Volume 154 — Kentucky Reports

<p>1. Deeds — Construction—Distinct Interests or Titles. — A deed, purporting to convey the undivided interest of the grantor in and to the lands therein described, passes all interest of every character, then owned or claimed by the grantor, in said lands.</p> <p>2. Adverse Possession — Tenancy in Common — Limitation of Actions. — As a general rule, the possession of one cotenant is amicable and not adverse to that of another cotenant, but such possession may be adverse and, if continued uninterruptedly for fifteen years, will ripen into a perfect title.</p> <p>3. Limitation of Actions — Adverse Possession — Notice—Tenancy In Common — To set the statute of limitations in motion in favor of one cotenant against another, actual notice of adverse holding, or such open and notorious claim of ownership or exercise of such claim of right as to justify the inference of adverse possession, must be brought home to the disseized cotenant.</p> <p>4. Partition — Action—Evidence—Weight and Sufficiency — Limitation of Actions — Adverse Possession — Tenancy In Common. — In an action for the partition of lands by a vendee of a cotenant against other cotenants, or those holding under them, evidence •held sufficient to suport the pleas of adverse possession and limitation of actions.</p>

<p>1. Contracts — Construction of — A contract obligating tbe signers to “guarantee an overdraft to tbe First National Bank to tbe extent of $4,500; all tbe receipts of tbe White City Co. to be deposited in tbe bank until tbe above is extinguished;” was not & continuing guaranty but a guaranty of. an existing overdraft.</p> <p>2. Contracts — Extrinsic Evidence to Show Meaning of. — Wthere a written contract is not open to two 'or more constructions, the rights and liabilities of the parties under it are to be determined by the paper alone, and its meaning cannot be extended or modified by extrinsic evidence.</p> <p>3. Banks — Rights and Liabilities of Officers of a Bank Who Sign a Guaranty to it. — Tbe liability of bank officers who sign a paper guaranteeing to it tbe payment of a note, is not increased by their relation with tbe bank. They are to be treated as other customers dealing with tbe bank.</p>

<p>1. ' Practice — Right of Court to Set Aside Consent Orders and Judgments — ¡When the ends of justice require it, the court in which an order or judgment is entered, although it be by consent, may set it aside upon the motion of either of the parties if the motion is made while the court has control of the order or judgment, but before the court sets aside a consent order or judgment the party asking that it be done should present good and sufficient reasons therefor.</p> <p>2. Practice — 'Civil Code — Section 333 — Construction of — Waiver.—■ Section 333 of the civil code providing in substance that objections and exceptions must be made and taken by a complaining party before he will be heard afterwards to object to an order or ruling of the court, do not apply with the same binding force in the court in which the ruling or order is made as they do in this court. The court in which the order or judgment is made may for good reasons set it aside, although, it is entered by consent or without objection; ,but a party who brings his case to this court cannot avail himself here of erroneous rulings or orders made in the lower court unless he has, in the manner pointed out in section 333, saved an exception or an objection to the order or ruling he complains of.</p> <p>3. Bills and Notes — Endorsers —A person who places his name upon commercial paper other than as maker, drawer or acceptor is deemed to be an endorser, unless he indicates by proper words in the endorsement his intention to be bound in some other capacity.</p> <p>4. Banks — Vice-President Not Responsible If Notice of Dishonor of Paper is Not Given. — The vice-president of a bank by virtue of his office is not charged with the duty of seeing that notice o£ the dishonor of paper is given to the person entitled thereto, or liable in any manner if he fails to do so.</p> <p>5. Banks — When Bank Officer Estopped to Deny Liability on Paper Because Notice of its Dishonor Not Given. — Where an officer of a bank is one of the signers of commercial paper executed to the bank, he is entitled to notice of the dishonor of the paper to the same extent as if he was not connected with the bank, unless it was his duty as an officer of the bank to give such notice; and if it was, he will be estopped to plead want of notice as a defense to a suit by the bank against him.</p>

<p>1. Pleading — Defect-—When Cured hy Verdict. — The omission of a fact essential to a cause of action will not he cured hy the verdiet, when there is no admission or proof of the fact, nor submission of the question to the jury.</p> <p>2. Judgment — Non obstante veredicto — Not Allowed After Motion for a Peremptory Which Should Have Been Sustained. — A party is not entitled to a judgment non obstante veredicto where at the conclusion of the evidence he moves for a peremptory instruction and his motion should have been sustained.</p> <p>3. Insurance, Fire — Forfeiture for Additional Insurance — Waiver—• Evidence. — Evidence that an agent at the time of the taking out of a policy consented to additional insurance is admissible on the question of waiver.</p> <p>4. Insurance, Fire — Agent—Evidence—Admission.—Proof of knowledge of an insurance agent authorized to solicit insurance and issue policies of additional insurance may be shown by proof of his admission of knowledge made during the continuance of the agency.</p> <p>6. Evidence — Letter—Proof of Contents — Practice.—Where a letter is in the possession of the adverse party it is the proper practice to give him reasonable notice to produce it, before receiving other proof of its contents.</p>

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

<p>Intoxicating Liquors — Licenses.—A municipality may, by ordinance enacted under statutory authority, not only make it unlawful for one to sell intoxicating liquors on Sundays, election days, or holidays, but may restrict the sale to certain hours of the day time, or require saloons to be closed during the hours of the night.</p> <p>2. Licenses — Revocation of — A municipality may make it a condition in granting a liquor license, that it shall be revoked by the Mayor if the licensee shall be convicted of violating the ordinance by keeping his saloon open on Sunday.</p> <p>3. Licenses — Revocation of — Where a Ministerial Duty. — Where a municipal ordinance provided that a liquor license should be revoked by the Mayor upon a conviction of the licensee for selling liquor on Sunday, the Mayor performed a mere ministerial duty in revoking the license, and it was not necessary for him to give the licensee notice, or a hearing,, before the license could be revoked.</p> <p>4. Licenses — Revocation of on Conviction of Bar Tender. — Where a bar tender appeared in person at the city clerk’s office and, represented to the clerk that he was the owner of the saloon, and received the license, signing for it in the name of the owner, and executed a bond in the name of the owner, without disclosing the fact that he was the bar tender, and a different person, the con- ! viction of the bar tender for selling liquor on Sunday is sufficient to authorize a revocation of the license which had been taken by the bar tender in the name of the real owner.</p>

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

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

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

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

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

<p>1. Negligence — Damages—Injury to One Contractor t>y Negligence of AnotiLer. — The Louisville Commissioners of Sewerage are not answerable in damages for an injury done to one contractor by tbe negligence of another contractor for the building of a sewer.</p> <p>2. Negligence — Damages—Injury to Contractor Engaged in Public Work — Liability.—One contractor who injures another contractor by his negligence is. liable therefor, in the case of a public work just as he would be in the case of a private work.</p>

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

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

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

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

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

<p>'1. Carriers — Livestock—Insufficient Facilities for Loading — Liability — Instruction.—In an action for damages for injury to livestock alleged to have resulted from the failure on the part of the carrier to furnish reasonably safe facilities for loading, an instruction telling the jury that if they believe from the evidence that the plaintiff or his agent' ordered and directed the defendant to place one of its cars at the freight house instead of at the company’s regular place for loading the livestock, and then and there agreed with the defendant to take charge of the loading at tbe freight house, plaintiff thereby adopted the means at hand at the freight house for loading the stock, and the only duty which the law imposed upon the defendant was to exercise ordinary care in so placing its car at the freight house platform as to afford the plaintiff an opportunity to load the stock into the car with reasonable safety, is erroneous because imposing upon the carrier the obligation to exercise ordinary care to place the car at the freight house platform so as to afford the plaintiff an opportunity to load his stock with reasonable safety, even though the facilities for loading were such that in the exercise of ordinary care this could have been done.</p> <p>2. Carriers — Livestock—Insufficient Facilities for Loading — Liability —Instruction.—Where the shipper designates the carrier’s freight house as the place for loading instead of the carrier’s regular place. for the loading of livestock, and agrees with the carrier to take charge of the loading at the freight house, the carrier is not liable for a failure to furnish reasonably safe facilities for loading, unless the facilities for loading at the freight house were such that, in the exercise of ordinary care, the car could have been placed so as to enable the shipper to load the stock with reasonable safety, and the carrier failed to use such care, and by reason thereof the stock was injured</p> <p>3. Pleading — Answer—Two Defenses in One Paragraph — Demurrer. —Where a paragraph of an answer contains two defenses, one" of which is demurrable and the other not, it is error to sustain a demurrer to the paragraph as a whole.</p>

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

<p>1. Insurance, Life — Contract—Liability—Want of Consideration for Note of Premium, — Tbe application for a policy of insurance providing that no contract of insurance shall be deemed made, and no liability on the part of the company shall arise until the policy is issued and delivered to the insured in good health, no liability for the premium exists where the insured refuses to accept the policy when tendered to him, the contract of insurance never having become binding; and there is no consideration for a note executed by the insured for the premium.</p> <p>2. Insurance, Life — Agreement to Accept Policy — When Not Binding. — An agreement in the application by the insured to accept the policy, if issued, being based on no consideration is not binding and he may withdraw his proposition at any time before the contract is closed. “</p>

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

<p>Master and Servant — Action for Damages — Former Opinion — Evidence Supplied — Negligence.-—In an action by a servant for damages tbe judgment awarding damages was reversed upon a for* mer appeal for failure of evidence, but upon tbe present appeal tbe evidence pointed out was supplied, there is no error in tbe instructions and tbe judgment complained of was properly rendered.</p>

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

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

<p>X, Municipal Corporations — Ordinance—-When Void. — An ordinance passed by a municipality cannot be invalid upon any other ground than its illegality. It is not within the province of the court to say that a valid ordinance is unwise or impolitic; those questons must be addressed solely to the General Council.</p> <p>2. Municipal Corporations — Ordinance—Discussion of. — It is not for the courts to say how much discussion the General Council should allow before adopting an ordinance, or that parliamentary rules of procedure should be applied otherwise than under the ordinary rules of such procedure.</p> <p>3. Municipal Corporations — Amendment of Ordinances. — -Section 2777 of the Kentucky Statutes, whch provides that no ordinance shall be altered or amended in any way except by repealing it, ■ was intended to prevent loose legislation of doubtful meaning rather than to control parties in the exercise of their rights under existing ordinances.</p> <p>4. Municipal Corporations — Granting of New Franchise Upon Expiration of Original Franchise. — Where a gas franchise expires, and the city is required under section 3037d of the Kentucky Statutes to sell a similar franchise, the owner of the expiring franchise is the only one that can complain if the city offers to sell a new franchise different from the one that has expired.</p> <p>6. Municipal Corporations — Power to Contract as to Existing Franchise. — A municipality cannot, in the absence of express legislative authority, make contracts or pass by-laws which would cede away, control or embarrass its legislative or governmental powers, or which would disable it from performing its public duties; but this rule does not prevent the municipality from contracting with the owner of the franchise to waive a contract right.</p> <p>6. Municipal Corporations — Power *to Contract. — Where, under the charter of a gas company, the city had the right to purchase the plant at the expiration of the charter, the city has the power to grant a new franchise and to postpone the purchase of the plant until the expiration of the new franchise.</p> <p>7.' Municipal Corporations — Power to Contract for Future Maximum Rates for Electricity. — Where a municipality expressly reserves the right to make reasonable regulations of rates for electricity, an. ordinance which provides that the city will, in the future, pass an ordinance fixing maximum rates for electricity to which the owner of the franchise to furnish electricity agrees, the ordinance is not illegal upon the ground that it undertakes to commit the General Council, in advance, to certain maximum rates, since the General Council may, at any time, fix other rates provided they be reasonable.</p> <p>8. Public Policy — How Expressed. — The public policy of a State is expressed in its Constitution and Statutes, and in its common law as found in the opinions of its court of last resort; and if the Constitution or Statutes speak upon a subject, the public policy of the State is fixed to that extent.</p> <p>9. Municipal Corporations — Contract—Public Policy. — The act of a municipality which has the sanction of law, cannot be against public policy.</p> <p>10. Trusts — Pools—Subject to Fine Only. — Under the Act of 1906 (Kentucky Statutes section 3941a), known as the “Pooling Statute,” and which amended the Act of 1890 (Kentucky Statutes, 3915 to 3941 inclusive) against “Pools, Trusts and Conspiracies,” there is no prohibition against the formation of trusts or pools in Kentucky, since the Act of 1906 merely provides a fine against trusts and pools in case they sell their products above or below their real value.</p> <p>11. Municipal Corporations — Franchise to be Sold After “Due Advertisement.” — Under section 164 of the Constitution, which provides that a municipality can only sell a franchise “after due advertisement,” the court cannot question the good faith of the council in fixing the length of the advertisement at not less than two weeks, and in two different newspapers.</p> <p>12. Municipal Corporations — Sale of Franchise — Highest and Best Bidder. — Under section 164 of the Constitution, which requires all franchises granted by a municipality to be sold publicly to the highest and best bidder, an ordinance which is so drawn as to confine the bidding to one person is invalid.</p> <p>13. Municipal Corporations — Sale of Franchise — Exclusive Bidder.— The mere fact, however, that one bidder has, by reason of his ownership of an existing franchise, or his capital, an advantage over other bidders, does not make him an exclusive bidder within the rule above laid down.</p> <p>14. Municipal Corporations — Franchise May be Confined to Territory Already Occupied. — The fact that an ordinance for the sale of a gas or electric franchise is drawn so as to cover only territory already occupied by the pipes or wires of an existing company, will not invalidate the ordinance.</p> <p>15. Municipal Corporations — May Waive Franchise Provision. — A provision in the franchise of an electric company prohibiting it from selling out to a competitor may be waived by an agreement between the owner of the franchise and the municipality that granted it.</p> <p>16. Municipal Corporations — Waiver of Franchise — Exclusive Bidder. —Where the franchise of an electric company prohibited it from selling out to a competitor, and the municipality offered to sell a natural gas franchise, and agreed to waive the prohibition in favor of the competitor of the electric company in case it should buy the natural gas franchise, the ordinance offering the natural gas franchise for sale did not violate the rule against exclusiveness in public bidding, since the waiver merely put the competitor upon an equal footing with other bidders.</p>

<p>1. Homicide— Evidence— Self-Defense — Uncommunicated Threats. —Evidence of uncommunicated threats by deceased against accused is admissible to show the state of mind of the deceased, at the time of homicide, and also to show who was the aggressor.</p> <p>2. Homicide — Appeal-—-Harmless Error. — -Where it appears that evidence of uncommunicated threats would throw light upon the question of the state of mind of the deceasd, or who was the aggressor, at the time of the homicide, it is error to exclude such evidence. But, where such evidence is cumulative and the record shows the accused to be the aggressor and that he has had a fair trial, no reversal should be ordered because of the exclusion of such evidence.</p>

<p>1. Criminal Law — Confession.—Where, in a prosecution for rape, the prosecuting witness said that the accused came into her room, and a witness testified that he heard the accused say that he went into the room for the purpose of getting his grandmother’s money, this was not a confession of guilt, and did not authorize an instruction under section 240 of the criminal code.</p> <p>2. Criminal Law — Unlawfully Detaining a Woman Against Her Will — Instruction.—Where the evidence for the Commonwealth showed that the accused entered the room of the prosecuting witness and laid his hands upon her and took hold of her against her will and consent, it was not improper, after tilling the jury that if the accused unlawfully and willfully took and detained the prosecuting witness against her will and consent with the . intent to have carnal knowledge 'of her, they should find him guilty to instruct the jury that if the accused laid his hands upon nr took hold of the prosecuting witness, against her will and consent, and with the intent to have carnal knowledge of her, this would he a taking and detaining in the meaning of the instruction, although it is not essential that this definition of unlawful detaining should be given.</p> <p>3. Criminal Law — Misconduct of Juror — How Made Available on Motion for New Trial. — When a new trial is asked on the ground that a juror has been guilty of misconduct, the party seeking a new trial on this ground should do so at the earliest moment after he has received information of the misconduct complained of, and should file his affidavit stating when he received this information. If the party seeking a new trial on this ground fails to do this, he will be deemed to have waived his right to a new ,. trial on this ground after there has been a verdict against him.</p> <p>%. Criminal Law — Weight of Evidence for the Jury. — In criminal cases we will not interfere with the finding of the jury on the ground that the verdict is not sustained by sufficient evidence, unless it affirmatively appears that the verdict is so contrary to the evidence as to make it appear that it was the result of passion or prejudice.</p> <p>5. Criminal Law — Form of Judgment Where Accused is Under Twenty-one. — Where a minor defendant is convicted of a felony, the court should in its judgment direct his confinement in the house of reform until he attains his majority, and if his term of punishment be not then ended, that he be transferred to the penitentiary.</p>

<p>1. Criminal Law — Successive Offenses — Penalty.—A statute imposing a severer punishment for second or subsequent offenses relates only to the penalty and is not a punishment for former offenses.</p> <p>2. Criminal Law — Elements of Crime — Penalty.—The punishment inflicted on a person for a crime or offense constitutes no element or ingredient of such crime or offense.</p> <p>3. Criminal Law — Former Jeopardy — Plea—Elements of. — For a plea of former jeopardy to avail, it must appear that in each prosecution, the accused, the sovereignty whose law has been violated, and the offenses not only as to the act but also as to the crime, are identical.</p> <p>4. Criminal Law — Former Jeopardy — Successive Offenses. — In the prosecution for an offense where the accused is also charged with being an habitual criminal, a plea of former jeopardy by the accused alleging that he had theretofore been indicted and tried for another and distinct offense coupled with the same charges of former convictions for felony, was properly held insufficient on demurrer, such plea relating solely to the penalty which constitutes no element of the offense with which he was charged.</p> <p>5. Crimnal Law — Judgment—Estoppel—Matters Concluded. — In the prosecution of an offense wherein the accused is charged with being an habitual criminal, the latter charge being descriptive merely of the class of offenders to which the accused belongs and incidental and collateral to the main question or merits of the case, the parties are not concluded by a judgment in a former prosecution for another and distinct offense upon the issue involving the identical charges of former convictions for felony.</p>

<p>1. Municipal Corporations — Maintenance of Water Works — When Customer Puts in Pipes for His Own Use — Action by for Loss— When Recovery May Be Had. — A city which maintains its own water works system must use ordinary care in maintaining its mains and pipes in proper condition, and a customer who uses the water, putting in the pipes on his own property, must use ordinary care to keep them in condition. If a loss occurs where both the parties have been negligent the plaintiff cannot recover if the loss would not have occurred but for his negligence, unless the city after notice of the trouble failed to use ordinary care to avert the loss.</p> <p>2. Instructions — When Complaint Cannot Be Made of. — No complaint of the instructions can be urged on appeal if they are not complained of in the grounds for new trial.</p>

<p>Deeds — Reformation—Mutual Mistake. — In an action to reform a deed on the ground of a mutual mistake of the parties, evidence examined and held sufficient to support the decree of reformation.</p>

<p>1. Attachment — Against Property of Non-resident Defendant. — An attachment under section 194 of the civil code cannot be obtained. against a npn-resident defendant upon the sole ground of non-' residency except on a claim arising on a contract, express or implied,-or a judgment or award. *</p> <p>2'.'" Attachment — Against Property of Non-resident Defendant. — An attachment may be obtained against the property of a non-re si- '• ■ dent upon the grounds specified in subsections 6, 7 and 8 of sec-. , pon 194, when he is about to remove his property, or a material. ■ part thereof, out of this State,.not leaving enough to satisfy the plaintiff’s claim, or has sold, conveyed or otherwise disposed of his property, or is about to sell, convey .or'otherwise dispose of. it, with the fraudulent intent to cheat his creditors. When an attachment is obtained on these grounds, it may be levied upon property of the defendant, whether he be a resident of the State • , or a permanent or a temporary non-resident.</p> <p>3. Attachment — Against Property of Non-resident. — An attachment under subsections 2, 3, 4 and 5 of section 194 of the civil code, cannot be obtained against a defendant who has never been a resident of this State. These subsections only authorize an attachment against a resident defendant who has been absent from the State four months, or has departed from the State with the intent to defraud his creditors, or has left to avoid the service of summons, or conceals himself so that a summons cannot be served upon him..</p> <p>4. Attachment — In Actions to Recover Damages for Tort. — In an action to recover damages for personal injury or other tort, the plaintiff may obtain an attachment against the property of the defendant if he can bring himself within the provisions of the code authorizing such an attachment.</p> <p>5. Process — Non-resident Doing Business in This State — Service Upon Agent or Manager. — Under subsection six of section fifty-one of the code, authorizing service of summons upon the manager or agent of a non-resident doing business in this State, it is doubtful if a non-resident, who only collects rents from property owned by him in this state and gives to the property such attention as an owner usually does, is doing business in this State within the meaning of this section.</p> <p>6. Process — Service as Authorized by Section 56 of the Civil Code— Effect of. — When a non-resident defendant has been summoned as provided in section 56 of the code, his property in this State, upon which the plaintiff has a contract, attachment, or other statutory lien, may be subjected to the payment of the plaintiff’s debt.</p>

<p>3. Deeds — Construction.—Where the caption of a deed is to “George Hatfield and Mary Blender Hatfield his wife during their natural life, thence descend to the heirs of their body of the second part,” and the granting clause is “unto the said party of the second part, their heirs and assigns forever,” and the habendum clause is “unto the said grantee their heirs and assigns forever,” the grantees, George and Mary Blender Hatfield, take only a life estate.</p> <p>2. Remainders — Contingent—Descent and Distribution. — Under a Conveyance “during their natural life thence to descend to the heirs of their body,” the children of the life tenant take only a contingent remainder which is not the subject of inheritance.</p>

<p>1. Vendor and Purchaser — Lien as Security for Purchase Price— Assignment of. — Where a vendor of real estate holds liens as security for the purchase price, upon two parcels of real estate —the lot sold by him and another his vendee had sold a third person, the lien retained upon which for unpaid purchase money, had been assigned to him — he had the right in one and the same action, to enforce both liens, and it was not error for the court in rendering judgment to direct that the lot sold by the vendor be first subjected to the payment of his debt.</p> <p>2. Married Women — Personal Judgment Against — When May Be Rendered — Rights of Married Women. — A personal judgment may properly be rendered against a married woman whether sued jointly with her husband or singly, if the obligation be one upon which she is individually liable otherwise than as a surety. Since the adoption of section 2128, Kentucky Statutes, a married woman has every right to acquire, hold and dispose of property, real or personal, and to contract, sue and be sued, possessed by the husband, “except that she may not make any executory contract to sell, or convey, or mortgage her real estate, unless her husband join in such contract;” nor can she become a surety.</p>

<p>1. Contracts — Ambiguity—Meaning That Should Be Given by Chancellor. — Where the parties to a contract, ambiguous in its terms, have put their own interpretation upon it by their action under it, a chancellor will not go into technical rules of construction in determining its meaning, but will give it that meaning which the parties themselves have put upon it.</p> <p>2. Specific Performance — Action for — Laches—Evidence.—In an action to enforce specific performance of a contract to convey land, evidence examined and held that appellee was not guilty of such laches as to deprive him of the right to such relief.</p>

<p>1. Wills — Contest—Burden of Proof. — The rule is well settled that after due execution of a will is proved by the propounders, the burden of showing that the instrument is invalid upon the ground that it was procured by the exercise of undue influence, is upon the contestants; and this must be shown by evidence at least tending to establish that undue influence was exercised upon the testator.</p> <p>2. Wills — Contest—Undue Influence. — In order to establish undue influence in the execution of a will, 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>3. Evidence — Will Contest — Testator’s Mental, Condition. — It is admissible to show tbe mental condition of tbe testator at tbe time bis will was made, and bis susceptibility to influence by wbicb ne was surrounded at tbe time; but it must be accompanied by some other evidence that tbe will was executed as tbe result of undue influence before tbe case will be permitted to go to tbe jury.</p> <p>4. Evidence in Will Contest — Wbat Is Evidence. — Tbe foregoing rule does not conflict with tbe scintilla rule, since that rule requires some evidence, even tbougb it be slight; and by evidence is meant something of substance and relevant consequence, and not vague, uncertain or irrelevant matter not carrying tbe quality of proof or having fitness to induce conviction.</p>

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

<p>1. Writs — Writs Court of Appeals May Issue. — Under section 110 of the Constitution, the Court of Appeals has power to issue such writs as may be necessary to prevent a miscarriage of justice in extraordinary cases where there is no other adequate remedy.</p> <p>2, Writs — Cases in Which Court of Appeals Will Issue Temporary Writ. — The court will issue a temporary writ in such cases where this is necessary in order that an appeal prayed and granted, may not be abortive, there being no other remedy.</p>

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

<p>1. Taxation — Residence of One for Taxation. — A man’s residence for taxation is where he really resides, and a verdict finding his residence where he spent most of his time will not he disturbed, although he declared that his residence was elsewhere.</p> <p>.2. Taxation — Listing Omitted Property — Appointment of Supervisors by Council — Vote of Council. — In listing omitted property for taxation under section 3542 Ky. Stats., the vote of the council need not be taken by yeas and nays and recorded in the journal.</p> <p>3. Estates — Demand Against Estate of Decedent — Verification.— Every demand against the estate of a decedent must be verified! by the affidavit of the claimant showing its justness and no judgment can be entered until such affidavit is filed. But this does, not affect the verdict and on a return of the case a judgment maybe entered upon the verdict after the proper affidavit is filed.</p>

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

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

<p>Contracts — Action for Value of Work Done Under Contract for Pur- ■ chasing Tobacco — Question of Fact — Evidence.—In an action to recover for services rendered under a contract for purchasing and putting up tobacco the questions were of fact; they were fairly submitted to the jury, and the finding in favor of the plaintiffs will not be disturbed.</p>

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

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

<p>1. Finding of Chancellor — Substantial Justice. — Where, upon a consideration of the whole case, it appears that the judgment of the chancellor did substantial justice between the parties, it will not be disturbed.</p> <p>2. Improvements — Dower.—Claim for Against Other Lands.— Where the widow of an intestate is allotted dower and also purchases the remainder of the intestate’s lands and in an action by her children, the deed to her is set aside on the ground that she was the administratrix of her husband, and the case is remanded-to settle the accounts between her and the children, she cannot assert a claim for improvements erected on the land assigned her as dower.</p> <p>3. Dower. — Where an i '.testate’s land are leased before his death, and the widow is thereafter assigned dower in certain portions of his lands, she is not entitled to dower in the royalties paid on coal not mined f- m the dower land.</p>

<p>1. Pleading — Lost Time — Defective Pleading — Introduction of Evidence 'Without Objection. — When lost time is pleaded, but in a defective manner, and there is no motion to make the petition more specific, and evidence on the question is heard without objection, the adverse party will not be heard, after the court has properly instructed the jury and a verdict has been returned, to complain of the admission of the evidence and the instruction based on it. The error of the court in so instructing the jury will be deemed to be waived.</p> <p>2. Evidence — Res Gestae.- — Evidence of a statement made by the injured party two or three minutes after he was injured is admissible as a part of the res gestae.</p> <p>3. Evidence — Improper Admission — Error.—In an action for damages for personal injuries, statements of plaintiff’s mother to the effect that when plaintiff reached her house after he was injured she regarded his condition as serious because he was complaining, groaning and “taking on,” even though inadmissible, is not of sufficient importance to justify a reversal.</p> <p>4. Pleading — Amended Answer — Refusal—Abuse of Discretion.— The refusal of the trial court to permit the filing of an amended answer offered during the progress -of the trial which in effect changes the defense and is not verified, and no reason is shown why it was not previously filed, is not an abuse of his discretion.</p> <p>5. Verdict — Excessive.—In an action for damages for personal injury, evidence examined, and a verdict of §1,000 held not excessive.</p>

<p>1. Trial — Jury Trial in Equitable Actions. — Section 12 of tbe Civil Code of Practice providing for a trial by jury of issues of fact in an equitable action has no application where the pleadings fail to make an issue.</p> <p>2. Pleading — Possession of Streets. — Where the petition of a municipality alleged ownership and exclusive control over a street which it had so held for the benefit of the public, generally, for fifty years, it stated a cause of action for injunctive process to require the defendant to remove its obstructions from the street.</p> <p>3. Trial — Sufficiency of Evidence. — Where the answer fails to make an issue, the alleged insufficiency of the evidence to sustain the judgment is not open to review.</p>

<p>1. Homicide — When No Bye Witness — Circumstantial Evidence-Instructions. — In a case of homicide to which there is no eye witness, and the Commonwealth must rely wholly upon circumstantial evidence in attempting to prove the guilt of the accused, the trial court should instruct the jury upon the law as to murder, voluntary manslaughter and self-defense as well as on the subject of reasonable doubt.</p> <p>2. Homicide — Circumstantial Evidence — Instructions.—The above rule does not apply, however, where the testimony of an eye witness to the homicide, supported by a strong chain of circumstantial evidence, shows the crime to have been committed premeditatedly and with malice aforethought, and the only defense interposed is the defendant's personal denial of guilt and an attempted alibi. As in such case the crime is murder or nothing, an instruction as to murder and reasonable doubt will give the jury all the law required for their guidance in arriving at a verdict.</p> <p>S. Homicide — Evidence—Exhibit of Shells Found at Place of Killing. — As a breech loader double barrel shot gun was used in killing the deceased and three or more shots were fired in committing the crime, it was competent to exhibit to the jury two empty gun shells, identified as having been found at the place of the killing, upon a showing that they were of the kind and quality required for use with such a gun as the defendant was shown to have had in his possession at the time of the killing.</p> <p>4. Homicide — Evidence—Exhibit of Pieces of Deceased’s Skull.-^ As according to uncontradicted evidence the shots by which deceased was killed tore away the top of his head and scattered parts of the brain and skull on the ground where his body lay, it was competent, after identifying them as the same found with the body, to exhibit the pieces of skull in evidence to the jury, without proving by a surgeon or anatomist that they were parts of the skull of a human being.</p>

<p>■ 1. Easements — Action to Be Adjudged Owner of Passway — Evidence — Instructions.—In an action seeking to be adjudged the owner of and entitled to tbe use of a passway and for damages for its obstruction, tbe jury under a peremptory instruction finding for defendants on tbe question of title, but finding that plaintiffs bad a right of passway, under submission on that question, upon appeal by tbe defendants as to plaintiffs right of easement, there being no cross appeal by defendants, tbe questions of title and damage are eliminated, and tbe evidence as to whether tbe use was exercised as a matter of right, or was merely permissive, being irreconcilable, and tbe instructions properly submitting tbe issue, tbe judgment must be affirmed.</p> <p>2. Easements — Title—Evidence—Introduction of Incompetent Evidence — Harmless Error. — In an action seeking to be adjudged tbe owner of and entitled to tbe use of a passway, tbe jury finding for defendants on tbe question of title under a peremptory instruction, tbe introduction of testimony by plaintiffs as to tbe giving of land for tbe passway by their ancestor and tbe remote vendor of defendants, and an instruction based upon it was harmless error. If tbe title to tbe land was in defendants as tbe court instructed tbe jury tbe jury could not have found that plaintiffs bad tbe right to use tbe passway under an agreement with their vendor.</p>

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

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

<p>1. Master and Servant — Evidence Upon Another Trial. — Upon another trial appellant may prove any fact connected with appellee’s use of the ladder that may tend to show his knowledge of its, defective condition before or when the injury was received.</p> <p>2. Master and Servant — Evidence—Instructions.—In addition to the instructions set out in the opinion, the jury should he directed to find for defendant unless they believe from the evidence the ladder broke or by reason of its defective condition came apart.</p>

<p>■ Appeal from Jefferson Circuit Court.</p>

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

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

<p>■1. Pleading — Petition—Amended Petition. — It was not error to permit an amended petition to be filed, the allegations of which might properly have been set up in the original petition, where a sufficient time elapsed after its filing to allow the opposite party to prepare and present his defense thereto.</p> <p>2. Railroads — Crossings—Obstruction of View — Negligence.—It is negligence on the part of a railroad company to permit its right of way near a crossing to become foul with vegetation and underbrush so as to obscure the view of travelers upon the highway.</p> <p>3. Railroads — Evidence—Competency.—Evidence as to the growth of vegetation and underbrush on a highway near a crossing is competent, in an action for injury at such crossing, as tending to show the dangerous nature of the crossing and the duty of the railroad company to employ signals, in addition to those required by statute, to warn the public of the approach of its trains.</p> <p>4. Railroads — Appeal—Review—Witnesses—Number and Credibility —Evidence.—While the numerical superiority of the witnesses is with appellant, their credibility is for the jury; although the weight of the evidence is with appellant, if its preponderance is not overwhelming in character, the verdict will not be disturbed.</p> <p>5. Appeal — Verdict.—In an action for death, where the evidence shows the earning capacity of decedent to be something like $1,000 a year and his expectancy to be practically twelve years, a verdict for little less than $6,000 will not be set aside as excessive.</p> <p>6. Appeal — Instructions—Harmless Error. — In an action for personal injury an instruction as to the care required of the deceased for his own safety should be in the same terms as that as to the care required of the wrongdoer, but where the language used is practically the same, a reversal will not be ordered.</p>

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

<p>1. Execution — Joint Judgment — Validity of Execution Against Survivor Alone — Section 405, Civil Code. — Where one of two joint judgment debtors is dead an execution against the survivor alone is valid as to him. •</p> <p>2. Execution — Validity of Execution in Excess of Judgment Debt. — ■ An execution which fails to allow a credit shown on the judgment is not void, but may in a proper proceeding be quashed to the extent of the excess only.</p> <p>3. Mortgages — Payment by Third Party Without Assignment — Lien. One who pays off a mortgage without taking an assignment acquires no lien.</p> <p>4. Limitation — Payment of Mortgage. — The claim of one discharging a mortgage without taking an assignment is barred by the five year statute of limitations.</p>

<p>1. Evidence — Action Against Railroad for Death. — Manner of Death May Be Established by Circumstances — Negligence.—Although no witness saw the deceased when he was killed, the fact that he was killed in a certain way may be established by circumstances as fully as by direct testimony.</p> <p>2. Instructions — Contributory Negligence. — It is unnecessary that in the first instruction anything should be said as to contributory negligence, when in another instruction the jury is told that although the defendant was negligent as set out in No. 1, there could be no recovery if the deceased was guilty of contributory negligence but for which he would not have been injured.</p> <p>3. Railroads — Electric Railroad — Injury to Conductor — When Not Required to Anticipate Presence of Pole. — A conductor upon an electric line is not required to anticipate that a pole has been set so close to the track as to endanger him in the ordinary discharge of his duties and he does not assume the risk unless he knows the dangerous proximity of the pole.</p>

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

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

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

<p>Action — Equitable Action to Subject Alleged Interest of Husband in Property of Wife to a Judgment Debt — Evidence—Finding of Chancellor. — In an action to subject to a judgment debt an alleged interest of the husband in certain property, the legal title to which, is in the wife, held, the finding of the chancellor dismissing the petition is sustained by the evidence, it not appearing that any of the earnings of the husband went toward the payment of the property, and there being nothing in the evidence from which it may be fairly inferred that since the purchase of the property, the earnings of the husband have even been sufficient to support the family.</p>

<p>1. Land — Action to Quiet Title — Deed—Lands Covered By — Evidence. —In an action by tbe father against his children to quiet title to a tract of land, evidence examined, and held that a deed, which the father made to his wife, covered the land in controversy.</p> <p>2. Judgment — Estoppel.—Where, in an action by a father against his. children to quiet his title to a particular tract of land, the children claim unde1- a deed from their father to their mother covering the land in controversy and also other lands, they may confine their answer and counterclaim to the land in controversy, and their failure to litigate with him the title to another tract of land, though embraced in their deed, does not preclude them from threafter asserting title thereto in another action by him wherein, for the first time, the title is called in question.</p>

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

<p>1. School Board — Contract With — Indebtedness—Constitutional Provision. — A contract by which a county board agreed to pay $3,000 annually for five years, creates an indebtedness of $15,000, but is not in violation of section 157 of the Constitution, unless this sum when added to the existing indebtedness, exceeds the income or revenue provided for the year.</p> <p>2. School Board — Contract With — Discretion—Review.—A county board may contract with the city board for the free tuition of the county pupils in the city high school, and in making such contracts the boards are given a discretion which will not be reviewed by the courts when fairly exercised.</p> <p>3. School Board — High School Not Necessarily Under County Board —Contracts.—It is not necessary under the statute that the high school shall be .under the control of the county board. How it shall be governed is a matter to be settled by contract between the two boards under the statute, and a contract made while the boards had a school in operation will be considered as referring to the kind of school the parties than had.</p>

<p>1. School and School Districts — Are State Institutions — Taxes for Benefit of Are State Taxes. — Every common school in the State, whether it be located in a populous city or in a sparsely settled rural district, is a State institution, and taxes levied for the benefit of schools are state taxes and not municipal, county or district taxes, although they may be levied and collected by municipal, county or district agencies.</p> <p>2. Schools and School Districts — Exemption From Municipal Taxation Does Not Exempt From School Tax.' — An ordinance enacted pursuant to constitutional and statutory provisions, authorizing municipalities to exempt from municpial taxation for five years manufacturing establishments, did not exempt them from the payment of school taxes levied by the municipal authorities for the benefit of the common school situated therein.</p> <p>3. Statutes — Contemporaneous Construction. — The mere failure of public officers charged with the public duty of enforcing statutory and constitutional provisions in respect to levy and collection of taxes, should noc be permitted to stand in the way of the correct administration of the law or be construed to estop more diligent and efficient public officers when they attempt to perform their duty by bringing into the revenue proper subjects of taxation that have theretofore been allowed to escape the payment of taxes.</p>

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

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

<p>1. Finding of Chancellor — Evidence.—In an action by a sub-contractor against a contractor to recover balance due on several contracts, evidence examined and held to sustain the finding of the chancellor as to certain items.</p> <p>2. Contracts — Building—Plans and Specifications — Decision of Architect and Construction Board — Effect.—Where the specifications for a public building provide that “if any discrepancy appears in the plans and specifications, the same must be referred to the architect for correction. All differences or discrepances as to sizes and quality of materials and workmanship, the decision of the architect and the Court House Construction Board is to be final and 'binding on the contractor,” the decision of the architect and the ■Court House Construction Board that certain marble and tile work furnished Iby a siib-contractor who agreed to do the work in accordance with the .plans and specifications, were included ■within the specifications, and should not be allowed as extras, is binding on both the contractor and the sub-contractor in the absence of a showing of fraud or mistake.</p>

<p>1. Railroads — Act Requiring Trains to Stop at Stations Where a Penitentiary is Located — When Such Act Invalid. — An act of the Legislature requiring all trains to stop at a station where there is a penitentiary of the State, is invalid as to interstate trains, when reasonable facilities are furnished at such station by other trains.</p> <p>2. Railroads — Act Regulating Service of. — An act requiring railroad companies to continue such service as they were then rendering at other points in the same county, regardless of the necessity for such service is invalid.</p>

<p>1. Land — Action for Trespass — Pleading.—When the petition avers that the plaintiff is the owner of the tract of land in controversy and the defendant by his answer denies this, and alleges that he is the owner of the land, the affirmative matter in the answer is only an affirmative traverse of the allegations of the petition, and no reply is necessary.</p> <p>2. Pleading — Denial That Plaintiff, is Corporation — Matter in Abatement. — A denial that the plaintiff is a corporation presents a matter in abatement which should .be disposed of in the circuit court, and if that court is not called to pass upon the matter it will not be considered on appeal.</p> <p>3. Land — Issue as to Title — When Transfer to Equity Improperly Made. — The issue as to the title to the land being an ordinary issue on which the other issues in the action depended, the circuit court improperly transferred the action to the equity docket, thus denying to the defendant a trial by jury.</p>

<p>1. Intoxicating Liquors — One Employed in Bottling House Not Engaged in Manufacture of Whiskey. — A person who is employed at a bottling house bottling whiskey in bond under the supervision of the United States government which was made four years before is not engaged in the manufacture of whiskey as a beverage.</p> <p>2. Insurance, Life — Evidence as to Health of Member of Benefit Society. — The evidence being conflicting as to whether the member was in good health when he was reinstated, the question is for the jury.</p> <p>3. Estoppel — Plea of. — Matter constituting an estoppel cannot be shown under a traverse.</p>

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

<p>1. Appeal — Law of the Case. — A holding by the court of Appeals that a verdict was flagrantly against the evidence, and that notwithstanding this fact there was sufficient evidence to take the - case to the jury, is the law of the case, so long as the evidence is the same; and where such condition existed on the second trial it was the duty of the trial court, upon motion seasonably made, to set aside the verdict.</p> <p>2 Trial — Improper Argument.- — Comments -by counsel in argument to the jury not supported by the record should be excluded from consideration by the jury, and in addition the jury should be told that the argument is improper. If the argument is prejudicial, a verdict obtained by counsel so offending should be set aside.</p>

<p>1, Appeal — ‘Statutes—iMoot Question — Review.—Tile Court of Appeals will not construe a statute in a moot case, nor until its construction is rendered necessary in order to determine the rights or interests of parties arising thereunder.</p> <p>2. Drainage — Appeal— Partial Transcript — ■ Presumptions.— The record of a proceeding in the county court, referred to and made a part of the record in an action to enjoin the collection of a drainage tax, not having been copied into transcript, upon appeal it will be presumed that such missing evidence supports the finding and judgment of the chancellor.</p>

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

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

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

<p>Vendor and Purchaser — Pendency of Action to Settle Estate — Purchase from Heir. — Section 2084, Ky. Stats. — Under section 2084, Ky. Stats., one who purchases from an heir of an intestate, pending an action to settle the intestate’s estate brought within six months from the time the estate descended, steps in the shoes of the heir, and acquires no interest in the real estate where the debts of the intestate and the costs of administration equal the-proceeds of its sale.</p>

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

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

<p>1. Master and Servant — Order of Superior — Effect of — Contributory Negligence. — Where a wrecking crew bound for a wreck two and one-half miles distant is composed of twenty-five or thirty men,. and it is necessary for some of them to find places on the engine elsewhere than in the cab, an order 'by the foreman in charge to “ride the engine”autborizes one of their number to make a choice between riding alone on the cross-beam of the pilot or riding with others on the coal on the tender, also a position of danger, and therefore to take a position on the cross-beam, unless such position was so obviously dangerous that an ordinarily prudent person would have refused to take it.</p> <p>2. Same — Dangerous Place — Order of Superior — Obvious Danger.— Where the engineer of an engine bound for a wreck has been informed of the wreck and knows where it is, and the wreck is only two and one-half miles distant and the track between the engine and the wreck is closed, and no other collision is to be anticipated, it cannot be said as a matter of law that the position of one who, in obedience to the order of the foreman in charge to “ride the engine,” securely fixes himself on the crossbeam of the pilot in preference to riding with other employees on the coal on the tender, is so obviously dangerous that a person of ordinary prudence would have refused to take it.</p>

<p>1. Deeds — Construction—Defeasible Fee. — Where the habendum clause in a deed is “to have and to hold the same unto the said Isaac W. Kelly and his heirs; but if the said Isaac W. Kelly die without issue then to the said Griffin Kelly and his heirs,” the grantee acquires a defeasible fee, which he may devise in the event that he dies leaving issue.</p> <p>2. Deeds — Restraint on Alienation. — The language of a deed imposing certain restrictions on alienation examined, and the restraint held to apply only during the lifetime of the grantee, or after his death in the event that he died without issue.</p> <p>3. Wills — Construction.—The testator directed that the remainder of his estate be equally divided among his children. He then added the following clause; “I also entail the land on and during their natural life with the right to will the same.” Held, that the latter provision being meaningless and unintelligible did not limit, diminish or qualify the estate devised, and that the children of the testator acquired a fee under the will.</p>

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

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

<p>1. Damages — Overflow Prom Obstruction of Creek — Negligence— Measure of Damages. — The claim of damages asserted by appellee for the overflow of ber two lots and the buildings thereon, having resulted from the obstruction of the waters of two creeks by abutments, piers and embankments erected by appellant in bridging the streams, the structures admittedly being of a permanent character, and not negligently constructed, it was properly held by the trial court that the case was one in which but a single ¡recovery could .be had; the measure of damages ¡being the difference in the vendible value of the real estate just ¡before and immediately after its overflow.</p> <p>2. Damages — Overflow Prom Obstruction of Creek — Right of Action for. — Although the bridge abutments, piers and embankments causing the overflow of appellee’s lots were erected in 1906, as it was not reasonably apparent to an ordinarily prudent person at the time of their completion, that they would so obstruct the waters of the two creeks as to cause them to overflow the lots, the right of action therefor did not then arise, but accrued after the overflow of the property in 1909, as it was not until the happening of that event that it became reasonably apparent to.a person of ordinary prudence that the structures would cause injury to the property.</p> <p>3. Damages — Injury to Real Estate. — A party is not required to sue for damages to his real estate resulting from a permanent structure, until it becomes reasonably apparent that he has suffered such damages.</p>

<p>1. Deeds — Designation of Street — Description—Easements.—Where a deed conveying a city lot designates the street upon which it fronts as one of the boundaries thereof, it will, in the absence of language showing a contrary intention, be construed as including the sidewalk in front of the lot and the street to the centre or middle thereof, subject to the free use of the sidewalk and street by the public. The fact that the description only brings the lot to the edge of the street can make no difference, for such description must be merely understood as specifying the ground the grantee may hold and use as exclusively his own, and as defining the line at which the public easement begins; the grantee owning subject to that easement, to the center of the street.</p> <p>2. Deeds — Boundaries— Easements— Title —Shade Trees. — As according to the above rule the deed carries the front boundary of the grantee’s lot to the center of the street and passes to him the title to the ground included in the sidewalk and street to the center of the street, subject to the public easement, it necessarily passes to him the title to the shade trees that may be standing on the sidewalk in front of the lot, subject to the public easement; and if the sidewalk contain a shade tree which stands in part in front of his lot and in part in front of the lot of an adjoining owner, each owner will have a property right in so much of such tree as stands on his side of the line dividing the lots.</p> <p>S. Trespass — Injury to Trees — -Action for Trespass. — If a tree standing upon the line between adjoining lots is injured or destroyed by one of the owtners, without the consent of the other, trespass will lie against the wrongdoer in favor of the joint owner without whose consent the tree was destroyed or injured.</p> <p>4. Trespass — Exemplary Damages. — In such case, if the trespass be wantonly or maliciously committed, exemplary damages, in addition to the actual loss inflicted, may he recovered of the wrong doer.</p>

<p>1. Partnersiiip — Creation—Evidence.—In an action for the settlement and accounting of a partnersiiip between tbe surviving partner and the estate of his deceased' partner evidence held to establish the existence of a partnership in each of two enterprises.</p> <p>2. Partnership — Interests—Evidence—Presumption.—In the absence of evidence showing the interest of partners in a joint enterprise, all partners will be' presumed to have equal interests.</p> <p>3. Partnership — Witnesses—Competency—Books of Accounts. — In an action for an accounting and settlement of a partnership, the surviving partner in possession of the firm’s books óf accounts’ is’ a competent witness to their authenticity. He má'y not, however, explain or testify as to entries made therein, unless the books were kept, and the entries ma$'e,\J)y him. ^</p> <p>4. Partnership — Witnesses^-Gompitency—Checks.—In ■ an action for an accounting and •settlement of a partnership, the surviving partner is incompetent,>to testify as to transactions evidenced by checks issued by the deceased partner on the firm’s 'bank account, as being an act done or¿omitted to be done by a deceased person.</p> <p>5. Partnership — Accounting—Evidence—Burden of Proof. — In an action for an accounting and settlement of a partnership, where a partner kept the books of account of the firm and the books contained no entry or explanation of checks issued by him upon the firm’s bank account, such checks will be presumed to be an appropriation of the .partnership assets for the individual benefit of such partner, and the burden is upon him or his representatives to show the application of such funds to joint benefit.</p> <p>6 Usury — -Right to Plead. — The right to plead usury is -personal, and the borrower may renounce the benefit of the usury statutes if he chooses and refuse to avail himself of their protection.</p> <p>7 Partnership- — Accounting-—Usury.—In an action for an accounting and settlement of a partnership, the surviving • partner should be credited with usury paid by him as a part of the partnership expense, if at the time he contracted to and did pay the usury, he, in so doing, acted in the utmost good faith toward the other partner. Such claims are not within the contemplation • of section 3870, Ky. -Stats., which requires claims against the estates of deceased persons to be purged of usury before suit.</p> <p>8. Partnership — Actions For Accounting — Equity—Judgment.—In an action for an accounting and settlement of partnership affairs, the correct practice is, where a dissolution of a partnership exists or ‘is decree^, to direct a sale of all the firm assets of whatever nature, unless a lawful agreement to distribute them in specie is assented to by the parties; and if, because of litigation with third parties over claims or rights growing out of the partnership, or for other valid reasons, disposition of every material issue involved must be deferred, such partial distribution of the cash on hand as would be justified by the record should be ordered; and thereafter, when the rights of all parties can be adjusted, final judgment should be entered.</p> <p>9. Appeal — Harmless Error. — A judgment against a deceased partner for contribution before all assets of the partnership were converted into -cash, is not prejudicial where it is reasonably certain from the record that such assets have little value and the case is retained on the docket for a further accounting.</p>

<p>1, Nuisance — 'Police Regulations to Protect Health of Public — Unsanitary Dwellings — Proceeding in Police Court to Remedy Nuisance — Notice.—Under statutory authority to make all police regulations to secure and protect the health and safety of the public, and to define and suppress nuisances, the city may by ordinance provide that houses intended for dwelling purposes which are so unsanitary or out of repair as to be unfit for habitation or unsafe for occupation or dangerous to the public or injurious to the health or morals of the community, shall not ’be rented or leased, and to provide that the owner may be fined in a proceeding in the police court if he fails to remedy the nuisance 'within twenty days after notice so to do.</p> <p>2. Nuisance — Ordinance Providing for Judicial Proceeding to Suppress. — A city ordinance providing for a judicial proceeding in a police court for the suppression of nuisances must be read in connection with the common-law rules «governing judicial proceedings and will be construed as requiring the nuisance to Jbe abated, not the structure to be removed, unless this is necessary to remedy the trouble.</p> <p>3. Nuisance — Judgment of Police «Court Abatement — Appeal.—From a judgment of the police court abating a nuisance, an appeal will lie to the circuit court although the fine is less than $25.</p> <p>4. 'Ordinances — No Provision in Act Governing Third Class Cities to Test Validity of — When Injunction to Restrain Enforcement Will Not Be Granted. — There being in the act governing cities of the third class no provision for testing the validity of an ordinance ■by suit in the circuit court, and no ground for equitable interference being shown by the petition, an injunction restraining the« enforcement of the city ordinance will not be granted.</p>

<p>1. Finding of Chancellor. — The chancellors’ finding of fact will not be disturbed on, doubtful evidence.</p> <p>2. Mortgages — Executed by Married Woman to 'Secure Debt of Husband. — A mortgage executed by a married woman to secure a debt of her husband, will not be adjudged unenforcible on the ground that it was procured by fraud, coercion or duress, when, the mortgage was executed intelligently three days after the transactions in which it was charged that the coercion was exercised, and no claim of coercion, was made until after the mortgage had passed into the hands of a purchaser with the acquiescence of the married woman in its validity.</p>

<p>1. .Railroads — Trespasser—Lookout Duty. — A railroad company owes no lookout duty to a trespasser upon its yards, its only duty to kirn being tbe duty of exercising ordinary care to protect him after bis presence on the track is actually discovered.</p> <p>2. Railroads — Licensee—Lookout Duty. — If, however, a .pedestrian is injured at a place where a large number of persons were accustomed to using the tracks and premises of the company, the person injured becomes a licensee, and the company owes him a lookout duty.</p> <p>3. Railroads — Use of Yards by the Public. — Where there was evidence to show that the place in the yards of a railroad company where the appellee was injured, was used by the people generally as a passway, the question of the negligence of the company in failing to exercise a proper lookout duty was for the jury.</p>

<p>1. Officers — .Contract With Under Authority of a Statute. — One ■who contracts with a public officer acting under the authority of a statute can contract only in the manner pointed out by the statute.</p> <p>2. Schools and School Districts — Employment of Teacher — When Contract 'Not Enforcible. — Where, a teacher acting under a verbal employment made pursuant to a resolution of a County Board of Education taught a school pursuant to sub-section 8 of section 4426 A of the Kentucky Statutes 'which empowered the Board of 'Education to contract for such service, in writing, the teacher had no enforceable contract and cannot recover for his services.</p>

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

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

<p>1. Corporations — Suit by Stockholder for Himself and 'Other Stockholders to Correct Management of — When May Be Prosecuted.— Ordinarily a stockholder may not sue upon behalf of himself and other stockholders to correct an evil in the management of a corporation until the managing board has been requested to take such action, and has refused, but where the managers or directors of the corporation bear such a relation to the matter as to show that they would not from the very nature of things listen to any request to institute an action to remedy it, a stockholder on behalf of himself and other stockholders, who are similarly situated, may proceed to prosecute the suit without making any such demand upon the managing authorities of the corporation.</p> <p>2. Corporations — Suit ,by Stockholder for Himself and Other Stockholders to Correct Management — When May be Permitted to iSue for Themselves and Others — Pleading.—Where a district board of a hurley tobacco society was not conducting the affairs of the corporation in such manner as to satisfy numerous of its stockholders in the matter of carrying out the teams of a pooling contract, in an action iby two of the stockholders of the society for relief from the alleged .mismanagement, the allegation being that there are something like 40,000 poolers, who in all respects are similarly situated as appellants, it was not improper for the plaintiffs to be permitted to sue not only for themselves, but for all the poolers.</p> <p>3. Corporations — Section 551, ¡Kentucky Statutes — Intent to Prevent. Incorporators from Getting Control Contrary to Wishes of Majority of Stockholders'. — In enacting section ,551 of the Kentucky Statutes, the Legislature had in view the idea of preventing the incorporators from getting initial control of corporations at the inception of their organization contrary to the wishes of a majority of the stockholders. Under the provisions of this section, it is not within the power of the incorporators to designate in the articles of incorporation an initial board of directors without any action upon the part of the stockholders.</p> <p>4. Corporations — Placing of Stockholder’s Shares in Voting Trust Without His Consent — Right of One to Control His Own Prop-. erty. — It is well grounded in our fundamental law that there is no limitation upon one’s right to control that which is his own, except such restrictions as might be imposed by law, and it would be such a limitation to hold that a stockholder’s shares may without his consent be placed in a voting trust either by a charter provision or otherwise, and he deprived completely of their com trol, even upon the ground that it was for his own as well as for the general good,</p> <p>5. Estoppel-rtRatification — Intent to Ratify Must Be Shown. — Before there can 'be an estoppel, or before one’s acts will be "deemed to have been a ratification, it is essential that he should be in full possession of all the facts about the transaction, and being in possession of such facts, his conduct with reference thereto must be such as to show an intention to ratify what was otherwise an unauthorized act upon his part, or that of his agent.</p>

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

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

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

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

<p>1. Local Option Election — County—Petition—Sufficiency.—When a local option • election is sought in an entire county, the petition should be signed by a number of voters equal to 25 per cent of the votes cast in each of the precincts at the last preceding general election.</p> <p>2. Local Option Election — Precinct—Transfer of Territory and Population — Petition—Requisite Number of Signers. — Where after the next preceding general election a new county is formed and a portion of the territory and population in a precinct in an old county is transferred to the new county, it is only necessary that the petition ashing for a local option election in the old county be signed by a number of voters in the precinct equal to 25 per cent of those who voted at the next preceding general election, and still remain in the precinct.</p> <p>3. Local Option Election — Petition—'Right of Petitioners to Withdraw Their Names. — Persons who sign a petition for a local option election may withdraw their names from the petition at any time before it is acted on by the county court.</p> <p>4. Local O'ption Election — Submission of Case — Subsequent Hearing of Evidence — Right of Petitioner to Withdraw. — Where on petition for the calling of a local option election the' case is submitted, the hearing of evidence thereafter on a disputed question of fact renders ineffective the order of submission, and does not deprive a petitioner of the right to withdraw his name from the petition before it is finally acted on.</p>

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

<p>1. Elections — Primary Elections — Not- an Election Within Meaning of Constitution — ¡Legislature may Enact Law Requiring Nominations to be Made by and Prescribe Manner and Conduct of. — As a primary election is not an election with the meaning of the Constitution, and there is no provision of that instrument which prohibits the Legislature from enacting a law requiring party nominations to be made by means of primary elections, it necessarily follows that it was competent for it to provide -by law that nominations of party candidates for office shall be made in no other way; to prescribe the time of holding and manner of conducting the primary elections by which such nominations are to be made; and also to impose such reasonable conditions and tests as to party membership or affliation, as shall entitle those seeking party nominations to get their names upon their party’s ballot as candidates.</p> <p>2. Elections — Primary Elections — Act Provided For — Constitutionality of. — The Act entitled “An Act to provide for the nomination of candidates by political patties at primary elections and for placing the names of candidates on the ballots to be voted for at the general election, and prescribing penalties for the violation thereof;” approved March 5, 1912, is not in any of the particulars indicated in these cases, unconstitutional.</p> <p>3. Elections — Primary Elections — Act Providing For — Constitutionality of. — The provision in section 6 of the act, which requires the petition of one seeking to have his name placed on his party’s ballot as a candidate at the primary election, for its nomination to an office, to state that he “affiliated with such party and supported its nominees at the last regular -election,” is not- an unreasonable requirement nor is it violative of sections 1, 6, or 147, of the Constitution; the first declaring freedom and equality, inherent and in alienable rights common to all men; the second that all elections shall be free and equal; and the.third, that all elecr tions shall be free and equal; and the third, that all elections by the people "shall be by secret. official ballot,, furnished by public authority to the voters at the polls, and marked by each voter at the polls and then and there deposited.”</p> <p>4. Elections — -Primary Elections — Supporting Party Nominees — Iiow Support May Be Rendered. — The words “supported its nominees” do not necessarily mean that the candidate should have voted for such nominees. Without voting at all, he may have given them active support by advocating their claims, assisting in getting out the vote and, &c., yet by accident or unavoidable casualty -have been prevented from attending or voting at the election. The requirement, even if compliance therewith be construed to amount to an admission from the candidate that he voted at the last regular election for the nominees of the party whose nomination he would seke in the primary, does not violate section 147, Constitution, which was designed to protect the secrecy of the ballot, and not the secrecy of party or political belief.</p> <p>5. Elections — Primary Elections — Object of Act Providing Eor. — The primary election statute was enacted to promote and maintain party organization and the integrity of party nominations; therefore, open declaration of party allegiance, both on the part of candidates who seek party nominations and voters who confer them, is absolutely essential to the proper working of any primary law.</p> <p>6. Elections — Primary Elections — Exclusion of Candidate Prom Ballot — Judgment—Court of Appeals Without Jurisdiction to Review. —As section 27 of the primary election act, restricts candidates whose names may have been wrongfully or erroneously excluded from the primary election, ballot, to the summary remedy prescribed therein for righting such wrong or error, and expressly disallows to the candidate or wrongdoer any appeal from the judgment or order the circuit or county judge may enter in the proceeding, the Court of Appeals is without jurisdiction to entertain an appeal from or to review such judgment or order.</p> <p>7. Statutes — -Construction of. — It is a well known rule of law that when a statute has created a right and provided a remedy for the enforcement of that right, the claimant of such right must pursue the remedy the statute prescribes to the exclusion of all other remedies.</p> <p>3. Elections — Primary Elections. — As section 27 only requires the candidate, whose name has been wrongfully or erroneously refused a place on a party ballot in the primary, to resort to the remedy and follow the procedure it prescribes, it does not prevent electors of the party, whose rights under the act may have been violated, from proceeding by mandamus, as allowed by section 474 Civil Code, to enforce such rights; nor does section 27 deprive them of the right of appeal.</p>

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

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

<p>1. Street Railroads — Personal Injury — Instructions.—-It is error to give an instruction so general and abstract in form as to mahe the jury tbe judges of both the law and facts.</p> <p>2. Trial — Setting Aside Verdict — New Trial — Discretion of Judge,— A judgment setting aside a verdict and awarding a new trial will not be reversed unless it appears that there was an abuse of discretion on the part of the trial court.</p>

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

<p>Attachment — Discharge—Evidence.—On a motion to discharge an attachment, evidence examined and held to show that the defendant so concealed himself that summons could not be served upon him, and that the court erred in discharging the attachment.</p>

<p>1. Public Roads — 'Contract to Keep in Repair — Order of Fiscal Court Directing County Attorney as Commissioner to Make Contract to Maintain Roads — Void Contract — Attempted Ratification of. — -The fiscal court has no power to delegate to an agent the authority to do anything which involves the exercise of a discretion which by law is confided to it, and where a fiscal court by an order directed a commissioner to make a contract for maintaining public roads, which order contemplated the exercise of his own judgment and discretion, it was void. Nor could the fiscal court delegate authority to the commissioner to approve the bond of the contractor, for the acceptance of the bond necessarily involves a discretion. The only way in which the fiscal court can act is through its orders duly recorded in the manner provided by law</p> <p>2. Fiscal Courts — Power to Validate and Ratify Void Contract. — The contract attempted to be made by a special commissioner with a contractor for the maintenance of the public roads of the county was one which was within the power of the fiscal court to make, and the fact that its agent did not take the required steps to make it a binding obligation, does not deprive the governing body of the county of the power to thereafter validate and ratify it so as to make it binding from the beginning, and the attempt upon the part of the fiscal court to carry out the contract attempted to be made by its commissioner will be treated as a ratification of his acts, and make the contract relate back to the original transaction.</p>

<p>Carriers — Shipment of Livestock — Injury to Stock — Action for — Measure of Damages. — Ordinarily the measure of damages where stock is injured in shipment is the difference between their market yalue just before and after the injury. This rule, however, contemplates that the injured stock shall be delivered to the plaintiff.</p>

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

<p>J. Jury — Grand and Petit Jurors — How Obtained — Action of Trial Court- Directing Sheriff -to Summon Bystanders — Exhaustion ■ of Regular Panel. — The action'of the trial qourt -in directing -the ■sheriff "to summon bystanders after the regular .panel had be^ff -exhausted is expressly-permitted by section 2247 of the Kentucky' ¡Statutes. That section seems to give the trial court the- diácr^ ' . tion either to draw, the names from the drum or wheel case, -or- ■ direct the summoning of bystanders. - • .</p> <p>2. Homicide — Oath to Sheriff and Deputies to Summon JurorsV ■ (Failure of Court .to .Administer .Oath. to.Pgputy. — As: to; the contention that one of the deputy sheriffs who assisted in summoning 'bystanders was not sworn as required by section 2262 of the Kentucky Statutes, while it appears that the deputy sheriff referred to was not sworn at the beginning of the term when the sheriff and his other deputies were sworn, and that he did summon several who were examined as to their qualifications for jurors, there is nothing in the record to show whether any one of those summoned by this deputy was accepted as a juror.</p> <p>3. Homicide — Evidence—Conflict of — Instructions.—While there is an irreconcilable conflict as to whether appellant or deceased first renewed the difficulty that resulted in the killing of deceased, there was such evidence as justified the court in submitting this question which it did in carefully worded and well drawn instructions, and on the whole case no prejudicial error was committed upon the trial.</p>

<p>1 Pensions — Grant of to Confederate Soldiers — Public -Sérvlces Rendered By. — A state may grant a pension to -Confederate soldiers for public services rendered by them to tbe state during - tbe Civil war when the state officially declared that it would remain neutral during the war, and the services of the soldiers were rendered in an effort to maintain the sovereignty and the rights of the state as declared in the state constitution.</p> <p>2. Pensions — 'Word “Appropriate” Not Necessary to Act. — It is not necessary that an act should use the word “appropriate” an'd when it fixes the amount to the paid out of the treasury to the claimant, and directs how it shall be paid, this is sufficient.</p> <p>3, Pensions — Allowing On Account of Public Services. — An act allowing a pension on account of public services is not invalid because such persons are put upon a different footing from other citizens.</p>

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

<p>Contracts — ‘Right of City to Tax Bridge Company — .Sale of Bridge Company Property — Franchise Tax. — Under a contract between a bridge company and a city by which it was agreed that the city reserved the right to tax the bridge and its appurtenances, the city has a vested right to collect a tax on the bridge and its appurtenances, but no vested right to collect a franchise tax from the bridge company; and the sale by the bridge company of its property to another is valid, although by means of the sale, the city is disabled from collecting a franchise tax from the bridge company as it had formerly done.</p>

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

<p>•1. Railroads — Action for Killing of .Live Stock at a Crossing — Pre-i sumption of Negligence. — In an action against a railroad com-! ©any for the killing of live stock at a grade crossing, the ‘burden being upon the company to overcome the presumption of negligence, and it having failed to show a compliance with section 786 of the Kentucky Statutes, that presumption was not. overcome.</p> <p>2. Railroads — Negligence Imputed by Section 809 Ky. Stats. — Signals. — On the question of whether a railroad has relieved itself of the negligence imputed to it by section 809, Ky. .Stats., where cattle are killed at a highway grade crossing, until it has shown that it gave the necessary signals as provided in section 786, there has been put one opinion by this court, and it seems to assume that where the company sought to overcome the prima facie case against it, that.it. must show that the signals for the crossing were given as required by the section. (See 22 R., 666).</p> <p>3. Railroads — .Signals at Crossings — Section 786 Ky. Stats. — There is nothing in the language of section 786 of the Kentucky Statutes from which it might be inferred that its requirements were intended only for the protection of human beings; it is sufficiently broad to hold the company negligent for a failure to observe its provisions whether men or stock may be killed or injured at a grade crossing if its provisions are violated.</p>

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

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

<p>■1, Indictment — Endorsement—Record.—An indictment which bears on its cover an endorsement that it has been received from the hands of the foreman of the grand jury in its presence in open court and filed in open court which endorsement is signed by the clerk, is a sufficient compliance with the code, without such en* dorsement being copied into the order book.</p> <p>8. Indictment — Conspiracy—Sufficiency and Certainty. — The purpose of an indictment is to advise the accused of the offense with which he stands charged and for which he is to be tried. An indictment for conspiracy, which charges the defendants with combining together for an unlawful purpose, and in furtherance of such unlawful purpose, they or some one of them or some unknown person acting with them committed the unlawful act, the others being then and there conveniently near aiding and abetting sufficiently charges all with being principals and the indictment is good.</p> <p>S, Criminal Law — Trial—-Formation of Jury — Appeal—Review.—Error of the court in the formation of a jury to try one charged with a crime or offense is not subject to review by the court of appeals.</p> <p>a. 'Homicide — Evidence—-Dying Declarations — Admissibility.—In a prosecution for homicide, statements of the injured party, made under a positive and absolute belief that his death is certain to ensue, and death results, are admissible as dying declarations, without regard to length of time intervening between the time of making the statements and his death.</p> <p>5. Homicide — Conspiracy—Trial—Instructions.—In a prosecution for homicide as a result of conspiracy, instructions are not erroneous, under which the jury, before it was authorized to find any one of the accused guilty, it was necessary to find from the evidence, beyond a reasonable doubt, first, that a conspiracy had been formed Iby the accused, to commit murder, second, that, in pursuance of said conspiracy, murder was committed by one or more of the accused, or by some other unknown person or persons, and third, that the others of accused were then and there present or conveniently near aiding them in so doing.</p> <p>6 Homicide — Conspiracy—Appeal—Review—Evidence—Weight áfid ¡Sufficiency. — In a prosecution for homicide as a result of conspiracy, evidence held to support verdict and judgment.</p>

<p>1. Criminal Law — Appeal—Indictment—'Hearing of Otter Than Legal Evidence by Grand Jury — Action of Trial Court in 'Refusing to Set Aside Indictment — Review—Section 281, Criminal Code. — Under section 281, Criminal Code, the action of the trial court in refusing to set aside an indictment on the ground that the grand .jury heard other than legal evidence is not subject to exception, and cannot be reviewed on appeal.</p> <p>2. Criminal Law — -Witness—Impeachment—Collateral Issue. — Where on .the trial of the defendant for knowingly, feloniously and corruptly swearing that two alleged participants in a murder were in the town of Jackson, 20 miles away from the scene of the murder, a witness for the Commonwealth testifies that the two men were present with him participating in the crime and also a : -third man, the whereabouts of the third man who participated in the crime was so much a part of the res gestae as to make it a direct and material issue instead of a collateral issue, and the de- . fendant is not concluded by the answer of the Commonwealth’s witness, but may show by other witnesses that the third party was as a matter of fact, not present at the scene of the crime, for the purpose of impeaching the Commonwealth’s witness. .</p> <p>3. Criminal Law — Witness—Interrogation by Court. — Although the trial court may interrogate a witness for the purpose of 'ascertaining the truth and bringing before the jury the real facts of the case, where there is nothing in the question or the manner of the interrogation from which the court’s opinion of the facts or the weight of the evidence can be gathered, yet it. is prejudicial error for the court to examine the witness in reference to a conversation he had with the court in such a manner as to mate the court itself an impeaching witness.</p> <p>4. Criminal Law — Evidence—Rebuttal.—The trial court has a rea- , sonable discretion in admitting testimony- in chief by rebuttal witnesses, and it is only in rare instances that a reversal will be decreed because of the court’s action in receiving evidence in re' buttal which should have .been adduced in chief.</p>

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

<p>Mandamus — Public Records — Inspection.—A citizen and taxpayer of a city of tbe first class, baying an interest in tbe records of tbe city engineer’s office, bas a right to inspect them under reasonable terms and conditions, and where be' is refused this right mandamus will lie, even though tbe inspection is desired for purposes of a pending suit against the city. '</p>

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

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

<p>1. Criminal Law — Trial—Evidence—Private Writings — Admissibility.- ( . —In a: prosecution for assault with intent to- bave carnal knowledge of a female, an anonymous letter containing an offer of a reward in money to any girl who would prefer charges against the accused which would result in his prosecution, conviction and confinement in the penitentiary, if knowledge of the contents thereof afe brought home to the prosecuting witness, is admissible as tending to show the motive of the prosecuting witness in investigating the prosecution. Unless such knowledge on the part of the prosecuting. witness is shown, such writing is incompetent for any purpose.</p> <p>2. 'Criminal Law — Trial—Continuance—Affidavit as to Statements of Absent Witnesses. — It is error for the trial court to refuse a continuance, where trial is ordered at the indicting term and accused has filed his affidavit showing due diligence in procuring the attendance of material witnesses and setting forth facts the absent witnesses would swear to, if present, unless, with the consent of the Commonwealth attorney, such statements of the absent witnesses should be admitted by the Commonwealth to ;be true and so read to the Jury.</p>

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

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

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

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

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

<p>1. Verdict — Wills.—The verdict of a jury sustaining a will will not be set aside as against the evidence, where it is not palpably contrary to the evidence.</p> <p>2. Instructions — Wills—Insane Delusion. — An instruction on insane delusion on the part of the testator about his children was properly refused where the evidence failed to show such delusion on his part.</p>

<p>1. Vendor and Purchaser — Which to Pay Taxes. — Section 4023 of the Kentucky Statutes, which provides that if property be sold before February 1st, of the year in which the taxes are due and payable, it shall be the duty of the purchaser, in the absence of any contract to the contrary, to pay the taxes upon the property bought) applies to judicial sales, and embraces all annual taxes, including State, county and municipal taxes.</p> <p>2. Statutes — Summary Remedy in Ascertainment of Taxes. — Section 989 of the Kentucky Statutes, which authorizes courts having a continuous session, in actions for the sale of real-property, to determine summarily the amount of taxes upon the property to be sold, and to provide for the same in the judgment, or by a credit for such taxes upon the purchase price, is a remedial statute only, and is not inconsistent with or repealed by section 4023 of the Kentucky Statutes, which confers upon the purchaser of real-property the substantive right of having the current taxes upon property bought by him credited upon his purchase price where the sale is made after February 1st, of any year.</p>

<p>1. Contracts — Action for Breach of — Measure of Damages. — In an action for a breach of contract by the company to pay 9 cents a ton for all coal in a certain entry, the plaintiff to keep the entry in good condition, a verdict for $1,518 cannot be sustained in the absence of proof showing definitely the amount of coal to be gotten out, and the reasonable cost to the plaintiff of doing the things he was to do under the contract; as the measure of damages in such an action is what the plaintiff would have received under the contract less the reasonable cost of doing the work.</p> <p>2. Contracts — Action for Breach of — Evidence.—Where the plaintiff sent an agent to another to obtain a contract from him for the plaintiff and his agent jointly, what took place between the agent and the person to whom he was sent, is competent evidence against the plaintiff, and the defendant may also show that this was .reported by the agent to the plaintiff and what he said when it was reported to him.</p> <p>3. Contracts — Action for Breach of. — Where the defendant refused to allow the plaintiff to complete his contract, the defendant may not show what it paid others to carry out the contract without first showing that the prices so paid were reasonable.</p> <p>4. Instructions — New Trial — Appeal.—Instructions not complained of in the grounds for new trial cannot be considered on appeal, although excepted to at the time they were given.</p>

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

<p>1. Carriers — Passengers.—One riding on a train with the knowledge and consent of the conductor is a passenger.</p> <p>2. Evidence — Witness.—Where the conductor of a train denies that plaintiff’s decedent was riding on a train with his knowledge and consent, evidence of a statement by him showing the contrary is admissible for the purpose of impeaching him.</p> <p>3. Evidence — Record—Oral Evidence. — Where defendant is notified to produce a record and fails to do so, oral evidence of its contents is admissible if the record itself is admissible.</p> <p>4. Evidence — Record.—A written report by an engineer handling an engine just before an accident, to the effect that the engine was defective, and filed in the round house is competent on the question of notice.</p> <p>5. Instructions. — An instruction which fails to define an emergency in which plaintiff may act as one created by the negligence of the defendant is not prejudicial where no other emergency existed.</p> <p>6. Verdict — Excessive.—Pacts considered, and verdict of $12,500 held not excessive.</p>

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

<p>Mines and Mining. — It is tbe duty of mine owners to exercise ordinary care to keep tbe entries used by tbe miners in reasonably safe condition, and if a miner, while in tbe line of bis employment, is injured by tbe failure of tbe owner to perform this duty, be may recover damages.</p>

<p>1. Laud — Condemnation Proceeding — County Court Without Jurisdiction to Try Title. — In a proceeding in the county court to condemn land for a railroad right of way, answer having been filed, by each claimant asserting sole ownership in the land, and denying title in the other, and a jury had assessed the damages for the right of way, the county court undertook to determine the rights of the adverse claimants of the land to the fund and to dispose of it as those rights might appear to that court, when appellant filed in the circuit court a petition for a writ prohibiting the county court from trying the issue as to title, and asking a transfer of the action to the circuit court. Held, the county court being without jurisdiction to try the question of title, the writ should have been granted, and it was error to sustain a demurrer to the petition.</p> <p>2. Land — County Court Without Jurisdiction to Try Title — Transfer to Circuit Court. — Except in the matter of land partition and condemnation the statutes confer no jurisdiction upon the county court that relates directly to land, and in partition and condemnation it is clear that the county cóurt jurisdiction does not go to the title of the land involved. Upon motion of either party the county court should have transferred to the circuit court this cause when the damages were assessed in order that the circuit court might try the question of title and dispose of the fund accordingly.</p>

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

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

<p>Criminal Law — Intoxicating Liquors — Local Option Law — Violation— Evidence — Sufficiency.—On a prosecution for the offense of having in one’s possession spirituous, vinous or malt liquors for the purpose of sale in local option territory, evidence examined and held sufficient to sustain a conviction.</p>

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

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

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

<p>1. Evidence — False Swearing — Pendency of Prosecution — Record— Parol Proof. — On a trial for false swearing, where there is a record of the proceeding at which it is alleged the false testimony was given, parol evidence of the pendency of that proceeding is inadmissible in the absence of the loss of such record.</p> <p>2. False Swearing — Acquittal of Denfendant — Effect on Prosecution Against Witness Who Gave False Testimony. — The acquittal of the defendant on a trial at which it is alleged a witness other than the defendant testified falsely does not prevent the conviction of such witness for false swearing.</p> <p>3. Instructions — False Swearing. — An instruction telling the jury that before they can find the defendant guilty of the crime of false swearing they must not only believe from the evidence beyond a reasonable doubt that he has been proven guilty, but that each substantive fact necessary to make out the crime, as set forth in the preceding instruction, must be supported by evidence of two witnesses or one witness and strong corroborative circumstances, is erroneous. The court should have told the jury that they must acquit the defendant unless it be proven that he swore falsely by two witnesses, or by one witness and strong corroborative circumstances.</p> <p>4. False Swearing — Materiality—Relevancy of Alleged False Testimony — Question for Court. — On a trial for false swearing it is not necessary that the alleged false testimony be material; it is only necessary that it be relevant, and its relevancy is a question for the court and not for the jury.</p>

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

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

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

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

<p>1. Appeal — Claims Against County — Single Appeal. — Where a fiscal court allowed forty-two claims against a county by a “blanket” order, and the county appealed to the circuit court by filing a single copy of the order and issuing a summons against the individual claimants, the circuit court properly treated it as a single appeal, and dismissed the appeal against all persons who had claims for sums not exceeding $25.00, and also properly required the county to elect which one of those claims which were for more than $25.00, it would prosecute.</p> <p>2. Appeal. — An appeal cannot be prosecuted from a judgment which is not specified in the statement of appeal required by section 739 of the Code of Practice.</p> <p>3. Appeal — When Parties Not Before Court On. — Parties not named as appellees in the statement of appeal required by section 739 of the Civil Code of Practice, are not before the court upon the appeal.</p> <p>4. County Health Officer — Board of Health. — The County Health Officer is the executive officer, of the County Board of Health; he acts for it to execute its lawful demands in such matters; his duty is that of oversight and direction more than personal execution.</p> <p>5. County Health Officer — Board of Health. — Under section 2055 of the Kentucky Statutes, it is the duty of the County Health Officer to see that the rules and regulations provided for by law, and the rules and regulations of the State Board of Health, are enforced.</p> <p>6. County Board of Health — Discretion of. — The power to determine what physicians, nurses, guards and attendants are necessary to carry out the rules and regulations provided by law and by the State Board of Health, is left to the discretion of the County Board of Health; the power to fix the compensation of the person so employed is vested in the fiscal court of the county.</p>

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

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

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

<p>1. Master and Servant — Injury to Servant by Explosion. — In an action by a servant against tbe master for injuries received by tbe explosion of a metal cap while at work receiving and disposing of refuse and debris from a tunnel, the master knowing tbe refuse was iikely to bave in it one or more caps or exploders, a thing inherently dangerous, it was his duty to warn tbe servant of tbe danger, and .this is true even if tbe master was not responsible for the presence of tbe caps, and by tbe. exercise of utmost care could not bave kept them out. Appellee testified that be did. not.know of the presence of tbe cap, or of the probability that it would be baiiled out with tbe muck,' and" that be bad never been Warned of Such danger!,'He bad only been at work a short time,' his story is not unreasonable and the jury had a right to believe him. While there was a conflict upon this point, there is no ground for appellant’s request for a peremptory instruction.</p> <p>2. Master and Servant — Injury to Servant by Explosion — Instructions — Negligence.—It is sufficient if the employers knew, or by the exercise of ordinary care could have known, of the danger of caps or exploders getting into the refuse, and negligently failed to keep them out, or if the servant was ignorant of the danger, and by the exercise of ordinary care could not have discovered it, and appellants failed to warn him. The contention that the court in its instructions failed to require the jury, as a prerequisite for finding for plaintiff, to believe he knew, or could by the exercise otf ordinary care have known of the presence of the explosion is not the question here.</p> <p>3. Master and Servant — Negligence—Instructions.—The question of appellants’ negligence in permitting the caps to be in the muck, and of appellee’s knowledge of the danger were fairly submitted to the jury.</p>

<p>1. Commission Form of Government Act — Continuation of Employment of Persons Holding Under Former Government — Resolution, —Construction of Act. — Following the election of November, 1912, when the City of Lexington voted to adopt the Commission form of Government, on January 6, 1913, at their first meeting, the' Board of Commissioners resolved to continue in employment all. persons who held under the former government and at the same, salary. To an action hy certain taxpayers of the city attacking the validity of the resolution and seeking to restrain the payment of such salaries, the lower court sustained a demurrer and refused to issue any restraining order. Held, it musi be ©resumed that all officers and servants of the city under the former administration", were duly appointed, and were acting and receiving compensation by virtue of ordinances regularly enacted by rightful authority. There is nothing inconsistent TOith the Act of 1910, if they shall continue to serve the city until their term of service expires, unless the Act ipso facto dis..harges them, and there is nothing in the act that can be so construed unless it is section 4, and it clearly. refers to elective officers, and affects only the office; Its purpose was to change the tenure of the office, and not the term of the officer.</p> <p>2. Commission Form of Government Act — Resolution by Commissioners Providing for Continuance of Employees. — The resolution was. merely a declaration or affirmation of the effect of the old ordinances still in force, and was unnecessary, for under the old ordinances and resolutions these former servants continue in the employ of the city, and at tne same salary, as agents, not officers, until the laws and ordinances affecting their employment or appointment theretofore in force are altered or repealed by the Commissioners.</p>

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

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

<p>1. Divorce — Alimony.—While without power to reverse a judgment granting a divorce, this court may review the facts of the case for the purpose of passing on the propriety of the chancellor’s action in refusing alimony.</p> <p>2. Divorce — Alimony.—In an action for divorce and alimony, evidence examined, and held that the chancellor erred in refusing to award alimony to the wife.</p> <p>3. Divorce — Alimony—Expectancy of Husband May Be Considered.— Where the husband is the only child and prospective heir of his ■widowed mother, his expectancy may be taken into consideration in fixing the alimony to which the wife is entitled.</p> <p>4. Divorce — Alimony.—In an action by a wife for divorce and alimony, evidence examined, and alimony fixed at $500.</p>

<p>Action — Account—Interest.—In an action on an account where a balance is found due to the plaintiff, interest should be allowed on i such, balance from the bringing of the action. (For original opin. ’ ion see 154 Ky., 328).</p>

<p>Verdict — Signature of Juror by Mark. — A verdict returned by nine jurors is valid, although one of the jurors made his signature by making his mark, and his signature was not witnessed. (Fbr original opinion see 154 Ky., 649).</p>

<p>Action — Action for Mistake — Limitation.—An action for relief for mistake cannot be maintained after ten years from the time the transaction occurred and this rule applies in an action by a sheriff against his deputy to correct a mistake in a settlement made more than ten years before the action was brought; (For original opinion see 154 Ky., 324). ' -</p>

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

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

<p>1. Repeal of Common Law by Statute. — The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject; the common law is not repealed, however, if there is no repugnancy between it and the statute, and it does not appear that the legislature -intended to cover the whole subject.</p> <p>2. Criminal Law — Indictment.—It not infrequently occurs that the same act may constitute, in whole or in part, two or more offenses; and in that event it is the accusative part of the indictment that determines the offense charged.</p> <p>3. Nuisance — May Be Prosecuted. Under Common Law or Under iStatute. — Any use of -property which was at common law a nuisance, does not cease to be so because the same act is'made an offense by statute and a different punishment provided, and the party creating the nuisance may be -prosecuted under either the common law or the statutory remedy.</p> <p>4. 'Common Law — Indictment—'Multifariousness.—An indictment accusing the defendant of making and maintaining a common public nuisance by permitting refuse from a distillery to flow into a stream thereby polluting it, is not multifarious, and is valid under the common law, notwithstanding section 1253 of the Kentucky Statutes prescribes a statutory penalty for a similar-offense.</p>

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

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

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

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

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

<p>1. Larceny — Taking and Carrying Away Different Articles at Different Times — -Instructions.—While two larcenies cannot be added together so as to sustain the charge of grand larceny, the evidence connects appellant with taking two automobile tires worth $40.00 apiece, and whether he made one or two trips for them he was guilty in either event. For these reasons the objection to the instruction is not well taken. The instruction directing his conviction if the jury believed he “unlawfully and feloniously, took, stole and carried away the various articles enumerated in the indictment of the aggregate value of $105.00, or of any of said property of the value of $20.00 or more.”</p> <p>2. New Trial — Newly Discovered Evidence — Affidavit Unsupported. —A motion for a new trial on the ground of newly discovered evidence should be supported by the affidavit of the witnesses that they will so state, or by some other evidence than the affidavit of the defendant.</p>

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

<p>Appeal — What Not Final Order. — An order overruling a demurrer to an answer, but not disposing of the action, is not final,</p>

<p>1. Elections — Primary—Contest—Time of Instituting. — Under the primary election law, the five days allowed for instituting the contest, must be counted from the issuing of the certificate, including the day on which the certificate is issued.</p> <p>2. Elections — Notice of Contest — Service of. — The notice of contest must not only be put in the hands of the sheriff within five days, but it must be served on the defendant within that time, unless he absents himself or otherwise prevents the service. If the notice is not served in time, the proceeding cannot be maintained.</p> <p>3. Trial — Special Judge — -Presumption that Governor Acted Properly in Appointing. — It will be presumed that the Governor acted properly in sending a special judge to try a case nothing else appear, ing. Ordinarily the clerk may notify the Governor when notified by one of the parties that the parties cannot agree on an attorney to preside.</p> <p>4. Elections — Primary—Judgment of Court of Appeals is Pinal — Correction of. — In primary election contests the judgment of the Court of Appeals is final when entered and the result will he certified directly to the proper officers. But the court will correct any error thereafter on reasonable application.</p>

<p>1. Bawdy House — Evidence of Reputation of House — Nuisance.—In a prosecution against a defendant for keeping a bawdy house, evidence of the general reputation of the house, and that it had possessed for several years the reputation of being a disorderly house, is admissible, but it will not alone be sufficient to warrant a conviction, since there must be some evidence aside from reputation which corroborates the proof of reputation; an'd this may be either direct or circumstantial.</p> <p>2. Nuisance — Abatement of — Location of. — It is not necessary to specify the location of a nuisance further than to show that it is within the jurisdiction of the court, unless it is desired to obtain an order of abatement, or the locality is an essential ingredient of the offense.</p> <p>3. Nuisance — Abatement of — When Location Must Be 'Set Out. — • Where the object desired by an indictment is an abatement of the nuisance, the location of the nuisance must be set out in the same manner as the place of a forcible entry, where restitution is to be awarded.</p> <p>4. Bawdy House — Indictment for Keeping — Location Indefinite.— Where an indictment charged the defendants with keeping a bawdy house “on Mulberry Street in Owensboro, Kentucky,” the location of the alleged bawdy house was not sufficiently definite to authorize the court to enter a judgment abating the nuisance.</p>

<p>1. Action — Common Law — Submission to Court Without Intervention of Jury — Finding—Effect of. — Where a common law action is sub- ' mitted without the intervention of a jury, the judgment of the trial court is entitled to the same weight as the verdict of a well-instructed jury, and cannot be reversed unless flagrantly against the evidence.</p> <p>2. Ejectment — Finding of Court — Evidence—Sufficiency.—In an action of ejectment, evidence examined and held to sustain finding in favor of plaintiff.</p> <p>3. Easement — Appurtenant—Steamboat Landing — Conveyance of— Right to Use and Occupy Other Lands of Grantor. — Where a grantor conveys a particular steamboat landing and certain described land to which it is appurtenant, the destruction of that land by erosion gives to the grantee no right to use and occupy other lands of the grantor for the purpose of landing (boats.</p>

<p>3. Judgment — Action to Enforce Collection of — Defense.—In an action to enforce collection of a judgment, an answer, by defendant denying that such a judgment as is sought to be enforced exists, is a good defense.</p> <p>2. Judgment — Pleading—Defense.—An allegation that the judgment .sought to be enforced was entered without service of process upon defendant or any officer or agent of defendant, presents a good defense.</p> <p>3. Pleading — Demurrer.—Upon demurrer the truth of the allegations of the pleading in question are admitted by the demurrer for the purpose of testing its sufficiency.</p>

<p>1. Streets — Right of Abutting Owner to Obstruct. — An abutting owner may in tbe conduct of his business or in the improvement of his property, temporarily obstruct a part of the adjacent street, if the obstruction does not unreasonably interfere with the right of the public to the use of the street.</p> <p>2. Streets — Obstruction by Abutter. — The obstruction of a street by an abutting owner must be temporary in its nature and such as is reasonably necessary for tbe transaction of business or the enjoyment of the premises, and the obstruction must also be reasonable with reference to the rights of the public. If an obstruction continues for such a period as to amount to an unreasonable interference with the. public travel, it is unlawful and a nuisance. The question whether an obstruction is allowable or a nuisance is generally a question of fact to be determined by the facts of each particular case.</p> <p>3. Streets — Obstruction—Facts of This Case. — S. & T. owned large factory buildings on each side of a narrow street on which a railroad track was laid so that cars loaded with freight for use in the factory might ibe hauled on the street to a point opposite the door of the factory and there unloaded. For the .purpose of unloading cars so placed, S. & T. put temporary supports in the street, and on these supports laid planks reaching from the factory door to the car door. These planks so placed completely obstructed the street, and it would be so obstructed from periods of two to eight hours. Held that such an obstruction was unlawful and a nuisance, although the hands unloading the car were instructed to remove. the planks and afford free passageway to travelers when so requested.</p> <p>4. Judgment — Conclusiveness of. — A judgment of the lower • court which has been affirmed by this court is conclusively binding upon the parties.</p> <p>5. Judgment — Construction of. — Judgments should be reasonably construed and enforced so as -to carry out t'he spirit as well as the letter of the judgment.</p>

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