these trials, the judge does not sit as a county or quarterly court</p> <p>5. Jailer — Attendance at Lunacy Inquests — Compensation for. — The jailer is entitled to compensation for attendance at inquests of lunacy held before the county judge if held in the court room and he in fact attends. The county judge in holding such inquests sits as a county or quarterly court.</p> <p>6. Jailer — Allowances to Which Not Entitled — Recovery of — Pleading. — Money paid the jailer under previous allowances to which he was not entitled may be recovered by way of set off, but the facts must be pleaded showing that the money was improperly .paid.</p>

<p>1, Criminal Law — Trial—Evidence—'Order of Introduction. — It is error to require the defendant to stand up- by the side of the prosecuting witness during the argument of the Commonwealth attorney that the jury may see clearly the relative size of the two, as all the evidence should he introduced before the argument for the defendant is made.</p> <p>2. Indictment — Continuation of Former Prosecution — When Question Should Not he Submitted by Instruction. — The indictment showing on its face that it is a continuation of a former prosecution, there being no contrary evidence, and the orders of the court being read, the question should not be submitted to the jury by an instruction.</p> <p>S. Criminal Law — Wilful and Malicious Shooting — Trial—Evidence —Instructions.—There being evidence warranting the conclusion that the defendant wounded another in a’ reckless shooting and not in. a sudden affray and sudden heat and passion, an instruction submitting to the jury the common law offense should have been given.</p> <p>4. Appeal — Granted as Matter of Eight in Felony Case — ¡Suspension of Judgment — When the defendant prays an appeal it should he granted as. a matter of right in a felony case, and as a matter of right if he so desires it, the judgment should be’ suspended for sixty days. *</p>

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

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

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

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

<p>1. Evidence — Burden of Proof — Master and Servant — (Action for Death of Servant. — The burden of proof is upon the plaintiff to make out his case and he fails to do this where on all the evidence for him it is a matter of speculation when or where the. decedent was injured.</p> <p>2. Evidence — When Error in Ruling Out Not Ground for Reversal.— An error of the court in ruling out evidence is not ground for reversal where the evidence if admitted could have had no effect on the result.</p>

<p>1. Wills — Validity—Undue Influence — Testamentary Capacity. — While a will may be valid as to one devisee, and, on account of undue influence, invalid as to another; one portion of a will should not be rejected for want of testamentary capacity alone, while another part, written at the same time and no more plainly expressed, is admitted to probate, unless it be shown by the evidence, that the testator’s mind, with respect to the subjects treated of or devisees affected by that part of the will set aside by the verdict, had been so prejudiced or unbalanced as to destroy his testamentary capacity to make that part of the will.</p> <p>2. Wills — Undue Influence — Absence of Evidence of — Probate.— Where the circumstances attending the execution of a will show it to have been made by the testator after a survey of his estate, a selection of the objects of his bounty, a full knowledge of its meaning and effect and in pursuance of a fixed purpose formed and expressed before its execution, it should, in the absence of evidence showing that its execution resulted from undue influence exercised over the testator’s mind and will, be admitted to probate.</p> <p>3. Wills — Proof of Execution — Testamentary Capacity — BUrden of ‘Showing Want of. — After due execution of a will is proved by the propeunders, the 'burden of showing that the testator lacked testamentary capacity, or that of showing that the will was procured by the exercise of undue influence, is upon the contestants; and, as to the latter ground of contest, it is not sufficient that it be shown that there was an opportunity to exercise undue influence, or that there was a possibility that it was exercised. Some evidence must be adduced showing that such influence was exercised.</p> <p>4. Wills — Policy of Daw Respecting Making of — Juries Not Permitted to Make in Accord With Their Ideas. — The law permits the owner of property, who is of sound mind and disposing memory, to transmit it by last will and testament in such manner, as pleases him, and juries are not permitted to make for him a will that accords with.their ideas of justice and propriety; nor are they permitted to suspect away the right of the testator to dispose of his property in accordance with his own will and desire.</p> <p>5. Wills — Appeal—Reversal—Direction to Circuit Court to Require County Court to Admit to Probate. — Where on appeal to the Court of Appeals, the record of the trial in the circuit court, shows that there was no evidence conducing to prove the want of testamentary capacity, or that the making of the will was procured by undue influence, the Court of Appeals, in reversing the judgment, will instead of ordering a new trial, direct the circuit court to require the county court to admit the will to probate.</p>

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

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

<p>1. Guardian and Ward — Appointment of Guardian — Jurisdiction—■ Void Appointment — Section 2015, Kentucky Statutes. — Where an. infant is not a non-resident owner of real estate, or the appointment of the guardian is not made by the will of his father or mother, only the county court of the county where the infant resides has jurisdiction to .appoint a guardian. The appointment of a guardian by the county court of a county in which the infant does not reside, and the acts of the guardian pursuant to such appointment, are void.</p> <p>2. New Trial — Newly Discovered Evidence — Sufficiency and Effect.— A new trial on the' ground of newly discovered evidence will not be granted unless the evidence be of a decisive character, and such as to render a different result reasonably certain.</p> <p>3. New Trial — Newly Discovered Evidence — Sufficiency and Effect.-^ A new trial will not tie granted on the ground of newly discovered evidence when the evidence tends only to discredit or impeach a witness.</p>

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

<p>Pleading — Evidence—Variance.—In an action by appellee against tbe personal representative of bis deceased brother for certain sums of money alleged to have been held by the brother for appellee’s use and benefit, held, that the allegations of the petition -when, tpficen and read together must be interpreted to mean that the deceased brother had received from the family estate a certain sum which he held for the use and benefit of appellee, and it can in no sense be said that by the proof that his father gave the decedent the money instead of his mother, there was a total failure of proof under the pleadings. The two allegations of the pleading when taken together are such that there was in fact no variance; certainly not a failure of proof, and the judgment in appellee’s favor was properly rendered.</p>

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

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

<p>1. Intoxicating Liquors — Operation of Saloon by Administrator — Engaged in Business as Agent of Decedent’s Estate. — Tbe administrator having continued to run a saloon owned by his decedent, and having renewed the license from year to year in his own name, he employing all the help and buying all the supplies, is engaged in the liquor business as the agent of his decedent’s estate, although he had no interest in the proceeds of the saloon.</p> <p>2. Insurance, Life — Fraternal Insurance — Estoppel—Notice.—i The local lodge having collected assessments in violation of the bylaws of the Order, and when the by-laws provided that such payment for assessments should not be a waiver of the forfeiture, the Order is not estopped to rely on the violation of the by-laws as the members are charged with notice of the by-laws of the Order.</p>

<p>1. Insurance, Life — Fraternal Insurance — Section 679, Ky. Stats.— Under 679 Ky. Stats., the constitution and by-laws of the Order unless contained in and attached to the certificate, constitute no part of the contract, and this rule applies as between all presons interested in the certificate.</p> <p>2. Insurance, Life — Fraternal Insurance. — The act of March 24, 1906, exempting certain societies from the operation of section 679 Ky. Stats., has no application to certificates issued before it to oh effect.</p> <p>3. Insurance, Life — Benefit Certificate. — A member may dispose by will of a benefit certificate payable to his personal representative.</p>

<p>1. False Arrest — Officer When Not Liable For. — An officer is not liable for making a false arrest when he does so under a warrant issued by lawful authority.</p> <p>2. Malicious Prosecution — Requisites of Petition in Action for. — It is essential to the sufficiency of a petition in an action for malicious prosecution that it should aver that the prosecution was malicious and without probable cause.</p>

<p>Deeds — 'Construction of Deeds Conveying an Undivided Interest in Land Received From Ancestor. — Where heirs, after reaching maturity, seek to recover a tract of land owned hy their father and devised to them, upon the ground that they were ignorant that their father owned it when they made the deed conveying to ' the grantee “all their interest in their father’s estate,” the deed will control, in the absence of fraud or mistake or the most convincing evidence that the heirs were ignorant of the extent and boundary of the estate owned by their father.</p>

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

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

<p>1. Schools and School Districts — Cities of Fourth Class — Taxation —Mandamus.—Taxes levied by the board of council of a city of the fourth class to create a sinking fund to redeem bonds issued by the city for the purpose of erecting school buildings are included within the 50-cent tax limit prescribed by sub-section 2, section 3490, Kentucky Statutes, and the Board of Education cannot require the levy of a tax of 50 cents on the $100 in addition to the taxes so levied for sinking fund purposes.</p> <p>2. Schools and School Districts — Kentucky Statutes, Suih-section 2, Section 3490 — Act Approved March 24, 1904, Chapter 112, Acts 1804. — Under sub-section 2, section 3490, Kentucky Statutes, the tax rate for the maintenance of public schools or the erection of public school buildings for cities of the fourth class is limited to 50 cents, and this rate cannot be exceeded unless a majority of the voters voting upon the question at an election held pursuant to the amendment of March 24, 1904, chapter 112, Acts, 1904, authorize an additional tax not exceeding fifteen cents on the $100 worth of taxable property.</p>

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

<p>1. Contracts — -Agreement .Necessary.- — An agreement between the parties is an essential element in the formation of a contract.</p> <p>2. Contracts — Agreement.—-An agreement is the expression by two or more persons of a common purpose to affect their legal relations; it consists of their being of the same mind and intention concerning the matter agreed upon; and, if the parties were never of the same mind and intention concerning the subject-matter of the alleged contract, there was no contract.</p> <p>3. Insurance, Fire — Wrong House Insured. — Where the owner of a house upon the north side of a railroad instructed a fire insurance agent to issue a policy of insurance thereon, and the agent examined a house upon the south side of the railroad which belonged to a third person, and issued a policy upon said house, properly describing it, there was no meeting of the minds of the-agent and the owner of the house on the north side of the railroad, and the latter cannot recover under the policy for the loss of his house by fire.</p> <p>4. Insurance, Fire — Wrong House Insured. — In the case above mentioned, the owner of the house upon the north side of the railroad can recover the premium paid upon the policy, it having been paid without consideration.</p>

<p>1. Pleading — Petition—Test of Sufficiency. — Tie general rule by which the sufficiency of a petition, under the Code, is to be tested, is whether the petition informs the defendant of the nature of the demand so that he may not be misled in the preparation of his defense.</p> <p>2. Pleading — (Sufficiency of Petition. — If a petition states facts which entitle the plaintiff to any relief, it is sufficient even though it contains a demand for relief to which plaintiff is not entitled, and, if sufficient facts are stated to make a cause of action, the pleading is not vitiated by the further averment of legal conclusions respecting the effect of the facts alleged.</p>

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

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

<p>1. Damages — Personal Injury — Explosives— Negligence — Evidence— Competency. — Where in an action for damages against a construction company for negligently allowing dynamite caps to remain in an exposed and unguarded condition, resulting in injury to plaintiff, there is no direct evidence that any employee of the company placed the caps in that position, but the possession and use, by the employees, of similar explosives is relied on to establish that fact, evidence that defendant’s employees knew that it was dangerous to place the caps in such a position, and that none of said employes bore ill will toward the company, was admissible for the purpose oí rendering less probable the inference that some employee of the company, either negligently or maliciously, placed the caps where they were found.</p> <p>2. Damages — Personal Injury — Explosives—Negligence—Evidence — Competency. — in an action for damages against a construction company for negligently allowing explosives to remain in an exposed and unguarded condition, evidence that on former occasions the magazine in which such explosives were kept had been broken open and certain of the contents removed therefrom by persons other than employes of the defendant company, was, in the absence of direct evidence on the question, admissible for the purpose of reducing the probability that the explosives were placed in such position hy defendant’s employes.</p> <p>3. New Trial — Newly Discovered Evidence — 'Sufficiency and Meet. —A new trial on the ground of newly discovered evidence will not be granted unless the evidence be of a decisive character, and such as to render a different result reasonably certain.</p>

<p>Wills — Construction—Punctuation Marks In — When Will Be Disregarded. — In construing a will the court will not he governed by the punctuation marks alone, and will disregard the punctuation, where, upon the whole will, the punctuation is evidently an error.</p>

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

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

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

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

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

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

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

<p>1. Carriers — Interstate—Liability—Contract Limiting Amount of (Recovery — -Validity.—An interstate carrier may, by fair, open and reasonable agreement, limit tbe amount rcoverable by the shipper to an agreed value, made for the purpose of obtaining the lower of two or more rates proportioned to the amount of risk.</p> <p>2. Carriers — Interstate—Carmack Amendment — Liability of Carrier.— In enacting the Carmack Amendment to the Interstate Commerce Act, it was not the purpose of Congress to lessen in the slightest degree the previously existing liability of the initial carrier or of any connecting carrier; on the contrary, the purpose of the enactment was to continue the previously existing liability of both the initial and connecting carrier, and in addition, thereto, impose upon the initial carrier in certain cases liability that had theretofore existed on the part of the connecting carrier alone.</p> <p>3. Carriers — Live Stock — Liability.—The carrier of live stock is a common carrier, and is liable for any loss or damage not due to the act of God or the public enemy or the public authority, or to the inherent or proper vice of the animals, unless attended by some negligence on his part.</p> <p>4. Carriers — 'Live Stock — Failure to Deliver — Liability—Excepted Causes — Burden of Proof. — A failure of a carrier to deliver a shipment of live Stock imposes upon him the burden of proving that the loss resulted from some cause for which he was not responsible in law or by contract.</p> <p>5. Carriers — Tender—'Pleading—Proof.—Where a carrier sells injured live stock, and plaintiff claims a conversion because the stock was ■sold without right or authority of law, and this allegation of the .petition is denied, the carrier may, without pleading a tender, prove that the stock was tendered to plaintiff before the sale.</p> <p>6. Carriers — Tender of Injured Stock — Refusal to Receive — Ri'ght to Sell — Conversion.—Where the shipper of live stock is both the • consignor and the consignee, a carrier, after tender of the stock injured to the shipper, and his refusal to receive it, may sell the stock, and such sale will not amount to a conversion.</p> <p>7. 'Carriers — Loss or Damage to Live Stock — Measure of Damages.— Where, by fair, open and reasonable agreement the liability of a common carrier of live stock is limited to $75 per head, the measure of damages for stock killed is $75 per head, and for stock injured and sold by the carrier, after tender to the shipper and his refusal to accept, the measure of damages is $75 per head for the stock bringing less than that amount, while for the stock bringing more than that amount the measure of damages is the sale price of such stock less the expense of their sale and the reasonable cost of their keep from the time that they were injured, the liability in no event to 'he less than $7.5 per head.</p>

<p>Deeds — (Return of Unrecorded Deed to Grantor — Cancelling Note of Grantee — When Grantee Estopped to Set Up Title in Property.— An unrecorded deed having been returned to the grantor :by an agent of the grantee without authority of the grantee and the grantee’s note having been returned to him marked cancelled, and the grantor having with the knowledge of the grantee and without objection on his part conveyed the property to another,- the grantee is estopped to set up title to the property ten years thereafter when he acquiesced in the rescission of the contract at the time the decision was had; and by reason of a change of conditions the purchaser cannot be placed in statu quo.</p>

<p>1. Dower — Under Sec. 2132 of the Kentucky Statutes, providing that a surviving wife shall have an estate for life in one-third of the real estate of which her husband, or any one for his use, was seized of an estate in fee simple during the coverture, unless the right has been barred, it is not essential to entitle the widow to dower that her husband should have ¡been in the actual possession of the land at the time of his death or indeed at any time. The test of the widow’s right to dower is, was the husband seized of an estate in .fee simple during coverture and did he have the right of possession? If so, although he may never have been in the actual possession, the widow is entitled to dower.</p> <p>2. Dower — Forfeiture by Adultery. — Under Sec. 2133 of the Kentucky 'Statutes, providing that if the widow voluntarily leave her husband and live in adultery, she shall forfeit her right to dower, it is not essential to defeat the widow’s right, to dower that she should voluntarily leave her husband and live in adultery, as she may forfeit her right by adulterous conduct while living with her husband.</p>

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

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

<p>Costs — Violation of City Ordinance — When Judgment of Cost Will Not Be Rendered Against City — Appeal.—In a prosecution for a violation of a city ordinance, no judgment of cost can tie rendered against the city either in the police court or on appeal.</p>

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

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

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

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

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

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

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

<p>1. Injunction — Temporary Injunction — Reinstatement—Authority oi Judge of Court of Appeals. — A judge of the Court of Appeals had power to reinstate, after its dissolution a temporary injunction granted by a circuit court clerk, where notice of the application therefor had been given the opposing party and he had opportunity to, or did, resist such application.</p> <p>2. Appeal — Injunction—Temporary Injunction — Reinstatement—Notice — Estoppel.—A party, upon an appeal from a final order, cannot object to defects in notice of application for a temporary injunction where, on application to a Judge of the Court of Appeals to reinstate an order dissolving such temporary injunction, he failed to urge such objections.</p> <p>3. Counties — (County Seat — Elections—Constitutional Law. — The provisions of an act creating a county directing the location of the county seat to be determined by a vote of the people of such county, are valid; a provision for holding an election for that purpose, at a time other than at a regular election, is void.</p> <p>4. Counties — Judges—Elections.^—Under the .act creating the county of McCreary and directing the county seat to be located as may be determined by vote of the people, it is the duty of the county judge of that county to provide for the form of ballot and give notice of the election. The counting of ballots, the canvassing and certifying of the returns of the election must be conducted as in other elections.</p>

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

<p>1. Guardian and Ward — Investment—Purchase or Improvement of Real Estate — Power of Guardian to Invest in Excess of Funds in Hand. — A guardian is. not authorized to purchase real estate for his ward, or to improve real estate belonging to his ward, where the purchase price or the cost of the improvements is in excess of the funds in his hands.</p> <p>2. Guardian and Ward-Refusal to Approve Real Estate Investment — (Practice.—Where the court refuses to approve an investment in real estate made by a guardian for the benefit of his ward, and charges the guardian with the amount of money so invested, he should direct and require the master commissioner, for and on behalf of the guardian and the infants, to convey the property to the guardian individually.</p>

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

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

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

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

<p>1. Wills — “Issue”—When a Word of (Limitation. — In a will the term “issue” may be employed either as a word of purchase, or of limitation, according to which sense will best effectuate the testator’s intention. It is usually construed as a word of limitation, and not of purchase, unless there be controlling words, clearly showing that the contrary meaning was intended by its use.</p> <p>2. Wills — Estate Tail Converted Into a Fee. — Where a testator devised his property to his daughter during her natural life, “and after her death said property is to be held in trust for her children now living and their lawful issue,” the grand-children took an estate tail which, under section 2343 of the Kentucky Statutes, is converted into an estate in fee simple.</p>

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

<p>Finding of Chancellor — Evidence—Sufficiency.—In an action on a contract the evidence examined and held sufficient to sustain the finding of the chancellor in favor of the plaintiff.</p>

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

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