Volume 156 — Kentucky Reports

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

<p>1. Contracts — Mutuality of Obligation Necessary to Constitute a Binding Contract. — Unless a contract is binding on both parties it is not binding on either of them.</p> <p>2. Contracts — Particular Contract Lacking in Mutuality, and Therefore Not Enforceable by Either Party. — Where A, a distiller, and B, a whiskey dealer, entered into a contract by which A agreed to furnish to B a specified quantity of whiskey each year for five years but the contract provided that “if for any unforeseen reason the party of the second part, B, find that they cannot use the full amount of the above named goods, the party of the first part, A, agrees to release them from the contract for the amount ’ desired by party of the second part,” this contract did not obligate B to-take any of the whiskey, and therefore he could not enforce specific performance of the contract.</p> <p>3. Contracts — Mutuality.—When Circumstances of Transaction 'Make Contract Lacking in Mutuality Binding. — Where A and B enter into a contract by which A agrees to furnish to B, for example, all the coal that B will require in the operation of an established factory, the contract is not lacking in mutuality, as B may require A to furnish him all the coal he needs to operate his factory and A may insist that B shall take from him all the coal he needs for this purpose.</p> <p>4. Contracts — Option Contracts — Validity of. — Although an option contract may be based on a nominal and insufficient consideration, if it is accepted during the life of the option, it will constitute an enforceable contract entitling the optionee to specific performance, but before its acceptance the optionor may withdraw it without incurring any liability.</p> <p>5'. Contracts — Option Contracts — Must Be Accepted in Terms of Contract. — An option, to be binding upon both parties, must .be accepted during its life in the terms of the option. Neither of the parties can modify the conditions of the option to suit his own interest or convenience. He must either take it as it stands or let it alone.</p> <p>6. Contracts — Option Contract — Validity of. — Where a contract provided that A should furnish to B a certain amount of whiskey each year for five years, but B was not obligated to take any of it, if B desired to impart validity to the option, he should have accepted it unconditionally before it was withdrawn by A, by taking each year the full amount of whiskey specified in the contract. B could not take a part only of the whiskey for the first two years and then insist that A deliver to him subsequently the full amount specified in the contract. A rule like this would give the optionee an unfair advantage by allowing him to accept so much of the contract as suited his interest, with the right to reject so much of it as he saw proper to reject.</p> <p>7. Words — “Unforeseen Reason.” — The words “unforeseen reason” in a contract, permitting one of the parties “for any unforeseen reason” to excuse himself from performance, left it with him to assign any reason he might see proper for declining to perform, the contract. It was not necessary that the reason should be a good reason or a reasonable reason.</p>

<p>Schools and School Districts — Establishment of Graded Common Schools — Action to Enjoin Levy and Collection of Tax — Invalid Election to Establish Graded School. — Where the petition for an election required to be filed under section 4464, Ky. Stats., upon the question of creating a graded common school district was only lodged with the county clerk, and endorsed by him, it was therefore not filed as required by the statute, and not approved by the trustees, the election establishing the graded school was invalid and the judgment dismissing appellant’s petition in which it was sought to enjoin the collection of the tax was error.</p>

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

<p>1. Carriers — Duty to Furnish Suitable and Sanitary Cars for Shipment of Live Stock. — A railroad company is under a duty not-only to furnish reasonably safe and suitable cars for the carriage of live stock, but it must furnish cars that are in a reasonably clean and sanitary condition for such purpose, and if it fails to perform this duty it will be liable in damages to the owner of the stock who has suffered loss thereby, if the loss is attributable to the unfit or unsanitary condition of the cars.</p> <p>2. Carriers — Not Liable for Breach of Duty Unless Loss Can be Traced to Its Failure.' — The mere fact that a carrier may be negligent in putting and carrying cattle in a filthy and unsanitary car does not authorize a recovery against it unless there is evidence tending to show that the condition of the car produced the disease that injured or killed 'the stock. In every case where it is sought to recover damages for breach of duty, there must be evidence connecting the loss for which damages are sought with, the breach of duty or else there can be no recovery.</p>

<p>Railroads — Deeds—Right of Way — Contracts—Issuance of Pass — Performance Rendered Impossible by Subseguent Enactment of Law. —Where a conveyance of land for right of way purposes is made to a railroad company in consideration of an annual interstate pass for and during the life of the grantor, further issual of which pass hs become unlawful by reason of the Act of Congress known • as the Hepburn Bill as construed by the Supreme Court of the United States in the Motley case, damages will be allowed for the right of way so taken and retained.</p>

<p>Railroads — Interurban Railroads — Passengers—Negligence — Personal Injuries. — A passenger on a summer car which has a foot board running along the side of it, who unnecessarily leaves his seat and gets upon the foot board for the purpose of changing his seat as the car is passing over a bridge, the girders of which are near the track, cannot recover for his injuries from being struck by the girder, he being familiar with the condition of things at the bridge.</p>

<p>1. Electricity — Personal Injuries — Negligence—Evidence Admissible to Show Cause of Trouble. — Proof that on the next morning the servants of an electric light company on an inspection of the premises, discovered the cause of the trouble and remedied it by tying up a sagging wire, is admissible against it not to show negligence, but to show the cause of the trouble.</p> <p>2. Electricity — Electric Light Company Not An Insurer of its Wires —Highest Care Required. — An electric light company is not an insurer of its wires but is liable to a customer if it fails to use the highest care in maintaining its wires in proper condition.</p> <p>■3: Electricity — Personal Injuries — Instructions.—The proof 'being undisputed as to how the injury occurred, and the cause of the injury, and it being evident on these facts that the company had not used proper care, an instruction telling the jury to find for the plaintiff unless the defendant had used proper care, is not prejudicial to the defendant.</p>

<p>1. Municipal Corporations. — A city council can only speak by its ; records.</p> <p>2. Municipal Corporations — Licenses—Ordinances—Yea and Nay Vote — Parol Evidence Incompetent to Show Facts of. — Where a city charter provided that no ordinance for the establishment of any license should 'be valid unless the yeas and nays thereon were recorded in the journal of the proceedings of the council, and the journal failed to show that the yeas and nays were taken, or that the ordinance was passed, parol evidence was inadmissible to show those facts.</p> <p>3. Action — Action to Recover Money Paid by Mistake. — Where money has been paid through a clear and palpable mistake of law or fact, essentially affecting the rights of the parties, which, in law, honor or conscience, was not due and payable, and which ought not to be retained by the parties to whom it was paid, it may be recovered.</p> <p>4. Taxes — Action to Recover Illegal Taxes Voluntarily Paid — Rule as to. — Illegal taxes paid voluntarily cannot be recovered; but if they are paid under compulsion, which exists whenever they are collectible by summary process of fine and imprisonment, they come within the general rule, and may be recovered.</p> <p>5. Taxes — Illegal Taxes Voluntarily Paid — Coercion or Duress.— The coercion or. duress which will render a payment of taxes involuntary, must, in general, consist of some actual or threatened exercise of power possessed, or believed to be possessed. by the party exacting or receiving the payment, over the persm or property of another, from which the latter has no other means or reasonable means of immediate relief, except by making payment.</p> <p>6. Licenses — Paid Under Invalid Ordinance — Recovery.—A license fee to sell soft drinks, paid under an invalid city ordinance, may be recovered.</p>

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

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

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch No. 2).</p>

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

<p>1. Highways — Proceeding to Widen — Description of Land Proposed , to be Taken — Sufficiency.—In a proceeding to widen a road, report of viewers and accompanying map examined and held sufficient to show not only the quantity hut the precise land proposed to he taken.</p> <p>2. Highways — Widening—Change.—Where it is sought to widen a road at one end 4 feet, 10 inches, and gradually increase it in width from that point until the additional width becomes 14 feet, 6 inches, the fact that it is necessary to elevate the old road bed for some distance as the road approaches the latter end does not constitute such a substantial change in the road bed as to require the notice provided by Section 4290, Kentucky Statutes, in cases of application to open, change or discontinue roads under Section 4289.</p> <p>3. Highways — Proceeding to Widen — Instructions — Error. — One whose land is taken to widen a public road cannot complain of an instruction requiring the jury to believe more than is necessary for them to believe in order to find a verdict widening the road.</p>

<p>1. Mechanics’ Liens — Amendment of 1910 — Notice.—Neither the presentation of an account to the owner nor an order on him to pay one of the contractors a certain sum of money is a sufficient notice in writing, under the mechanics’ lien law as amended by the Act of 1910, to enable a material-man to acquire a lien.</p> <p>2. Mechanics’ Liens — Payment by Owner to Material-man — Effect of. —The payment by the owner to the materialman for materials purchased by a general contractor is not an acknowledgment of personal liability by the owner.</p> <p>S. Costs — Tender Prior to Bringing Suit — Effect of. — Where there is neither offer of compromise under Sections 634 and 635 of the Civil Code, nor an offer to confess judgment under section 640, nor a payment into court of the indebtedness admitted to be due, a mere tender made prior to the bringing of the action is not sufficient to relieve the defendant of the payment of costs, even though plaintiff recovers no more than the amount tendered.</p>

<p>1. Contracts — Written Agreement — Prior Parol Negotiations Merged in — Parol Evidence. — When the parties have deliberately put their agreement in writing, all prior parol negotiations are merged in the writing and in the absence of fraud or mistake parol proof is not admissible to vary the writing. The rule applies although tile -writing is only signed by one of the parties but is accepted and acted upon by the other.</p> <p>2. Contracts — Assignment—Parol Evidence. — An endorsement made by the plaintiff on the margin of the order book assigning certain parts of a judgment and retaining in full effect the remainder, cannot be varied by parol evidence in the absence of fraud or mistake on the ground that the real contract between the parties was not set out in the endorsement.</p>

<p>Negligence — Petition May State Several Grounds of. — In actions to recover damages for negligence, the pleader may state as many grounds of negligence as the facts seem to justify, and a recovery may be had upon any of the grounds charged, if it be sufficient to justify a recovery and the evidence sustains it.</p>

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

<p>Sureties — Limitation—Instruction.—In an action against an administrator upon a note, the defense being that it was signed as surety and the statute of limitation relied on, an instruction authoriz- ' ing the jury to find for the plaintiff if they believed from the evidence that excluding the time decedent was absent from the State, and the six months following the appointment of the administrator, the time between the maturity of the note and the filing of the action did not amount to as much as seven years, aptly stated the law, and the judgment in favor of the plaintiff will not be disturbed.</p>

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

<p>1. Malicious Prosecution — Evidence.—In an action for malicious prosecution, defendant will not be permitted to prove the conviction of plaintiff’s companion on the occasion when the alleged acts of disorderly conduct occurred, for which defendant caused warrants to issue against both plaintiff and his said companion.</p> <p>2. Malicious Prosecution — Pleading.—A demurrer to the second paragraph of answer in an action for malicious prosecution, pleading that the clerk of the Louisville Police Court, to whom defendant made his complaint only 'had authority to issue a summons; that he without authority issued a warrant, thereby causing the arrest and damage to plaintiff, was properly sustained, upon the ground that such clerk has authority to issue warrants of arrest.</p> <p>3. Malicious Prosecution — Probable Cause — Malice—Instructions.—It is error to instruct the jury in an action for malicious prosecution that there must be the expectation on the part of the prosecutor, of causing the conviction of the party arrested cn the charge preferred; it is only necessary that he entertain a reasonable, honest and strong suspicion that the person arrested is guilty of the offense for which he was so arrested and prosecuted. Malice in malicious prosecution is the intentional doing of a wrongful act to the injury of another, with an evil or unlawful purpose. The court should tell the jury what facts constitute probable cause, and let the jury determine whether said facts are proven.</p> <p>4. Malicious Prosecution — Damages.—Damages to reputation, in an action for malicious prosecution, need not be specially plead nor proved.</p>

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

<p>1. Trial — Trial by Court — Finding—Effect as Verdict. — Where the law and facts are submitted to the trial court without the intervention of a jury, his finding is equivalent to the verdict of a • properly instructed jury, and any defect in the petition is cured thereby.</p> <p>2. Carriers — Carriage of Goods — Connecting Carriers — Loss or Injury to Goods — Liability.—Where two or more carriers are involved in a shipment of goods, and the shipper or consignee shows that a certain quantity of goods was delivered to the initial carrier and a less quantity received from the delivering carrier, he makes out a prima facie case against each carrier, and it then becomes incumbent upon each to show that the loss or damage did not occur on its line, or if occurring on its line was due to some cause for which it was not responsible in law.</p> <p>3. Carriers — Connecting Carriers — Loss of Goods — Liability—Evidence. — In an action by a consignee against two connecting car: riers to recover for shortage of weight in various shipments of coal, evidence examined and held to sustain a verdict in favor of plaintiff.</p>

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

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

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

<p>1. Principal and Surety — Notice.—The notice required by section 4668 of tbe Kentucky Statutes by a surety requiring tbe creditor of his principal to sue to the next term of the court under penalty of releasing the surety, must he clear and explicit, and not ambigous; it must be in effect a demand to sue, and more than instructions to dun the principal; and the burden is on the surety to show its nature and terms.</p> <p>2. Principal and Surety — Notice.—A mere suggestion by the surety to collect the note, or to put it in the hands of an attorney for collection, is not a sufficient notice to release the surety.</p> <p>3. Notice — Presumption of Receipt of Letter. — Where it is shown that a letter was properly addressed and deposited in the mail, postage prepaid, there is a rebuttable presumption of fact that the letter was received as soon as it would be transmitted in the usual course of the mails.</p> <p>4. Notice — Presumption of Delivery of Letter. — Where, however, a notice is required by statute, the mailing of a letter giving the notice creates no legal presumption of its delivery, but that fact is proper testimony to be considered, together with other evidence, in determining when it was received; and the jury should not be instructed that a presumption arose from the mailing of the letter, which will prevail unless overthrown by other satisfactory evidence.</p> <p>5. Sureties — Notice—‘Service—Presumtpion.— Under section 4668 of the Kentucky Statutes the surety is required to show that the notice was served in person; and whenever the surety sends the notice by mail, and the creditor denies that he received it, the presumption ceases and the surety stands with the burden of = showing by other testimony that the letter was received.</p>

<p>1. Negligence — Torts—Proximate Cause — Contribution.—One whose negligent act, concurring with a separate and distinct negligent act of another, was the proxima+e cause of an injury, who has been held liable in damages, can not recover by way of contribution from the other tort feasor.</p> <p>2. ■ Torts — Wrong Doer — Contribution.—Where two tortious acts, separate and distinct from each, were committed by two independent agencies, but concurred in bringing about the injury, which would not have occurred but for the commission of either of them, one of the wrong-doers who has been mulcted in damages cannot recover from the other in contribution.</p> <p>3. Torts — -Wrong-doer—Indemnity.—This is not among the exceptional cases where one not an active participant in a wrongful act, has been held liable because of his relation to the wrong-doer or because of his connection in some remote way with the act done, .and is therefore permitted to be indemnified against the active wrong-doer. Here both parties actively contributed by their wrongful acts to the injury, which would not have been inflicted if either of their separate negligent acts had not been committed.</p> <p>4. Torts — Wrong-doer.—It is not the rights of the two wrong-doers themselves that 'the courts consider in such cases. They base their action in refusing relief upon the ground of the public interest and considerations of public policy.</p> <p>5. Torts — Wrong-doer—When Aid of Courts Cannot be Invoked.— The machinery of the courts will not be put in motion to relieve one wrong-doer from the consequences of his wrongful act against another wrong-doer, equally guilty. The aid ’ of the courts can not be invoked for redress when it is necessary for the plaintiff to state in his complaint that he and another by reason of a breach of public duty upon the part of each of them have caused death to another citizen, even though their several breaches were separate and distinct acts, and neither participated in the act of the other.</p>

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

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

<p>1. Bills and Notes — Assignment—Consideration.—Tbe maker of á note who induces another to purchase it from the payee, assuring him that it is valid and "will be paid, cannot set up the illegality of the consideration against the assignee, who had no notice thereof.</p> <p>2. Bills and Notes — Assignment—Estoppel.—But no estoppel arises from the payment by the assignee of a debt of the assignor for which he was already bound, although made upon the assurances of the maker of the note, that the note was valid and would be paid.</p> <p>3. Bills and Notes — Infirmity of Note — Pleading.—A pleading which avers that the defendant did not have notice of the infirmity of the note until the-day of December, 1911, and that he acquired it on. the-day of-, 1911, does not show that he ■acquired it before he had notice of the illegality of the ■consideration, as the pleading must he taken most strongly against the pleader.</p>

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

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

<p>1. Railroads — Crossings—Gates Down at Crossings — Ordinary Care. —If, when tbe gates are down at a railroad crossing, a person goes under the gates and gets on the railroad track, he takes the risk and cannot recover unless those in charge of the train by the exercise of ordinary care, could have avoided the injury to him, after the discovery of his peril, or after they could, by ordinary care, have discovered it.</p> <p>2. Railroads — Negligence.—Where the plaintiff is guilty of negligence in going upon the railroad track, lie cannot recover, although those in charge of the train were also guilty of negligence in running the train too fast, if but for his own negligence the injury would not have happened.</p> <p>3. Railroads — Duty to Stop or Check Train. — Those in charge of a train are under no duty to stop or check it, on seeing a person near the track, unless they have reason to know that he is not aware of the approach of the train, and will probably be endangered by it.</p>

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

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

<p>1. Curtesy — Homestead—Right of Husband to — Abandonment.—The statute prior to 1893 gave the right of curtesy to the husband “where there is issue of the marriage born alive”, and there being no issue, and the homestead right being merely one of occupancy so long as the husband lived, the conveyance by the husband operated as an abandonment of any homestead right he may have had, and the appellant took no title by his deed.</p> <p>2. Deeds — Title.—Subsequent to tbis conveyance tbe three sisters of tbe deceased wife and tbeir beirs and descendants joined in a conveyance of the property in controversy to S. Appellee’s title comes from S. through mesne conveyances, and the conveyance of the three sisters and their heirs and descendants vested in appellee the title to the property.</p>

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

<p>Divorce — Action. For by Non-resident Wife — Jurisdiction.—Where a cause of divorce occurs in this state and thereafter the wife removes from the state, she may bring an action against her husband in the county in which he resides in this state, although she may not have been an actual resident of the state for a year next before the institution of her action.</p>

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

<p>1. Assault and Battery — Arrest—Action Against Officer. — In an' action against an officer for unnecessary force used-in effecting an arrest, no recovery can be had except for such mental and physical suffering as resulted from the use of such force as was in excess of what was necessary to effect the arrest, to retain the arrested person in custody, and to repel assault by him.</p> <p>2. Trial — Verdict—Ambiguous Verdict. — Where plaintiff brought a suit against a policeman and The United States Fidelity & Guaranty Company, surety on his bond, for assault and battery committed by the use of unnecessary force in making an arrest, and the jury were instructed that compensatory damages might be found against defendant officer and his surety, and punitive damages against the officer alone, and the jury brought in a verdict which reads as follows: “We the jury find for plaintiff $750 punitive damages and against defendant $250,” the verdict is too uncertain to support a judgment.</p> <p>3. Trial — Verdict—Affidavit of Juror Cannot Be Used to Explain Verdict. — The ex parte affidavit of a juror cannot be used to explain an ambiguous verdict.’ If the meaning of the verdict cannot be made certain from the record, it will not support a judgment.</p> <p>4. Assault and Battery — Damages—Sureties—Liability of. — In an action against an officer for damages resulting from the use of unnecessary force in effecting an arrest, the jury should merely fix the amount of the compensatory damages; and the judgment will fix the liability of the surety on the officer’s bond; that liability is fixed by law, and cannot be limited or extended by the verdict of a jury.</p>

<p>1. Bills and Notes. — Under sub-section 5'9 of tbe new Negotiable Instruments Acts, Section 3720-b, Kentucky Statutes, when tbe maker of a note produces proof of fraud inducing its execution, tbe burden shifts to tbe bolder to show that be is a bolder in due course. . .</p> <p>2. Appearance. — In an action governed by Section 79, Civil Code if defendant objects to tbe jurisdiction of tbe court, he may thereafter defend on the merits without entering his appearance.</p>

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

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

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

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

<p>1. Courts — Stipulations—Order—Nunc Pro Tunc Entry. — Where, in an action in equity, the parties agreed that such of the testimony as had not previously been taken by depositions might be orally heard by the court on the trial, as in an ordinary action where the right of jury is waived, and such agreement was approved by the court and oral evidence heard as therein stipulated, but, by inadvertence or mistake, the agreement was not reduced to writing or entered of record, the- court’s knowledge and approval of the agreement authorizes a nunc pro tunc entry of the agreement and orders in accordance therewith.</p> <p>2 Stipulations — Trial—Appeal-—-Estoppel.—Where, in an action in equity, an agreement with respect to the taking of oral testimony had been entered into and acted upon, a party thereto is estopped from objecting in the trial court to the filing of the official stenographer’s transcript of such oral testimony as stipulated in the agreement, and also from complaining in the Court of Appeals of the presence in the record of such transcript of the oral testimony.</p> <p>3. Attorney and Client — Authority—Stipulations.—An attorney has general power to make such agreements or stipulations, with re- ■ spect to the conduct of litigation entrusted to him, as he may deem beneficial to his client; and such agreements, whether made in or out of court, when entered into without fraud or collusion, and acted upon, bind his client.</p> <p>4. Principal and Agent — Compensation of Agent — Amount.—Where a principal entrusted to his agent the control and management, in accordance with his discretion and as if it were his own, an estate consisting mainly of notes, bank stock, certificates of time deposits, and other choses in action, aggregating in value about $42,000, without any agreement as to amount of compensation or method of determining it, and the agent, for three and a half years, managed the estate with such skill and fidelity as not to lose a dollar of the estate but increased its value 16 2-3 per cent, above the amounts paid to the principal out of the income for his support, an allowance of $1,400, is held to be reasonable compensation for such services.</p> <p>5. ■ Principal and Agent — Compensation.—Where a principal entrusts the management of his estate to his agent, with the understanding thg-t the agent will be paid for his services, but without any agieement or stipulation as to the amount of compensation, or the method of determining it, the law allows the agent a reasonable compensation for his services, in determining which,there is no fixed rule, but the matter must be left largely to the discretion and judgment of the courts called upon to fix such compensation; in doing which, they must take into consideration the character of the property, the circumstances attending its management, and the fidelity and success of the agent himself.</p> <p>6. Insane Persons — Committee—Compensation.—A committee of the estate of a person of unsound mind, under the provisions of Section 3883, Ky. Stats., cannot be legally allowed more than five per cent, on the amounts received and distributed by him, but he may, in the discretion of the court, upon proof heard in open court and upon notice to the parties in interest, be allowed additional compensation for extraordinary services rendered and expenses incurred in attending to and winding up such estate, not exceeding in amount a fair compensation for the time occupied, and expenses incurred, in protecting, attending to, collecting and settling up the estate. Where the estate amounted to about $42,000, and only small amounts of money were collected and distributed by the committee, but he was put to extraordinary trouble and expense in caring for the health and comfort of his ward, during his insanity and illness, an allowance of $700.00, included in which was an item of $250.00 paid as premium on his bond as committee, is held to be excessive and ordered to be reduced to $550.00.</p>

<p>1. Railroads — Personal Injuries — Federal Employers’ Liability Act— Negligence — Damages.—Tbe Act of Congress, known as tbe Federal Employers’ Liability Act, gives an action for damages caused by tbe negligence of any of the employees of a railroad company; and as tbe Act does not define tbe term “negligence”, and in no way limits tbe application of tbe common law rule upon that subject, it is tbe common law of tbe State where the accident occurred to which we must look in determining whether tbe acts complained of amount to negligence.</p> <p>2. .Railroads — Fellow Servant Rule — Abolition of by Federal Employers’ Liability Act — Personal Injuries — Negligence.—Although tbe Federal Employers’ Liability Act abolishes the fellow servant rule, and does not permit contributory negligence upon the part of the plaintiff to bar a recovery, nevertheless the common law rule still requires that in order for the plaintiff to recover in a suit for damages for personal injuries, he must show that the injuries resulted in whole, or in part, from the negligence of the employees of the carrier, or by reason of some defect or insufficiency due to the carrier’s negligence.</p> <p>3. ¡Negligence — Definition of Negligence. — Negligence is a failure to discharge a duty; it may be the omission of a duty, or doing that which is contrary to a duty; and where there is no duty, there can be no negligence.</p> <p>4. Railroads — Risk.—Persons take the risk, who go in between cars . standing upon a track, without the knowledge of the men handling the cars, and when they have no reason to anticipate their ^ presence.</p> <p>6. Appeal — Opinion on First Appeal Law of Case. — The opinion of the Court of Appeals upon a first appeal, is the law of the case thereafter; and, where the facts shown in the second trial are substantially the same as on the first trial, the ruling upon the second appeal will be the same as on the first appeal.</p>

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

<p>1. Railroads — Public Crossing — Failure to Keep in Reasonably Safe Condition — Personal Injury — Evidence.—In an action for damages for personal injury alleged to have resulted from the failure of the railroad company to keep a public crossing in a reasonably safe condition for ordinary travel, evidence examined and held sufficient to sustain a finding in favor of plaintiff.</p> <p>2. Railroads — Aggravation of Damages by Plaintiff — Pleading—Instructions. — Where the pleadings do not present the issue of plaintiff’s aggravation of damages by her own negligence, it is not error to refuse an offered instruction covering this phase of the case.</p>

<p>Land — Parol Sale of — Refusal of Vendor to Convey — Lien.—When land is sold by parol, the vendee in possession upon the refusal of the vendor to convey, should be adjudged a lien on the land for his purchase money with interest from the refusal of the vendor to convey, and the enhancement of the land by reason of his improvements subject to a credit for the rents after the vendor refused to convey.</p>

<p>Usury — Plea of Personal. — Tfie plea of usury is a personal one, and is allowed for tbe benefit of the borrower; he may renounce the benefit if he chooses or he may avail himself of its protction. Appellants are each entitled, therefore, to sue for themselves, but not for the benefit of numerous unknown parties who, it is alleged, have paid usury to appellees in large, but indefinite sums.</p>

<p>Appeal — Parties.—Appellant was a party to an action in the lower court. The lien which she asserted was denied. She complains that she was not made a party to an appeal in an action by creditors to subject land to their debt. Held, as she was a party to the action in the lower court she is bound by the proceedings there. She presents no 'other records or proceedings and no reason is perceived for altering or modifying the former opinion. (See 147 Ky„ 437).</p>

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

<p>Husband and Wife — Right of Husband to Wife’s Property. — A verbal arrangement between husband and wife by which the wife agreed that the husband might have an equal interest with her in the fand or its proceeds, situated in Tennessee, is not binding on the wife.</p>

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

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

<p>1. Appeal — Record—Instructions.—Errors in instructions are not subject to review where the instructions are not made a part of the record by order of court or bill of exceptions.</p> <p>2. Appeal — Errors Reviewable — Rejection of Evidence. — Alleged errors in the rejection of competent evidence are not subject to review unless embraced in the grounds for a new trial.</p> <p>3. Evidence — Identity of Record — Proof of — Agreement of Parties. —Where, by agreement of parties entered of record, a continuance is granted on condition that certain records of a corporation may be introduced in evidence without further proof' of identity, defendant cannot complain that such records were so introduced and admitted.</p> <p>4. Corporations — Stockholders—Fraudulent Sale of Stock — Liability of Directors.- — In an action by a stockholder against the president and other directors of a corporation to recover the price which she paid for her stock on the ground that she was induced to purchase the stock by the false representations of an agent made to her with the knowledge and by the authority of the president and directors, evidence examined and held to sustain a verdict in favor of plaintiff.</p>

<p>1. Adverse Possession — Extent oí Possession. — Where one owns two or more tracts of disconnected land, the actual entry and adverse possession by another upon one of the tracts, although the entry be made under a deed that includes all of them in its boundaries, will not extend his actual possession to any of the others. If the intruder desires to hold all of them by adverse possession, he must do such act as to each as will constitute adverse possession as to each particular tract, as each disconnected tract is to be treated as a separate disconnected boundary.</p> <p>2. Adverse Possession — Instructions—Sufficiency of Evidence. — In an action for the possession of an unenclosed tract of woodland, it was error for the court to submit to the jury the question of the adverse possession of such tract, where there was no evidence whatever that the defendant, or any of his vendors, had ever had actual possession of the tract.</p> <p>3. Boundaries — Question for the Jury. — In an action for the possession of land, there being a contrariety of evidence as to the true location of the lines of the patent, alleged to include in its boundary the land in controversy, it was error for the court to locate the lines of the patent, but the determination of their location should, under proper instructions, have been submitted to the jury.</p>

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

<p>Interest — Loans in Excess" of Legal Hate — Disorderly House. — Under our statute providing that six per cent shall be the legal rate of interest and that all contracts for loans at a greater rate shall be void to the extent of the excess over that rate, but provides no penalty, one who maintains a place where loans in excess of the legal rate are habitually made is not guilty of the offense of keeping a disorderly house.</p>

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

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

<p>1. Passways — Permissive Use — Easement.—Where the use of a pass-way has -been merely permissive on the part of the owner of the land, no length of time will deprive him of the right to reclaim it; but, where the use has been asserted as a matter of right by the public, and this use has continued uninterruptedly for as much as fifteen years, this uninterrupted use constitutes an easement that the users cannot be deprived of.</p> <p>2. Passways — Permissive Use. — Where the use of a passway has continued for- a long period of time, .the burden is on the owner of the land to show that it was merely permissive, and not by right.</p> <p>3. Highways — Obstruction of — Injunction.—One who uses a public highway cannot enjoin its obstruction unless he is able to show a special injury to himself; but where land which lies adjacent to a passway which is necessary for the owner’s use, such use of the passway is in the nature of an appurtenant to the land, and gives the owner the right to enjoin the obstruction of the pass-way.</p> <p>4. Passways. — Where the users of a passway adjoining a woodland went through the woods for a short distance, selecting the way they thought most direct and convenient, leaving the general course of the passway unchanged, the right of passway remained unchanged, as originally acquired.</p> <p>5. Passways — Obstruction of — Right of Chancellor to Define.— Where a passway ran, in part, through a woodland, and the users deflected from the passway for a short distance to suit their convenience, the chancellor had the right, in an action to enjoin the obstruction of the original passway, to define the passway by metes and bounds. Such action on the part of the chancellor is not the establishment of a public road; it is only defining, with certainty, the limits of the existing passway.</p> <p>6. Finding of Chancellor.- — Where the evidence is contradictory and the mind is left in doubt, a finding of facts by the chancellor will not be disturbed.</p>

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

<p>1. Elections — Certification of Vote. — When the election officers on the night of the election made and signed four certificates of the ■vote, this is a substantial compliance with the statute although they failed to fill out and sign the certificate in the stub book.</p> <p>2. Elections — Failure to Certify Vote of Precinct — Election Commissioners May Require. — When the county board of election commissioners in canvassing the vote, reach a precinct which is not properly certified, they should give notice of the fact to the officers and parties in interest; and allow a reasonable time for the defect to be supplied; and they do not perform their duty when they canvass the other returns omitting this precinct.</p> <p>3. ’ Elections — Election Commissioners — Duty of. — When they have not performed their duty, they may be required to meet and perform it, although they have already issued certificates based upon a partial performance of their duty. . u</p>

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

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

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

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

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

<p>Wills — Delusions in Kespect to Members of Testator’s Family. — A delusion exhibited by a testator’s aversion toward a daughter is not sufficient to invalidate his will, where it was not a spontaneous production of his mind, but had some basis in fact, however slight, the basis, or however imperfect the process of his reasoning or however illogical or unjust his conclusion that she was so greatly at fault as his conduct toward, her would indicate his belief to have been.</p>

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

<p>1. Evidence, Presumption — Corporate Officers and Stockholders— Knowledge of Articles. — Articles of incorporation constitute the contract between the stockholders and officers of a corporation, and both stockholder and officer are chargeable with knowledge of the provisions of the articles.</p> <p>2. Corporations — Excess of Debt Limit — Contracts.—A contract made with a corporation by one of its officers and directors, . whereby it undertakes to impose on the corporation an obligation in excess -of the debt limit fixed in its articles of incorporation, is ultra vires and void.</p> <p>3. Contracts — Construction—Surplus Earnings of Corporation.— Where a director contracted with a corporation to make certain expenditures for its benefit, stipulating that the amount of such expenditures, with interest, should be repaid to him out of the first surplus remaining from the earnings of the corporation, after -provision is made for payment of current expenses and the interest on its bonded debt, and thereafter the entire assets of the corporation were sold, he cannot subject any part of the proceeds of such sale, they being insufficient to discharge the corporation’s other -obligations and to reimburse the stockholders for the amount contributed by them to its capital stock.</p> <p>4. Contracts — Action—Pleading.—In an action to subject a fund to the -payment of a demand growing out of a contract to- be reimbursed, out of specified surplus earnings, for -certain expenditures made by a party to the contract at the instance of the other party, the petition must allege that the fund sought to be subjected represents such surplus.</p> <p>g. Corporations — Ultra Vires Contract — Enforcement.—A corpora-i tion, in dealing with an ordinary creditor, cannot retain the benefit of an ultra vires contract and refuse to perform the obligations imposed upon it by the contract, but this rule does not apply to a contract between the corporation and a director where the claim of the latter, for which it is sought to hold the corporation liable, is one which the corporation was without power to mate.</p>

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

<p>1. Trial — Continuance—Discretion.—Where tbe General Agent of a corporation knows tbe day its case is set for trial, and promises to be present at that time to testify, but is when the time comes outside tbe jurisdiction of tbe court, and no satisfactory explanation is given for bis absence, tbe trial court did not abuse its discretion in refusing tbe company a continuance on account of bis absence.</p> <p>2. Trial — Diligence—Witnesses.—In tbe absence of diligence on tbe part of tbe company to procure tbe presence of tbe agent, tbe court was justified in refusing to permit tbe company to read tbe affidavit filed as tbe deposition of the absent witness.</p> <p>3. Insurance, Life — Estoppel.—An insurance company who simultaneously with tbe delivery of a policy of life insurance, receives confidential and reliable information that many of the material answers in the application and in the medical examiner’s report are false, and continues thereafter to demand and collect premiums on the policy, will be estopped to assert the defenses growing out of such false answers.</p> <p>4. Insurance, Life — Estoppel.—Where the agent of ' the company, who was taking the application, explained to the applicant when' the question was reached as to whether the applicant had been previously rejected for insurance that the question meant only whether he had been rejected by this company and referred to no rejection by any other company, and the applicant answered in the negative after' such explanation, the company is estopped to rely upon such defense.</p>

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

<p>1. Schools — Rule Forbidding Students Entering Public Eating Houses. —A rule forbidding students entering public eating houses is a reasonable one and within the power of the college authorities to enact.</p> <p>2. Damages — Performance of Lawful Act in Lawful Manner. — When a lawful act is performed in the proper manner, the party performing it is not liable for mere incidental consequences injuriously resulting from it to another.</p> <p>3. Schools — Regulations College Authorities May Make. — College authorities stand in loco parentis concerning the physical and moral welfare and mental training of the pupils, and they may make any rule or regulation for the government or betterment of their pupils that a parent could for the same purpose.</p> <p>4. Schools — May Prescribe Requirements for Admission of Students. —A college or university may prescribe requirements for admission and rules for the conduct of its students, and one who enters as a student impliedly agrees to conform to such rules of government.</p>

<p>1. Railroads — Crossings.—Where a land owner conveyed to a railroad company a right of way through his farm, with the provision that grantee should furnish the necessary crossings, the grantor may recover damages in discharge of such covenant upon failure of the railroad company to comply therewith; ,and he may also recover damages for the inconvenience suffered by him in the use and enjoyment of his farm.</p> <p>2. Estoppel — By Participation in Proceedings Operating to Deprive One of His Rights. — Where the owner of a remainder interest actively participates in the conduct of an action by the life tenant for the recovery of damages in discharge of the covenant of a railroad company to furnish the necessary crossings, contained in the deed conveying a right of way across the lands so owned and held, he is thereafter estopped from asserting whatever right he may have had to or in the recovery.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Division No. 1).</p>

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

<p>Res Judicata. — Where a railroad company furnished to a shipper transportation at less rates than it was allowed by law to charge, and afterwards sued the shipper to recover, and did recover, the difference between the rate that was charged and the rate that should have been charged, the judgment in this case is a bar to a subsequent action by the shipper to recover from the company the amount he paid under the judgment, upon the ground that the company practiced a fraud upon him in charging him a less rate than it knew it had the right to charge, thereby inducing him to enter into contracts that he would not have entered into except for the deception practiced by the company in giving him a lower rate than he was entitled to.</p>

<p>1. Land — Quieting Title — Possession—When Necessary. — Where plaintiff claims under one patent and defendant under a deed from the patentee of another patent, plaintiff, if not in possession, cannot maintain an action to cancel the deed under which defendant claims and to quiet his title thereto, without showing some equitable ground for its cancellation other than the mere fact that it covers the lands in controversy and thereby creates a cloud on plaintiff’s title.</p> <p>2. Land- — -Action to Quiet Title — Proof of Possession — Answer by Defendant — Superiority of Title. — While it is the rule that where plaintiff fails to show actual possession and defendant, by answer and counterclaim, asserts title in himself and asks that his title be quieted, the court will pass on the question of superiority of title, yet this rule does not apply where the defendant merely denies plaintiff’s title and possession and asserts title and possession in himself without asking by counterclaim that his title be quieted, or that he be given other affirmative relief.</p>

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

<p>1. Taxation — Corporate Franchises — Double Taxation. — The valuation of the franchise of a street railway company, for the purpose of assessment and, taxation, being arrived at by taking the total value of the entire assets, tangible and intangible, of the corporation and deducting therefrom the value of its tangible property; where for any one year the valuation of the corporation’s tangible property within a city for assessment and taxation by the city, exceeds that made of the same property by the county assessor, and the valuation of the latter is adopted by the State Board of Valuation and Assessment in assessing such franchise for taxation in such city, the railway company, where it had previously paid to the city the tax on its tangible property therein according to its valuation by the city assessor, is entitled to a credit on its city franchise tax for the amount of tax it paid on the excess of the city’s valuation of its tangible property over that of the State Board, as otherwise it would, to the extent of such excess in the city’s valuation of Its tangible property, be subjected to double taxation.</p> <p>2. Taxation — Franchises.—A franchise tax is not a license or occupation tax, but an ad valorem or property tax.</p> <p>3. Taxation — Franchises—Correction of Apportionment. — Where, in apportioning the valuation of the franchise of a street railway company for the purpose of assessment and taxation hy a city, the State Board of Valuation and Assessment adopts a lower valuation of the street railway company’s tangible property, than that fixed by the city, it is unnecessary for the company to apply to the State Board to correct the apportionment, in order to obtain credit on its franchise tax to the city, by the amount of tax, in excess of what was due, it had already paid the city on its tangible property subject to taxation therein.</p>

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

<p>1. Limitation — Revivor—-Promise to pay. — In order for a debtor to revive a debt barred by the statute of limitations, there must be an express promise to pay, or an acknowledgment of the debt as a debt due at the time.</p> <p>2. Limitation — Revivor—Promise to Pay. — In order to.revive a debt barred by the statute of limitations, the acknowledgment of. the debt and the promise to pay it, must be made to the creditor, or to some one authorized to act for him, and it is not sufficient if made to a stranger.</p> <p>3. Assignment — Evidence.—The assignment of a claim by a person who is incompetent to testify for himself does not make him competent to testify for his assignee.</p>

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

<p>1. Land — Non-assessment and Non-payment of Taxes — Forfeiture—■ Railroad Right of Way. — Land conveyed to a railroad for a right of way is not subject to forfeiture under Article 3, Chapter 108, Kentucky Statutes, for a failure of the grantor to list it for assessment or to pay taxes thereon.</p> <p>2. Land — Boundaries—Streams—Forfeiture of Bed of River — Deed. —Where a party acquires' title to a tract of land described in the deed as “beginning on a gum and stone on the bank of said river thence running down with the meanders of same N. 62 E. 16 poles to a large rock marked ‘J. S.’, thence following the meanders of said river N. 53 E. 92-100 poles”, and then conveys the property by the description “beginning on two green trees at the foot of a cliff on the bank of the Cumberland River; thence down said river with the bank thereof N. 67 E. 200 feet to a large rock; thence down said river with the bank thereof N. 53 E. 511 feet”, the difference in the two descriptions is not sufficient to show an intention on the part of the grantor in the second deed to exclude the bed of the river, and the grantee in the second deed acquires title to the thread of the stream; and the grantor has no interest in the land which is subject to forfeiture under Article .3, Chapter 108, Kentucky Statutes.</p>

<p>1. Damages — Injury to Property — Evidence of Title — Sufficiency.— Evidence of plaintiff that he was the owner of property injured, when received without objection, is sufficient proof of title to maintain an action for damages caused by blasting.</p> <p>2. Damages — Injury to House and Bam — Evidence—Blasting.—In an action for damages for injuries to house and barn, caused by blasting, it is improper to permit plaintiff and his witnesses to state in general terms that he has been damaged in a certain sum; the witnesses should set out the injuries to the property and state what sum is necessary to restore the buildings to the condition they were in prior to the injury.</p> <p>3. Damages — Measure of Damages — Injury to Real Property.— ■ Where a house and harn are injured by blasting, the measure of damages is a sum sufficient to restore the property to the condition it was in prior to its injury, and such further sum as will compensate the owner for the diminution in the value of the use of the property during the continuance of the injury.</p> <p>4. Explosives — Injuries from Blasting. — Where blasting operations result in a direct trespass on the premises injured by causing soil and rocks to be thrown thereon, the liability of the company causing the injury is absolute, and it must respond in damages irrespective of the question of negligence or want of skill.</p> <p>6. Master and Servant — Independent Contractor — Natural Consequences of Work — Liability of Master. — Where blasting is necessary, and the natural and probable result thereof is to injure the property of another, the contractee cannot escape liability by having the work done by an independent contractor.</p>

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

<p>1. Pleading — Alternative Allegation Under State and Federal Law —Election—Necessity For — Error.—Where in an action by an administratrix against a railroad for damages for the death of her decedent, plaintiff alleges that at the time of decedent’s injuries he was engaged in the service of the defendant as brakeman on a train then used and operated in interstate commerce or intrastate commerce, and that one of these two states of facts was true, but which was true she did not know and could not state, it is error, on motion of the defendant, to refuse to require plaintiff to elect whether she will proceed under the state law or the Federal Employers’ Liability Act.</p> <p>2. Master and Servant — Action for Death — Negligence—Evidence —Sufficiency.—In an action against a railroad company by the administratrix of an employee to recover damages for the latter’s death, alleged to have been due to an unusual and unnecessary jerk of the train, evidence of the character of the jerk examined and held sufficient to take the case to the jury.</p> <p>3. Interstate Commerce — Federal Employers’ Liability Act — State Law — Applicability—Test.—In determining whether or not the Federal or State law is applicable in an action for damages against a railroad company for the death of an employee, the test is, were the injuries of the employee sustained while the company was engaged and the employee was employed in interstate commerce? If so, the Federal statute applies; if not, the state law is applicable.</p> <p>4. Interstate Commerce — Federal Employers’ Liability Act — State Law — When Applicable. — Where cars are brought from one state to another without orders to carry them farther than to the ■point of their destination, their interstate journey terminates on their arrival, and if after their arrival new orders are issued to distrbute inem and other cars to points within the state of their destination, the carrier, in handling the new train, is not engaged in interstate commerce, nor is an employee on that train employed in interstate commerce, and where an employee on such train is injured, or killed, the right of action arises under the State law and not the Federal statute.</p> <p>5. Evidence — Res Gestae. — Statements of the decedent that he was jerked from the train, made within two minutes after his injuries were inflicted, are competent as a part of the res gestae.</p> <p>6. 'Master and Servant — Action for Death of Employee — Gross Negligence — Proof Not Necessary. — Where a brakeman is injured by tlie negligence of the engineer, and death ensues, it is not necessary toi show gross negligence, but a recovery may be had for ordinary negligence.</p>

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

<p>1. Taxation — Inheritance Taxes. — Where a trust company in this State entered into a written contract with a resident of Chicago by Which it agreed to act as her trustee, acknowledged that it had possession, of her entire estate, and undertook to manage and control the same during her life, agreeing that at her death it would distribute the estate among her heirs under the statutes of descent and distribution in Kentucky, or in the event she left a will the same to be paid to the beneficiaries named in the will, Held, in an action by the trustee for a settlement of the estate and for direction as to the payment of inheritance taxes the lower court properly Charged the estate with inheritance taxes.</p> <p>2. Taxes — Inheritance Taxes. — Under the inheritance tax law all administrators, executors, trustees and the sheriff are made servants of the Commonwealth, and the duty is especially imposed upon them of collecting taxes due upon inheritances.</p>

<p>1. Bills and Notes — Action Against Assignor — Limitation.—Tbe liability of an assignor of a promissory note implied by law from tbe contract of assignment is barred by tbe lapse of five years after tbe maker of tbe note is prosecuted to insolvency.</p> <p>2. Bills and Notes — Action Against Assignor — Void Judgment Against Assignor — Effect of on Statute of (Limitations. — A void judgment obtained by tbe assignee against the assignor of a note does not suspend tbe running of tbe statute of limitations in favor of tbe latter.</p> <p>3. Liens — Vendor’s Lien. — Where a grantor in a deed conveys to tbe grantee certain land in consideration of $500, secured to be paid by a part of a note for $500 executed to grantee by bis brother, $240 of which is part of tbe consideration and the balance of the consideration, amounting to $260, is represented by tbe notes of the grantee, and a lien is retained on tbe land for the payment of tbe unpaid purchase money, and it appears that tbe grantee paid $260 of tbe purchase money in personal property, and tbe grantor obtained a judgment against the maker of tbe $500 note for $275, which was paid and which equaled, if it did not exceed, the balance of tbe purchase price with interest, the assignees of the $500 note are not entitled to a lien on the land for the balance due on the note.</p>

<p>New Trial — Action For — Pleading.—In an action for a new trial under Section 518 Civil Code, the plaintiff must show grounds for vacating the judgment sought to be set aside; and when he was defendant, must also show that he has a good and valid defense to the action; and his action must fail unless he establishes both of these grounds.</p>

<p>1. Finding of Chancellor. — Where the proof is contradictory and the mind is left in doubt upon a question of fact, the finding of the chancellor -will not be disturbed.</p> <p>2. Attorneys’ Fees — Lien For — Section 107 Kentucky Statutes.— Section 107 of the Kentucky Statutes, -which gives attorneys a lien upon claims put in their hands for collection, was not intended to deny to parties to an action the right to settle their differences independent of their attorneys, and without notice to them; but, if the parties to the action do so settle their differences, and money or other thing of value is paid by the defendant to the plaintiff as a consideration for the settlement, the attorney for the plaintiff may recover from the defendant a reasonable fee for his services.</p> <p>3. Attorneys’ Fees — Settlement of Case Without Consent of Plaintiff’s Attorney. — Where the plaintiff in an action for damages for' personal injuries settles the case with the defendant without the consent" or - assistance of the plaintiff’s attorney, the defendant’s obligation is to pay to tbe attorney for the plaintiff the fee which the plaintiff would have had to pay to his attorney.</p> <p>4. Attorneys’ Fees — Settlement by Plaintiff — Liability of Defendant. —Where an attorney. instituted an action for damages for personal injuries to the plaintiff, under a contract for a fee equivalent to one-third of whatever should be received for said injuries, and the plaintiff settled the case for $10,000.i00, the defendant was liable to the plaintiff’s attorney for $3,333.33, that sum being equivalent to one-third of the amount received by the plaintiff.</p> <p>5. Practice — Rule Deliberately Adopted Should Not Be Disturbed.- — ■ When a rule has been once deliberately adopted and declared by the courts, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error.</p>

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

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

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

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

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

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

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

<p>1. Husband and Wife — Creditor of Husband — Burden of Proof. — ■ Where a creditor of the husband attacks as fraudulent a conveyance made by the husband to the wife, the burden is on the creditor to show the fraud in the transaction.</p> <p>2. Husband and Wife — Transactions Between Prejudicial to Creditor —How Viewed. — The relations between the husband and wife make it exceedingly difficult to establish that transactions between them were fraudulent or without consideration and the court, in arriving at the truth of the matter, will not be controlled by their positive statements but will look into all the facts and cii’cumstances discovered by the testimony and act accordingly as the truth may appear. The rule of evidence which puts the burden on the creditor will not furnish a shield behind which husband and wife may hide property to which the creditor is entitled if he produces facts and circumstances sufficient to overcome the presumption that the transaction assailed was free from fraud.</p> <p>3. Homestead — Right to Not Affected by Fraudulent Conveyance.— The fact that the conveyance by the husband to his wife was fraudulent will not defeat their right to a homestead in the land fraudulently conveyed.</p> <p>.4 Homestead — Right to — Abandonment.—Where the debtor is occupying the land as a homestead at the time it is sought to be subjected, although between the date of its purchase and the institution of the suit to subject it, it was not actually occupied as a homestead, if it appears that their absence was only temporary, the homestead exemption will be saved.</p> <p>6. Homestead — Allotment of — Authority of Court to Make in Disposing of Exceptions. — Where commissioners have been appointed by the court to allot a homestead, the court, if exceptions are filed to the report of the commissioners, may diminish or increase the allotment upon hearing the evidence introduced on the exceptions.</p>

<p>1. Roads — Opening.—Tbe Fiscal Court has no authority to open a public road. This power is lodged exclusively in the county court under sections 4287-4300 of the Kentucky Statutes.</p> <p>2. Roads — Repair and Supervision of in Fiscal Courts. — After a road has been opened, the authority to repair and supervise it passes from the county court to the fiscal court and the county court loses jurisdiction to expend any of the public funds in repairing the roads.</p> <p>3. Roads — Fiscal Courts — Have No Authority to Make Allowance for Work Done on Roads Unless Contract is Made in Advance. — A fiscal court has no authority to make an allowance to a party for working on one of the public roads of the county unless the work is done under a contract with or by direction of the fiscal court.</p> <p>4. Counties — Not Liable on an Implied Contract. — A county cannot become indebted for services rendered or upon an implied assumpsit.</p>

<p>1. Municipal Corporations — Indebtedness—Constitutional Provision. —An indebtedness created in a previous year and remaining unpaid must oe counted in computing tbe indebtedness which the city may incur in a subsequent year under section 157 of the Constitution forbidding a municipality to become indebted in any manner in any year beyonck the income and revenue provided for the year without the assent of two-thirds of the voters thereof voting in an election to be held for that purpose.</p> <p>2. Municipal Corporations — Indebtedness for School Purposes.- — An indebtedness for school purposes in a city of the fourth class is a debt of the city within that provision of the constitution.</p> <p>3. Municipal Corporations — When and to the Extent Void. — An indebtedness beyond the Constitutional limit is void to the extent of such excess.</p> <p>4. Municipal Corporations — Indebtedness of. — A municipality having properly created a debt cannot defeat the obligation by failing to mahe the proper levy.</p> <p>5. Municipal Corporations — Presumption That Debt is Within Constitutional Limit. — A debt will be presumed to be within the constitutional limit unless the contrary appear.</p> <p>6. Municipal Corporations — Creation of Indebtedness — Vote of People. — A municipality may not without a vote of the people create in one year a debt to be thereafter paid in subsequent years out Qf the Income and revenue for such subsequent years, for the payment of which no provision can be made out of the income and revenue of that year.</p>

<p>1. Elections — Act Enabling Women to Vote At School Elections— “School Improvement Bonds.” — Under the Act of March 12, 1912, enabling women to vote at all elections of school trustees and other school officers required to be elected by the people, and upon all school measures or questions submitted to a vote of the people, women have the right to vote upon a proposition for a city of the first class to issue “School Improvement Bonds.”</p> <p>2. Elections — Act Enabling Women to Vote at School Elections.' — ■ An election upon a proposition of issuing school bonds is a school measure or question within the meaning of the Act of March 12, 1912, enabling women to vote at all elections upon all school measures or questions submitted to a vote of the people.</p> <p>3. Elections — Time and Place of Holding — Notice.—The time and place of holding regular elections are generally prescribed by public laws, and when this is so the rule is, that an omission to give the prescribed statutory notice will not vitiate an election held at the time and place appointed by law.</p> <p>4. Elections — Submission of School Bond Issue — Ordinance—Notice. ■ — Where a statute authorized the submission of a school bond issue to the vote of the people by an ordinance of the municipality, and did not prescribe any notice to be given of the election so authorized and called, the failure of the Mayor to give a notice prescribed by the ordinance did not invalidate the elec- \ tion.</p> <p>5. Elections — Submission of School Bond Issue — Ordinance—Notice. —Where an Act of the Legislature provides that a city council may submit the question of a school bond issue to the vote of the people at tlie next regular municipal election, without requiring any notice of the election to he given, the submission of that question by an ordinance duly adopted, constitutes all the notice that is necessary to a legal submission of the question, provided sufficient time ■ elapses between the adoption of the ordinance and the election to afford the voters a reasonable opportunity of informing themselves upon the merits of the question submitted.</p>

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

<p>New Trial — Discretion of Court in Granting. — Where the lower court in the exercise of a sound discretion grants a new trial this court has no right to interfere with that discretion unless it has been abused. In this action evidence considered and held that the new trial was properly granted.</p>

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

<p>'wills — Construction.—Where a testator devised all of bis property both real and personal belonging to him or that may belong to Mm at bis death to his wife, his intention was to give it all to her without limitation or restriction, and the separate clause appointing her “executor” as long as she remained his widow had no reference to the property, or of giving her a life estate in it.</p>

<p>1. Wills — Wlien Will Not Be Declared Void For Uncertainty. — • Where it may be ascertained -with reasonable certainty from the whole context of a will the intention of a testatrix, it will not be declared void for uncertainty.</p> <p>2. Wills. — If a devise over in remainder is void, and the devisee in remainder cannot take, the testator died intestate except as to the life estate devised; and the heirs at law have a present vested interest in the remainder.</p> <p>3. Wills — Religious Societies — Devise to — Heirs May Take Steps to Declare Void. — Where under the prohibtion in Section 319, Kentucky Statutes, a church cannot take title to real estate, where being no provision for a forfeiture as in Escheat Statutes, it is not essential that the State shall institute proceedings to declare the devise void; the heirs at law, who take title if the devise is void, may do so.</p> <p>4. Religious Societies — Section 319 Kentucky Statutes, Not Discriminatory Against. — Section 319 Kentucky Statutes is not discriminatory against churches or Societies of Christians, and was not so intended. It applies alike to all churches or societies of whatever faith or belief.</p>

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

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

<p>1. Municipal Corporations — Annexation of Territory. — Contracts— Election to Purchase Water Works Plant — Wbat Constitutes. — i Under a contract made by a city with a -water company to purchase, if it should so. elect, the water works plant by which the latter had supplied the .inhabitants of a contiguous tewn with water, should such town be annexed to and made a part of the city, a mere offer by the city of a certain price for such water plant after the annexation of the town to the city, in view of the water company’s refusal of the city’s offer, did not constitute an election on the part of the city to purchase such water plant; and in the absence of its haying made an election to buy same, the city could not be compelled to enter into the arbitration for fixing the purchase price of the water plant, provided for in the contract.</p> <p>2. Municipal Corporations — Legislative Act as to Municipalities— Compulsory Requirement as to Purchase by a City of a Water Plant in Territory Annexed — Unconstitutional.—So much of the act of tbe General Assembly, approved March 23, 1910, (page 253, Acts 1910) as seeks to compel a city, annexing a neighboring town, to purchase and pay for a water plant owned and operated therein; and in the event of disagreement as to price to leave the fixing thereof to arbitration, is violative of the provisions of the Constitution of the State, and also the Fourteenth Amendment to the Constitution of the United States; and being void, such act does not interfere with the city’s right to extend the pipes and appurtenances of its own water works into the annexed territory, for the purpose of supplying its inhabitants with water.</p>

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

<p>1. Land — Action Under Section 491 Civil Code for Sale of Real Estate for Reinvestment — Contingent Remainders — Necessary Parties to Action. — In an action, brought under section 491 Civil Code, to sell for reinvestment real estate devised to one for life, and at his death to go to the heirs of his body, but in the event the life tenant die without issue, same to go to the three brothers of the life tenant, or to the living descendants of those who might be dead. Held, That as the life tenant and his son and only child, the first remainderman, were living at the time of the institution of the action, and were plaintiffs in the</p> <p>‘ action, the court had jurisdiction to sell the land; and while it was proper to make the life tenants’ three brothers, the second remaindermen, parties to the action to show their approval of the sale and reinvestment, neither they nor their children, the third contingent remaindermen, were necessary parties.</p> <p>2. Wills — Successive Contingent Remainders Under — How Divested by Sale and Reinvestment Under Section 491 Civil Code. — While the will, under which the title to the land sold for reinvestment was devised, created three contingent remainders, it was only necessary to bring before the court, in order to obtain a valid sale of the land for reinvestment of the proceeds, “the person, if in being, in whom it (the title) would have vested if the contingency had happened before commencement of the action.” And as the son of the life tenant was the only person in being, in whom the estate, would have vested, if the life tenant had died before the commencement of the action; and the life tenant and his son, together with their wives, were made parties to the action, the validity of the sale made of the land cannot be questioned by the purchaser.</p> <p>3. Land — Sale of for Reinvestment. — Meaning of Section 491 Civil Code — Rule as to Representation Recognized by Courts. — It is the meaning of Section 491 Civil Code, and a rule recognized by the courts, that in an action brought thereunder persons holding remote contingent interests in the real estate sought to be sold for reinvestment, are not required to be actually brought before the court, but will be treated as parties, where the interests are properly represented by those next before them whose several interests combined make up the first estate of inheritance, if the latter are before the court.</p> <p>4. Parties — Effect of Joining All in Interest as Plaintiffs. — It is not a valid ground of objection to the judgment or sale that the contingent remaindermen were made plaintiffs, instead of defendants, to the action. Being adults and under no disability, their voluntarily joining therein as plaintiffs gave consent to what might have been compelled of them as defendants, and served to reduce the cost of the proceedings.</p>

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

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

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

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

<p>Appeal — Bill of Exceptions — Necessity—Error of Court in Suspending Trial. — An error of the court in suspending the trial of a case and taking up the trial of other cases before juries some of the members of which are jurors in the suspended trial, can not be reviewed unless shown by the bill of exceptions.</p>

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

<p>Action — Commencement—Limitation.—The filing of a petition or amended petition, accompanied by a direction to the clerk to issue summons, is not a commencement of an action against a defendant sought to be charged, within the meaning of Section 2524, Kentucky Statutes, and Section 39, Civil Code, if as a matter of fact no summons is actually issued against said de- • fendant.</p>

<p>1. Corporations — Foreign Corporations — Cannot Enforce Contracts Without Complying with the Registration Laws of the State— Section 571 of Statutes. — A foreign corporation cannot enforce the collection of the amount due on a contract entered into in the execution of its business in this State if it has not complied with section 571 of the Kentucky Statutes providing that •all corporations must have a known place of business in this state and an authorized agent thereat upon whom process may be served.</p> <p>2. Corporations — Foreign Corporations — Unlawful to Do Business fn State Without complying with Section 571 of the Statutes — Effect on Contracts. — The statute does not expressly declare that contracts made before complying with it shall be void or not enforceable, but the fact that the statute imposes a penalty for engaging in business in violation of it has the same effect and accomplishes the same end as if the statute had expressly declared the invalidity of contracts made without observing its conditions.</p> <p>3. Corporations — Foreign Corporations — Party Contracting With Not Estopped to Set Up as Defense Failure of Corporation to Comply with Section 571. — A person who makes an otherwise valid contract with a foreign corporation that has not complied with the provisions of Section 571, will not be estopped to rely on this defense if sued by the corporation. The effect of allowing the plea of estoppel would be to defeat one of the chief purposes of the statute, as there are few casds in which business transactions are not directly conducted between the corporation and the persons affected by the contract.</p> <p>4. Statutes — Purpose of Section 571 of the Kentucky Statutes.— This section was intended as a police regulation for the protection of the people of the State who have a right to know whether the party they are dealing with is an individual or a corporation.</p> <p>5. (Statutes — Sections 566 and 571 — Construction and Effect of. — ■ gection 566 relates to defects in the organization of a corporation and a person dealing with a corporation will not be permitted to raise the question that it was not legally organized; while section 571 relates exclusively to the matter of a corporation doing business in this State without having an agent and a place of business in the State, and was enacted pursuant to Section 194 of the Constitution.</p> <p>6. Stare Decisis — Importance of Adhering to Rule of. — Courts of last resort should, unless in exceptional cases, adhere to rules of law announced in long established decisions that have become a part of the jurisprudence of the State, on the faith of which people have transacted business, entered into contracts and conducted in a general way their affairs.</p> <p>7. 'Stare Decisis — Definition of. — The rule of stare decisis, stated in simple form and considered in its relation to private affairs is really nothing more than the application of the doctrine of estoppel to court decisions. It finds its support in the sound principle that when courts have announced, for the guidance of the public, certain controlling principles of law, they ought not, after these principles have been promulgated, withdraw or overrule them to the disturbance of contract and property rights that have been entered into on the faith and credit that the principles announced were the law of the land.</p> <p>8. Stare Decisis — Parties Who Are Not Entitled to Rely on Rule of. —(The doctrine of stare decisis cannot be relied on by a party who has not in good faith been deceived by the decision under which he claims to have acted, and when it appears that a party was not misled to his prejudice by reliance on a decision, the court will not feel estopped to overrule it by the insistence of the party claiming to have acted under it that it would overturn contracts and engagements that he had entered into on the faith of it.</p> <p>9. Stare Decisis — Limitation Upon Rule of. — A court of last resort Is not irrevocably bound to follow opinions that in the light of present circumstances and conditions seem to be erroneous, and when a court of last resort, after mature deliberation, concludes that a question involving important public or private rights has been erroneously decided, it should not feel bound to adhere to the erroneous decision, although overruling it may affect prejudicially private interests. The rule is not in any sense ironclad, and the future and permanent good of the public is to be considered rather than any particular right or interest.</p> <p>10. Stare Decisis — Decisions Cannot Be Overruled so as to Have the Effect of Impairing the Validity of Contracts. — The rule is that if a contract when made was valid by the laws of the State as administered in its courts of last resort, its validity and obligation cannot be impaired by subsequent decisions of its courts, and the construction which the highest court of a state has given a statute of the State becomes a part of the statute, and a change of judicial construction, where it affects the validity of a contract, will have the same effect as a legislative amendment that undertakes to impair the obligations of a contract.</p> <p>11. Stare Decisis — When Party Not Entitled to Invoke the Protection of the Rule That Decision Cannot be Overruled so as to Affect His Rights. — When a party, by reason of his violation of law, puts himself in the attitude of losing his right to enforce a contract demand created under a contract that he claims to have entered into on the faith of. a decision, he cannot claim that subsequent decisions overruling the one he relied on impaired the obligation of his contract, as a party cannot invoke the protection of beneficial rules of law intended to save from loss law-abiding citizens, when he made the contract in question in violation of a statute of the State.</p>

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

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

<p>Judgment — Action Under Section 439 Civil Code to Satisfy — Lien.— In an action under section 439 Civil Code to enforce satisfaction of a judgment, after appellant’s disclosure that he was the owner of the land, it was not necessary for appellee in order to acquire. a lien to have another execution issued and levied upon it, or to sue out an attachment. But the land sought to be sold being a remnant of a larger tract that appellant and his wife jointly owned, she should be made a party and her interest determined, before its sale.</p>

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

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

<p>1. Railroads — Interstate Commerce Act — Skippers.—As to interstate shipments, the Carmack Amendment of June 29, 1906, to the Inter-. state Commerce Act of 1887 supersedes the Kentucky doctrine that the shipper is not bound by a recital of value in his contract of shipment.</p> <p>2. Railroads — Interstate Commerce Act — Action for Lost Baggage.— Under the Carmack Amendment of June 29, 1906, to the Interstate Commerce Act of 1887, a carrier may, with the consent of the Intrestate Commerce Commission, adopt a regulation by which it will not be liable to an amount exceeding $100.00 for the baggage of an interstate passenger lost through the carrier’s negligence, unless a greater value is placed upon the baggage by the carrier and an extra charge paid for the valuation in excess of $100.00.</p> <p>3. Damages — Measure of. — The general rule is, that in cases of loss of goods for which a carrier becomes liable, the measure of damage is the value of the goods at the point of destination; but this general rule is not applicable in every case and to every class and species of personal property.</p> <p>4. Carriers — Lost Baggage — Measure of Damages. — The measure of damage for a loss of baggage consisting of clothing and wearing apparel is the value of the clothing for use by the owner.</p>

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

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

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

<p>Mechanics’ Liens — Sureties.—The owner of an engine who rents it to a sewer contractor to use in the construction of a sewer, has no mechanic’s lien under the statute for the rent of the engine, although used in the construction of the sewer, and may not ■ maintain an action against the surety in a bond conditioned for the protection of persons furnishing material in such work.</p>

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

<p>2. Insurance Life — Policy Payable to Wife of Insured — Rights of Creditors. — Under Kentucky Statute 654, premiums on life insurance policies paid by insured in fraud of creditors may be recovered from his widow, the beneficiary, and same constitute a fund which inures to the benefit of all the creditors In said section mentioned; said fund is a part of decedent’s estate.</p> <p>2. Insurance, Life — Policy Payable to Wife — Rights of Creditors in Recovery of Premiums Paid in Fraud of Creditors. — Where premiums on life insurance policies paid in fraud of creditors are recovered, the fund so recovered is for distribution ratably among all the creditors in said section named; the creditors bringing the action .to recover said fund are not because thereof entitled to priority in the distribution of said fund. The action should be instituted by the personal representative, but in the event of his failure or refusal to bring same, it may be brought by one creditor, but all creditors should be made parties. S. Insurance, Life — Policy Payable to Wife — Recovery of Premiums Paid on Policy in Fraternal Insurance Organization in Fraud of Creditors. — Under Kentucky Statutes, Section 671, premiums paid by insured on a policy in a fraternal insurance organization, in fraud of creditors, are not recoverable from his widow, the beneficiary in said policy.</p>

<p>1. Master and Servant — Pleading—Election Between Federal Act and Common Law. — Where an employe of a railroad company is.injured, and in a suit to recover damages, states his cause of action in the alternative under the Federal Employers’ Liability Act and the common law prevailing in this State, he should ibe required to elect under which law he will prosecute his action, but the failure of the court to require him to elect will not amount to reversible error unless it appears that the substantial rights of the defendant were prejudiced by the ruling.</p> <p>2. Master and Servant — Pleading—Motion to Elect Between Causes of Action — Harmless Error. — Where the plaintiff brought suit to recover damages for personal injuries and stated his cause of action in the alternative under the Federal Employers’ Liability Act and the common law, and the court, at the conclusion of the evidence, ruled that the action must be prosecuted under the common law, the defendant was not in this case prejudiced by the failure to sustain his motion' to elect before the trial was commenced.</p> <p>3. Master and Servant — Fellow Servant. — Where two separate crews of men are engaged in repairing a car under the supervision of the same foreman, they will not be treated as fellow servants of each other when they are engaged in separate, distinct kinds of work and neither crew has anything to do with the work being performed by the other crew, and the master will be liable if an injury is sustained to a member of one crew by the negligence of a member of the other crew.</p> <p>4. Master and Servant — Right of Servant to Recover for Personal Injuries Caused by Insufficient or Incompetent Men. — Where a servant is injured by 'reason of the .fact that the master has not sufficient men to do the kind of work dhgaged in, or where some of them are incompetent and so known to be by the master, a servant who suffers injury on account of either of these things may recover damages from the master.</p>

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

<p>1. Master and Servant — Injury to Child under Sixteen. — Where a child under sixteen years of age is injured in a dangerous employment, it is not necessary, to sustain a recovery in his behalf, that there should he evidence that the place in which he w^s working was unsafe or the appliances defective.</p> <p>2. .Master and Servant — (Fellow Servants. — Drivers in charge ot different trains of cars in a mine are not fellow servants.</p>

<p>1. New Trial — Grounds—Violation of Agreement by Attorney — Tender of Answer — Verification—Necessity.—Where defendant asks for a new trial on tbe ground that it was prevented from making proper defense by tbe violation of an agreement made with plaintiff's attorney, it is necessary to tender a good and sufficient answer, verified according to law. Where the answer is not verified, it is not error to refuse a new trial.</p> <p>2. Pleading — Petition—Sufficiency.—A petition which alleges in substance that on October 27, 1912, at the special instance and request of both the defendants, plaintiff loaned to them the sum of $5,000, which amount they each both jointly and severally agreed to pay plaintiff one day after date with six per cent interest from date until paid, that said debt' was just and no part thereof had been paid, though payment thereof had been frequently demanded, states a cause of action.</p> <p>3. Pleading — Answer—Sufficiency.—-Where the petition alleges that on October 22, 1912, at the special instance and request of both the defendants, plaintiff loaned to them the sum of $5,000, which amount they each both jointly and severally agreed to pay plaintiff one day after date, an answer by one of the defendants denying “that on the 22nd day of October, 1912, at its special instance and request, plaintiff loaned to defendant the sum of $5,000, which amount both jointly and severally agreed to pay plaintiff one day after date” is not sufficient.</p> <p>4. Pleading — Answer—Sufficiency.—Where -plaintiff sues to recover the sum of $5,000, which sum it alleges it loaned to both defendants, and which they both jointly and severally agreed to pay plaintiff, a plea of no consideration by one of the defendants is not available where its answer is so framed as to admit the loan and the promise to pay, and consequently the consideration itself.</p>

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

<p>1, Judgment — Action to Vacate, and for a New Trial, Section 518 Civil Code — Foreign Corporations — Service of Summons on Agent -of. — In an action brought under section 518, Civil Code, by a foreign corporation doing business in this State, to vacate a judgment obtained against it by a resident of this State, and to obtain a new trial, service of summons in the action in which the judgment was rendered having been duly made by the sheriff upon the person designated by the foreign corporation, in a written statement filed in the office of the Secretary of State, as its agent to be served with such process, such service gave the circuit court jurisdiction to render the judgment complained of, although the agent of the defendant upon whom the summons was served neglected to notify it of the service thereof or of the institution of the action.</p> <p>2. Corporations — Provisions of Section 571, Kentucky Statutes, Mandatory — Effect of Noncompliance With. — The provisions of section 571, Kentucky Statutes, declaring that “All corporations, except foreign insurance companies, formed under the laws of this or any other State, and carrying on any business in this State, shall at all times have one or more places of business in this State, and an authorized agent or agents thereat upon whom process can be served; and it shall not be lawful for any corporation to carry on any business in this State, until it shall have filed in the office of the Secretary of State a statement, signed by its President or Secretary, giving the location of its office or offices in this State, and the name or names of its agent or agents thereat upon whom process can be served; and when any change is made in the location of its office or offices or in its agent or agents, it shall at once file with the Secretary of State a statement of such change; and the former agent shall remain agent for the purpose of service until the statement of appointment of the new agent is filed;” * * * are mandatory. So, if any corporation, after filing such statement designating its place of business in this State and the name of the agent thereat upon whom process can be served, should change its place of business or its agent and fail, by the filing with the Secretary of State of the necessary statement, to designate its new place of business and new agent upon whom process can be served in any action brought against it, service of summons upon the agent designated in the unchanged statement on file with the Secretary of State will be good, and have the legal effect to give the court from which such summons issued jurisdiction to render a judgment against the defendant corporation.</p> <p>3. Corporations — Effect of negligence of Corporation’s Agent in Failing to Notify it of Service of Summons Upon Him — Estoppel —Unavoidable Casualty or Misfortune. — The negligence of the designated agent of a corporation, properly served with summons, in failing to notify the corporation of the service thereof, will not entitle the latter to the vacation of a default judgment rendered against it on such service, or to a new trial, on the ground of “unavoidable casualty or misfortune” as provided by subsection 7, section 518, Civil Code; as in such case the negligence of the agent is imputed to the corporation and estops it to complain of the negligence of the agent.</p>

<p>1. Statutes — Repeal by Implication Not Favored. — (Repeals by Implication are not favored by the courts, and no statute will be construed as repealing a prior statute, unless it be so clearly repugnant thereto as to admit of no other reasonable construction.</p> <p>2. Statutes — Inconsistent Statutes — Rule as to Construction. — When two statutes bearing on the same subject appear on their face to be inconsistent with each other, the court will harmonize them if possible so as to allow both statutes to stand; or if that cannot be done without violence to some part of the language ' employed in one or- both of the statutes, the rule is to construe them so that.both will stand so far as possible, and wherein any part of either is irreconcilable with any part of the other, the latest statute stands, while the inconsistent part of the former is deemed to have been repealed.</p> <p>3. Statutes — Act of March 18, 1912 — Street Improvement. — The Act approved March 18th, 1912 (Acts 1912, p. 380), amending Chapter 89 of the Kentucky Statutes constituting charters of cities of the third class, does not repeal section 34,56 of the Kentucky Statutes, which provides that the cost of street intersections shall in all cases be paid by the city.</p> <p>4 Municipal Corporations — Street Improvement. — Under Chapter 89 of the Kentucky Statutes as amended by the Act of March 18th, 1912, a city of the third class may provide that the cost of street improvements may be paid upon the ten-year plan, both as to the part thereof which is to be paid by the property holder, and the part thereof that is to be paid by the city; it cannot, however, require the cost of street intersections to be paid by the property-owner.</p>

<p>1. Live Stock — 'Killing of by Railroad — Presumption of Negligence— Rebuttal of Presumption. — Under Section 809, Kentucky Statutes, the killing or injuring of stock by a railroad train is presumed to have been caused by the negligence of those in- charge of the train; and the burden of proving that such was not the case rests ! upon the railroad company. It may, however, relieve itself of ■' that presumption by showing, by competent evidence, that its servants in charge of the train used ordinary care to avoid the killing or injuring of the stock.</p> <p>2. Live Stock — Killing by Railroad — Conflicting Evidence — Question for Jury. — When, notwithstanding the testimony of those in charge of the train that ordinary care was used by them to avoid killing or injuring the stock, other witnesses testify that they were negligent, it becomes the duty of the trial court to permit the jury to pass upon the question of negligence or no negligence from all the evidence; and in such case the finding of the jury, if reached under proper instructions, will not be disturbed.</p>

<p>1. Personal Injuries — Action Against City for — Negligence.—Where a stone step in a city is permitted to become loose, and tipped when stepped upon so as to throw a pedestrian and injure him, the city is liable; and it matters not whether the negligence consisted of some inherent defect of construction, or in failure to keep the step in proper repair.</p> <p>2. Personal Injuries — Evidence.—Evidence by the injured person that he thought for two weeks he was going to die, was not prejudicial inasmuch as the physician in attendance testified in substance the same.</p> <p>3. Personal Injuries — Evidence.—Evidence by an inexperienced witness who had not examined the injured person that he seemed to be suffering a great deal and that witness thought he was in a dangerous condition, was improper; but was not prejudicial in this case because the physicians gave in substance the same testimony.</p> <p>4. Verdict — When Verdict for $3,500.00 Not Excessive. — A verdict of $3,500 is not excessive where the injured person is 58 years of age, earning $2.00 per day, and who suffered greatly, and whose injury probably completely destroyed his earning power.</p>

<p>1. Municipal Corporations — Cities of the ¡Fourth Class — Sewers— Assessment. — Under sub-section 9, section 3490, Kentucky Statutes, cities of the fourth class are not required where the cost of a sewer exceeds one dollar per abutting foot, to assess the cost thereof on property abutting and benefited thereby, but may assess the cost to the extent of one dollar per abutting foot on the abutting property, and pay the remainder of the cost out of the general fund.</p> <p>2. Municipal Corporations — Cities of the Fourth Class — Sewers— Assessment. — One owning property abutting on a street dividing two cities cannot complain that property lying in the other city, though abutting on the sewer constructed in the city where his property lies, is not required to bear any part of the cost of the sewer.</p> <p>3. Municipal Corporations — Cities of the Fourth Class — Ordinance— (Publication. — Under a statute providing that ordinances shall be published at least once in some newspaper published in the city, or by hand-bills, the posting of typewritten hand-bills in eight or ten conspicuous places in the city is a sufficient compliance with the statute.</p> <p>4. Municipal Corporations — Cities of the Fourth Class — Sewers— Original Improvement. — The fact that a drain existed in a street is not sufficient to show that a sewer subsequently constructed was not an original improvement in the absence of evidence showing that the drain was a sewer within the purview of the statute, and that the cost thereof had been assessed against the abutting property owners.</p> <p>5. .Municipal Corporations — Cities of the Fourth Class — Sewers—Dot Abutting on Two Streets — Assessment.—A lot abutting on two streets may be assessed on each of the streets, to the extent of one dollar per abutting foot, for the cost of a sewer.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Division No. 2).</p>

<p>1. Appeal. — Appeals are heard upon, the record as shown by the Bill oí Exceptions.</p> <p>2. Appeal — Maps—When Will Be Stricken from Record. — In the absence of an agreement of record, by the parties to the appeal, a map attached to the record by the clerk in making up the transcript for the appeal, which was not used upon the trial, will, upon motion, be stricken from the record.</p>

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

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

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

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

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

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

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

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

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

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

<p>1. Equity — Title—Purchaser of Legal Title from Trustee — Trusts.— It is a fundamental principle that one who buys a legal title from a trustee for value, and without notice of the trust, acquires 'the title discharged from the trust.</p> <p>2. Equity — Rule in Regard to Equities. — The recognized rule in regard to equities is, that he who has the prior equity in point of time has the prior right, and therefore a party resisting the equity, in order to maintain Ms defense, must protect himself either under an elder equity, or he must have purchased the legal title bona fide without notice, for a valuable consideration, and must have paid the purchase money.</p> <p>3. Equity — Purchaser of Land — Payment—Notice.—Where the purchaser of land deposited a certified check for the purchase money in the hands of a third party, to be held pending the execution of the deed, the check amounted to an appropriation of the purchase money, and is a payment thereof within the meaning of the rule that a purchaser will be protected only when he is a bona fide purchaser for value without notice, and must have paid the purchase money before notice of an outstanding equity.</p>

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

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

<p>1. Criminal Law — Indictment—Sufficiency.—An indictment which shows that the defendant stabbed the deceased on a certain day, and charges that the deceased then and there died, sufficiently shows that the deceased died within a year and a day, and is not defective.</p> <p>2. Criminal Law — Self Defense — Defendant May Act Upon Appearances. — The defendant may act upon appearances, and if he acts reasonably, is justified upon the grounds of self defense or the defense of another where the deceased was the aggressor in the difficulty.</p>

<p>1. Waters — Drainage of Land Into Natural Stream. — Adjoining- land owners have the right to drain their land so as to cause the surplus water that falls on their land to flow by artificial drainage into a natural stream of water that runs through the body of land drained, and this they have the right to do by tile or open drainage.</p> <p>2. Waters — Levees That Obstruct Natural Flow of — Diversion of Water. — While the land owner may by artificial drainage cause the surface water that comes on his land to be diverted into a natural stream, he may not put up levees along the drainage that will divert the water to the land of adjoining proprietors.</p> <p>3. Waters — Right of Proprietors to Control Surface Waters. — The owner of the lower ground has no right to erect embankments that will cause the water from the upper ground to back upon and overflow it, nor has the owner of the upper ground the right to make excavations or barriers or drains by which the flow of surface water will be diverted from its natural channel and thrown on adjoining proprietors.</p> <p>4. Waters — Drainage—Ditches—'Levees.—Where a system of drainage by open ditches has been established, the dirt, in making the ditches or in cleaning them out, may be thrown on the lower side of the ditch so as to form a levee, but there must be openings left in the levee, level with the surface of the ground, sufficiently close to each other and wide enough to prevent the levees from obstructing the flow of the surface water.</p>

<p>1. Damages — Fright—No Recovery for Unaccompanied by Physical Injury. — There can be no recovery for fright unless it is accompanied by physical injury.</p> <p>2. Damages — Excessive.—When it appears that the damages awarded in cases of personal injury are so excessive as to indicate that the jury was influenced hy passion or prejudice, the verdict should he set aside.</p> <p>3. Damages — Nervousness—Instruction.—An instruction allowing a recovery for “mental pain or nervous or physical suffering” is erroneous in the use of the word “nervous.” A recovery should he limited to physical or mental pain or suffering.</p>

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

<p>1. Vendor and Purchaser — Fraudulent Concealment. — Where a vendor sells a farm upon which are located two graveyards; and informs his vendee of the existence of one and conceals from him the existence of the other, even if he was under no duty to make any disclosure, he cannot seek refuge in the maxim caveat emptor for he cannot tell half the truth, creating the false impression that he has told the whole truth, and then avail himself of the maxim.</p> <p>2. Fraud — Fraudulent Concealment. — Whether a vendor of land is under any duty to make disclosure of the existence of graveyards thereon or not, where there are two graveyards on a farm, and the vendor makes disclosure of one and conceals .from his vendee the existence of the other, thereby creating a false impression upon the mind of the vendee that full disclosure has been made, he cannot seek refuge in the maxim caveat emptor.</p>

<p>1. Municipal Corporations — Streets—Personal Injury — Contributory Negligence. — In an action by plaintiff against a municipality for injuries caused by plaintiff’s stepping from a street car into a hole in one of its streets, contributory negligence held a question for the jury.</p> <p>2. Municipal Corporations — Streets—'Defective Condition — Evidence. —Evidence that several months prior to plaintiff’s injury another person had fallen into the same hole in the street in which plaintiff had fallen and been injured, is competent on the question of whether or not the municipality knew, or by the exercise of ordinary care could have known, of the existence of the hole.</p> <p>3. Municipal Corporations — Streets—Defective Condition — Evidence. —Evidence of the existence of other holes in the street in the vicinity where plaintiff was injured held incompetent but not prejudicial.</p> <p>4. Pleading — Amended Answer — ^Rejection by Court — Abuse of Discretion. — Where in an action against a street car company and a city the city pleaded a release of the street car company as a bar to the action against it, but did not plead that the compromise sum was accepted in full satisfaction of plaintiff’s cause of action, the court did not abuse its discretion in refusing to permit the defendant to file an amended answer presenting this plea after plaintiff’s evidence had been heard.</p> <p>5. Evidence — Issue Not Made by Pleadings. — It is not error to refuse evidence on an issue not made by the pleadings.</p> <p>6. Damages — Personal Injury — Joint Tort Feasors — Acceptance of Part Satisfaction from One — Effect on Other. — The acceptance by one who has a cause of action against two joint tort feasors of a sum of money from one of them in part satisfaction of his cause of action does not release the other.</p> <p>7. Damages — Joint Tort Feasors — Compromise Settlement With One —Credit on Judgment Against Other. — Where in actions against . two joint tort feasors plaintiff accepts a certain sum from one of: them in part satisfaction of Ris cause of action it is proper to authorize a recovery against the other one in the event that the Jury believe from the evidence that plaintiff’s damages exceeded that sum, and then to the extent of the excess only.</p> <p>8. Damages — Excessive.—Where plaintiff’s leg is broken and she is confined to her house for ten weeks and compelled to walk on ’ crutches for sixteen weeks, and she suffers severely not only dur- / ing that time, but continues to suffer up to the time of the trial, which occurred about three and one-half years later, and her leg is not then able to stand the usual strain of walking thereon, a verdict of $1,250 is not excessive.</p>

<p>Costs — Costs on. Appeal — Transcript of Record May Be Filed By Appellee in Office of Clerk of Court of Appeals — Cost of Paid by Appellant. — As Section 741, Civil Code, allows the appellee to “file a copy of the record in the Clerk’s Office of the Court of Appeals with the same effect, as if filed by the appellant,”'upon an affirmance by the Court of Appeals of the judgment appealed from, the appellee may recover of the appellant the cost of the transcript filed by him in the office of the Clerk of the Court of Appeals, and the State tax paid thereon, although the appellant must also pay the cost of a similar transcript subsequently filed by him in the Clerk’s Office of the Court of Appeals within the time required to give the Appellate Court jurisdiction of the appeal.</p>

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