Volume 157 — Kentucky Reports

<p>1. Waters — Overflow—Surface Waters — Injury to Real Property from Overflow — Damages Recoverable. — If an injury io real property, is caused by the wrongful act of a Railway Company in so erecting abutments, piers and embankments in bridging a creek as to obstruct the waters thereof and make them overflow and stand upon the property, the owner may recover of the Railway Company, the damages sustained thereby. If, in such case, the trouble can be remedied at a reasonable expense, the structure will be regarded as temporary, and the plaintiff may recover damages for each recurring overflow of his property from the same cause, as long as the structure remains in the same condition; but if the trouble cannot be remedied at reasonable expense it should be regarded as permanent, in which event there can be but. one recovery; and where there is an issue of fact as to whether a defect can be remedied at reasonable expense the question is one for the jury. Where, however, the structure causing the injury is treated by both the parties as permanent, the Court may so treat it; and in such case the one recovery must suffice.</p> <p>2. Waters — -Overflow—When Recovery May Be Had By One Not Owner of Property at the Time Structure Was Erected. —Accrual of cause of action. — Although the structure causing the overflow may have been erected before the title to the property was acquired by the person owning it at the time of the overflow, he may, nevertheless, recover damages for an injury resulting from an overflow caused by sucli structure, occurring after be became owner; provided, it was not reasonably apparent to an ordinarily prudent person when tbe structure was erected, or at tbe time of bis purchase of tbe property, that it would cause its inundation.</p> <p>3. Land — Not Required to Sue Until Injury Occurs or Becomes Reasonably Apparent. — A party is not required to sue for damages to his real estate resulting from a permanent structure, until it becomes reasonably apparent that be has suffered or will necessarily suffer such damage.</p>

<p>1. Criminal Law — -Indictment—Trial—Discretion of Court. — Under section 141 of the Criminal Code of Practice, which provides that the court may, where the defendant in an indictment is on bail, order a bench warrant to issue, or commit the defendant to custody and fix the amount of bail to be given by him, it is within the sound discretion of the court to order the .bench warrant, or commit the defendant to custody and fix the amount of his bail, or to permit him to stand upon the bond theretofore given in the examining court.</p> <p>2. Sureties — Rule for Judgment on Bail Bond — Liability—Insanity of Defendant. — Where a defendant in an indictment is on bail and becomes insane and wanders away and fails to appear when reuired by his bond, the surety upon the bond is liable.</p> <p>3. Sureties — Insanity of Defendant in Bail Bond — When Surety is Released. — It is only in cases where the lunatic has been adjudged of unsound mind, and is in the custody of the State, that the surety is released.</p>

<p>1. Verdict. — A verdict will not be disturbed unless it is palpably against the evidence, or so excessive as to warrant tbe conclusion that it was the result of passion or prejudice.</p> <p>2. New Trial — When Mistake in Name of Juror Not Ground for. —The name of the juror being entered on the list as J. C. Cahlein, when his real name was J. C. Dahlen, is not ground for new trial although the defendant was misled by the mistake and would not have accepted the juror if he had known who he was, but could have learned who he was b^ questioning him before accepting him - on the panel.</p>

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

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

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

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

<p>Specific Performance — Premature Suit. — Where a landlord brought a suit against a tenant to enforce specific performance of the terms of the lease, the suit cannot he maintained unless it appears that the tenant is then about to commit some violation of the terms of the lease that will prejudice the rights and interests of the landlord.</p>

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

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

<p>1. Landlord and Tenant — Lease—Renewal—Rent.—Under a lease for less than a year which provided that the tenant might renew it for a year longer on the same terms, and that if he remained in possession after the term with or without the consent of the landlord, he might be evicted, the tenant by holding over and paying rent did not renew the lease and is not liable for rent beyond the time he oecilpied the property.</p> <p>2. Landlord and Tenant — Lease—Renewal.—A provision in a lease giving the tenant the privilege of renewing it, is to be distinguished from a provision giving him the privilege of a longer term, and to exercise his option he must renew the lease as provided in the instrument.</p>

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

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

<p>1. Deeds — Grantor Estopped to Say He Had No Title to Property Conveyed. — The grantor in a deed is estopped to assert that he had no title to the property which he assumed to convey therein, or to deny that any material fact or representation made in such an instrument is not true.</p> <p>2. Deeds — Warranty—-What Will Not Avail as Defense Against. — The fact that a grantee In a deed knew of thé existence of a mortgage at the time of the conveyance, and that the grantor did not know of its existence will not avail the grantor as a defense against his warranty, as the grantee had the right to rely upon the warranty to protect him from the encumbrance.</p>

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

<p>1. Appeal — Question of Fact — Equitable Actions. — In an action to set aside a deed executed by one alleged to have been of unsound mind at the time thereof, where the evidence is such that the mind of this court is left in doubt, the finding of the chancellor will not be disturbed.</p> <p>2. Deeds — Validity—Capacity to Execute. — In an action to set aside a deed for grantor’s alleged want of capacity to execute same, where the evidence is conflicting and the mind of the court is left in doubt, the finding of the chancellor will not be disturbed.</p> <p>3. Witnesses — Weight of Testimony. — In an action to set aside a deed for want of mental capacity upon the part of a grantor, the testimony of witnesses as to mental capacity of the grantor at the time of the execution of the deed nearly fifteen years ago, is apt to be colored by subsequent conditions; and what was then a mere suspicion of unsoundness of mind may have been fortified and enlarged into a confirmed belief, because of after developments in respect of the mental capacity of the grantor.</p>

<p>1. Partnership — Proof—Sufficiency.—Where certain defendants are sued as a partnership, proof that each of them stated that a partnership existed between them, and that one of them made the statement in the presence of all the others, is sufficient proof of partnership to take the case to the jury.</p> <p>2. Contracts — Agreement to Answer for Debt of Another — Statute (Frauds. — Where it is customary, when the sale of tobacco is made in a warehouse, for an inspector to select samples, and for the tobacco to be sold with the guarantee that the samples fairly represent the grade, quality and condition of the tobacco sold, and for reclamation to be allowed where the tobacco proves inferior to the samples, an agreement by the owners of tobacco that if another will make the guarantee and pay such reclamations as may be allowed, they will repay him the sum so paid, is not within the statute of frauds.</p> <p>3. Contracts — Guarantee of Tobacco by Solicitor— Payment of Reclamations — Reimbursement by Owners — Defenses.—Where it is customary at a warehouse to sell tobacco by samples and to guarantee that the samples fairly represent the grade, quality and condition of the tobacco sold, and to allow reclamations if the tobacco sold proves inferior to the samples, and certain owners of tobacco agree with a solicitor that if he will make the guarantee and pay such reclamations as may be allowed they will repay him, and the parties contract solely with reference to the customary inspection and reclamation methods in use, the owners, in an action by the solicitor to recover the sum paid by him, will not be heard to complain that the inspector was not appointed in the manner required by the statute, or that the method of allowing reclamations was unreasonable, if, as a matter of fact, tbe inspector was appointed and tlie inspection made and the reclamations allowed in tlie customary way.</p> <p>4. Contracts — Guarantee of Tobacco by Solicitor — Payment of Reclamations — Notice by Owners Not to Pay — Effect Of. — Where it is customary at a warehouse to sell tobacco by samples and to guarantee that the samples fairly represent the grade, quality and condition of the tobacco sold, and to allow reclamations if the tobacco sold proves inferior to the samples, and certain owners of tobacco agree with a solicitor that if he will make the guarantee and pay such reclamations as may be allowed they will repay him, and he makes the guarantee and pays the reclamations, they cannot escape liability by notifying him before the reclamations are paid not to pay them.</p>

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

<p>t Carriers — Measure of Duty in Regard to the Construction of Racks.- — -It is the duty of a carrier to exercise the highest practicable degree of care in the construction of racks used in passenger cars, so as to make them sufficient for the purpose intended; and if a rack in which a small package is placed is so constructed as that the ordinary movement or oscillation of the car will cause it to fall out of the rack, it is a question for the jury to determine whether or not the carrier exercised the required degree of care in having in its car this character of rack.</p> <p>2. Evidence — Admission of Incompetent Evidence — When Not a 'Ground of Reversal. — A reversal will not be granted by the Appellate •Court because of the introduction of incompetent evidence on the trial in the court below, although such evidence -was prejudicial to the appellant, where the ruling of the court in admitting it wa.s not .made a ground for a new trial.</p> <p>3. Verdict — When It Will Not Be Disturbed. — A verdict .will not be set aside for failure of the trial court to give a peremptory instruction, if there was any evidence authorizing the submission of the case to the jury; nor will the verdict be set aside on the ground that it is flagrantly against the evidence, unless it is apparent from the record on the appeal that it is palpably against the evidence.</p> <p>4. Verdict — When Not Regarded Excessive.- — Although a verdict may at first blush seem out of, proportion to the injury received, yet it will not afford cause for reversal, unless it is, in amount, so grossly excessive as to exceed the bounds of reason, or to appear to have been the result of passion or prejudice on the part of the jury.</p>

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

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

<p>1. Evidence — Photographs—Personal Injuries. — When in an action for personal injuries or other action of tort or in criminal prosecutions, it becomes material to know the location, surroundings, and condition of the premises upon which the accident, injury, or crime in controversy occurred, photographs of the location, if verified by proof that they are true representations, are compe-’ tent evidence.</p> <p>2. Evidence — Photogaphs—Rule as to Use of. — While a picture produced by an X-ray cannot be verified as a true representation of the subject in the same way that a picture made by a camera can be, the rule in regard to the use of ordinary photographs on the trial of a cause applies to photographs of the internal structure and condition of the human body taken by the aid of X-rays, when verified by proof that they are true representations.</p> <p>■3. Evidence — 'Photographs—-Admissibility.—Where a witness testified that he took an X-ray photograph of a broken arm, and failed to testify that it accurately showed what he saw, or that it accurately represented the condition of the arm, the photograph was not admissible in evidence.</p>

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

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

<p>1. Land — Holding by Testamentary Trustee for Lives of Two Beneficiaries — Wills.—Where a testamentary trustee holds lands in trust under the terms of a will for the lives of two beneficiaries, with remainder over to a class of persons who cannot be ascertained until the death of the survivor of the two life tenants, it is within the power of a Chancellor under the provisions of Sec. 498 of the Civil Code to approve the sale by the trustee and re-invest the proceeds.</p> <p>2. Wills — Sale and Re-investment and Proceeds of Land by Trustee — Section 498 Civil Code. — A provision in a will empowering the trustee nanied therein to sell and convey the real estate in his discretion, but withholding such power from any subsequent trustee, will not be construed as forbidding a sale by the Chancellor for re'-investment under Section 498 after another trustee has qualified.</p> <p>3. Land — Held in Trust for Life of Another — Section 498 Civil Code. — While the language of Sec. 498 only authorizes the Court to sell “when lands are held in trust by one person for the life of another” — that language will be construed to embrace the plural as well as .the singular, and to apply where a trustee holds lands in trust for the lives of two persons.</p>

<p>Instructions — Street Railroads — Ordinary Care. — An instruction telling the jury that the intestate was required to use ordinary care, was not prejudicial because it omitted the qualification considering his age, capacity and intelligence; where he was 17 years old, weighed 150 pounds, was a bright intelligent boy, and was hilled by running in front of a street car, a danger he well understood.</p>

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

<p>1. Criminal Law — Appeal—Time to Perfect. — Where one was convicted of the offense of petit larceny and sentenced to twelve months’ imprisonment in jail on May 23, 1911; and the next day filed motion for new trial which was overruled June 3, 1911, his right of appeal then became fixed and he cannot obtain a review of said trial and conviction by appealing from an order entered Sept. 11, 1913, remanding the prisoner to jail to serve out his sentence which had been suspended by the court at the time the motion for new trial was overruled on June 3, 1911.</p> <p>2. Criminal Law — Suspension by Court of Execution of Sentence Imposed. — Where one was convicted of the offense of petty larceny and sentenced to twelve months’ confinement in the county jail, the circuit court, after overruling motion for new trial, was without jurisdiction to enter an order suspending further execution of the sentence imposed during the good behavior of defendant.</p> <p>• 3. Officers — Jailer—Duty With Respect to Persons Placed in His Custody. — The jailer is an officer of the Commonwealth and when a prisoner is placed in his custody under final order of a court, it is the duty of the jailer to retain him in custody until the sentence has been served; and he should refuse to obey a void order of court suspending further execution of .the sentence imposed.</p>

<p>1. Carriers — Carriers of Passengers — Termination of Relation.— When the relation of carrier and passenger is once established, it continues until the passenger has alighted from the train, and has had a reasonable time to leave the premises, unless he he detained by the further necessity of relation with the servante of the carrier. But this rule will not he construed so as to include within its operation one who was drinking intoxicants and flourishing a revolver on a passenger train, and who after arrival at the point of destination alighted from the train, and walked across a side track to a point prohahly 25 or 30 feet from the train, placed his luggage down, and then Went back to the train for the purpose • of recovering from the conductor the revolver which said passenger had so flourished and which the conductor had taken from him, and which weapon the conductor had informed the passenger would he turned over to the sheriff, iln such case the carrier is not liable for injuries received by the former passenger, for it had at the time no connection or privity with him.</p> <p>2. Carriers — Passengers—Conductors of Passenger Trains — Powers and Duties.' — In Kentucky, the conductors of passenger trains occupy a peculiar position. In addition to the duty which they owe to the carrier, they also owe a duty to the Commonwealth, imposed upon them by express statutory enactment; and that duty is one not imposed on other citizens. And in the discharge of the imposed duty no reasonable presumption will he denied in favor of the bona fides of a conductor’s acts in respect thereof.</p>

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

<p>Taxation — Life Tenant — Remainderman.—After property Las come . into the hands of remaindermen it cannot he subjected to the payment of taxes that accrued against the life tenant more than five years betore the institution of the action against the remaindermen to recover the tax.</p>

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

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

<p>1. Railroads — Trespassers—When Cannot Recover for Accident.— It being unlawful under the statute, for any person other than a passenger or employee to get on or off cars while in motion, a trespasser swinging off a moving train voluntarily, and so getting his foot into an unblocked frog in the street, cannot recover where the accident would not have occurred, but for his violation of the statute.</p> <p>2. Railroads — Trespassers—When May Recover. — But if he was forced from the train by the railroad authorities or any of them, he may recover if his injury was due to his being forced from the moving train, or to the dangerous condition of the street by reason of the frog or both combined.</p> <p>3. Railroads — Liability of Lessor of Track for Injury Done One of Public. — 'The lessor of a railroad track is bound jointly with the lessee for any injury done one of the public.</p> <p>4. Railroads — Unblocked Frogs — Section 780, Kentucky Statutes.— Section 780, Kentucky Statutes, as to unblocked frogs is for the protection of employees and affects in no way the liability of a railroad company for an unsafe condition of the street in which the tracks are laid..</p> <p>5. Railroads — Verdict in Favor of Lessee — Not Bar to Action Against Lessor. — A verdict and judgment in favor of the lessee is no bar to a prosecution of the action against the lessor although sued jointly.</p>

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

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

<p>1. Judgment — Based on Erroneous Ground — Will Be Affirmed if Authorized on a Different Ground. — Although, upon appeal, the judgment of the circuit court be discovered to have been based on an erroneous ground, it will nevertheless be affirmed, if upon a review of the entire record, the appellate court should be ot opinion that the judgment would have been authorized on a different ground.</p> <p>2. Deeds — Effect of Covenant of General Warranty in Deed as Against Claimant of the Land Under Deed of Gift From the Grantor. — Where a vendor conveys, with covenant of general warranty, a greater interest in land than he possesses, and thereafter a claimant of the land who has received any estate by gift, advancement, descent, devise or distribution from the vendor, attempts to recover the land from the vendee, he will be barred of recovery to the extent of the value of the estate so received.</p> <p>3. Deeds — Application in Such Case of Sections 2351-2352 Kentocky Statutes. — Under these statutes it is not material whether the conveyance by the vendor be before or after the claimant of the estate so conveyed has reecived from the vendor property by gift, advancement, devise, descent or distribution. The statute does not make any distinction concerning the rights or liabilities of the parties depending o"n the time when the conveyance was made, or the estate received by gift or advancement.</p>

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

<p>Appeal — Finding of Chancellor — Conflicting Evidence. — Where the evidence in an equitable action is conflicting, and upon the consideration of the whole case the mind is left in doubt, the finding of the chancellor will not be disturbed,</p>

<p>1. Game and Birds — Exposing for Sale — Construction of Statute. — • Under Sec. 1951 of the statute any person exposing for sale within the prohibited season birds or game protected by the statute violates the statute without reference to- whether the birds or game so killed were caught in this state or out of it.</p> <p>2. Game and Birds — Exposing for Sale — Application of Words — Hotel Keeper — The words “exposing for sale” in the game -and bird statute apply to a hotel or restaurant keeper who serves prohibited game or birds to his guests within the prohibited season.</p> <p>3. Criminal Law — Indictment—Statutory Offense. — When the statute describes an offense in such a manner that it is only necessary that the indictment should follow the statute if a pleader incorporates in the indictment words not found in the statute and that are not necessary to describe or constitute the offense, it is not necessary that the Commonwealth should sustain by evidence these unnecessary averments. They will be treated as surplusage.</p> <p>4. Criminal Law — Indictment for Exposing Game or Birds for Sale ■ — Evidence.—An indictment under Section 1951 for unlawfully exposing game or birds for sale need only charge, after describing the game or birds so exposed, that they were -prohibited game or birds and exposed for sale within the prohibited time, and to sustain a conviction it is only necessary that the averments of the indictment should be proved.</p> <p>5. Criminal Law — Principals in Misdemeanors — 'Separate Indictment Against Bach. — All persons engaged in the commission of misdemeanors are principals, and there may be under a separate or a joint indictment a conviction against each.</p> <p>6. Corporations — Liability for Misdemeanor — jManager of Corporation. — Where a corporation violates a penal statute, it may be punished under this statute, and the manager of the corporation who participates in the unlawful act may likewise be prosecuted and punished.</p> <p>7. Witnesses — Privilege of When Evidence Might Incriminate Him. —A witness cannot be required to give evidence that might incriminate him, and this privilege is not confined to a defendant in a criminal prosecution but it extends to every witness in every case, both civil and criminal, and protects him in every court in which he may be giving evidence either in his own behalf or in behalf of some other person.</p> <p>8. Witnesses — Privilege of When Evidence Might Incriminate Him. —The .privilege is a personal one that the witness may waive, but the court should, when it appears that the witness does not understand his privilege, admonish the witness who is asked a question, the answer to which might incriminate him, that he need not answer it unless he chooses to do so.</p> <p>9. Witnesses — Privilege of When Evidence Might Incriminate Him. —The privilege does not belong exclusively to the witness, and it is for the court to determine when the question is raised, whether the witness shall answer the question or not, and if it appears that no prosecution against the witness can be based on his evidence, as when the offense is barred by time, the court should require him to answer.</p> <p>10. Witnesses — Privilege of When Evidence Might Incriminate Him —Testimony on Former Trial. — A witness is not estopped by his previous statements voluntarily made, either in court or out of it, from claiming his privilege when introduced as a witness. The privilege attaches to the witness in each particular case, and whether he may claim it or not is to be determined without reference to what he said in testifying on some other trial or on a former trial of the same case, and without reference to his declarations made at some other time or place.</p>

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

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

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

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

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

<p>1. Party Wlalls. — A wall may be a party wall as to a portion of its height, and cease to be a party for the rest of its height.</p> <p>2. Easements — Implied Grant of. — Where one conveys a part of his estate, he impliedly grants all those' apparent or visible easements upon the part retained which were at the time used by the grantor for the benefit of the part conveyed, and which are reasonably necessary for the use of that part.</p> <p>3. Easements — Merger of Separate Properties — May End Easement. —Where two persons jointly owned two adjoining lots, and the building upon one lot, and subsequently bought the building upon the adjoining lot, there was no such merger of two separately owned properties into a single ownership that would put an end to an easement attached to the last named building,. by which it had the right to use the wall of the first named building. '</p> <p>4. Easements. — Easement by Implication — Use of Limited to. Original Use. — Where the right of the owner of a building to use the wall of an adjoining building arises by implication only, the owner of the easement has no right to use the wall of the other building in a new or different manner from the old use; the grant toy; implication is to be limited substantially to the existing use.</p>

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

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

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

<p>Contracts — Statute of Frauds. — An agreement in writing signed by the -party to be charged, by which the owner of land agrees to carry out a certain oral lease for a year beginning some months after the date of the writing, is a contract not to be performed within a year, and is not sufficient under the statute of frauds when it does not contain the terms of the oral contract which is to be carried out.</p>

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

<p>1. Statutes — /Construction.—'Generally the purpose of a proviso in a statute is to except something out of or put some limitation upon the general terms employed therein, although it is sometimes interpreted as placing a condition upon the previous provisions of the Act; but whether it is used in the one sense or the other must be determined from the context and general purpose of the statute.</p> <p>2. Insurance, Indemnity — Foreign Insuranpe ¡Companies — Sections 687 and 693, Kentucky Statutes. — The requirement of section 693, Kentucky Statutes, that all foreign insurance companies doing business in this State shall have $150,000 paid-up stock when construed in connection with the proviso thereto, that a company undertaking to do certain kinds of insurance named in the second clause of section 687 may do so by making the deposits therein required, means to except out of the general provisions of section 693 the companies doing that class of insurance, and the requirement as to the $150,000 paid-up stock does not apply to such companies.</p> <p>3. Corporations — 'Foreign Company Not Authorized to Transact Business Under More Favorable Conditions than Domestic Company. — Under the provisions of section 202 of our cohstitution; no foreign company can 'be authorized to transact business under more favorable conditions than domestic companies.</p>

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

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

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

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

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

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

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

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

<p>1. Trial — Continuance.—Where a case is assigned for trial on the Thursday of the second week of the term of court for thei purpose of giving non-resident witnesses and plaintiff’s attorney, who lives in another county; an opportunity to be present at the trial, it is not an abuse of discretion to refuse a continuance on the ground that on the previous Saturday the court discharged its regular jury panel, and defendant, believing that no further jury trials were to be had, left the State. ,</p> <p>2. Bills and Notes — Fraud—Evidence.—To prove fraud in the execution or collusion in the negotiation of a note, the mere opinion of a witness that the note was obtained by fraud or that the negotiation was collusive is not sufficient; it is necessary to state facts 'which if true would constitute fraud and collusion.</p> <p>3. Bills and Notes — Section 483, Kentucky Statutes. — Section 483, Kentucky Statutes, placing on the footing of a bill of exchange only such notes as are payable and negotiable at and endorsed to and discounted by a bank in this Commonwealth^ is repealed by the Negotiable Instrument Act.</p> <p>4. Bills and Notes — Holder in Due Course — Evidence—Peremptory. —In an action on a note, evidence examined, and held as a matter of law that plaintiff was a holder in due course.</p> <p>6. Trial — Jury—Empanelling—Failure to Follow Statute — (When Error. — A party cannot complain of the fact that the jury was not properly summoned when his evidence presents no defense, and the other party is as a matter of law entitled to a peremptory instruction.</p>

<p>1. Insurance, Accident — 'Construction of Policy. — In a case of doubt, the language of an insurance policy will be construed in favor of the insured, and a doubtful clause in one part of the policy will not be held to limit an express provision in another part of it.</p> <p>2. Insurance^ Accident — Construction of Policy. — An accident policy providing for the payment of a death loss and in addition, disability benefits for ninety days, a subsequent clause providing that the right to make a claim under the policy shall (bar the right to make any other claim, will be read as referring to other provisions of the policy for the payment of benefits.</p> <p>3. Insurance, Accident — Accident 'Resulting in Peritonitis — 'Liability. —An accident resulting in a ruptured colon, which caused infection resulting in peritonitis from which the insured died, the company is liable for his death under a provision exempting it for liability for death from peritonitis, unless due to infection, the immediate result of an accident.</p> <p>4. Insurance, Accident — Verdict of Coroner’s Jury Not Competent Evidence in Suit on Policy. — The verdict of a jury at a coroner’s inquest is not competent evidence in a suit on an insurance policy.</p>

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

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

<p>1. Master and Servant — Assumed Risk. — When an experienced and capable servant voluntarily and without any orders or directions from the master needlessly exposes himself to great danger, he take» the risk of any accident that may happen.</p> <p>2. Master and Servant — Safe and Unsafe Way To Do Work.— When there is a safe and an unsafe way in which a servant may-do the work which he is engaged to do, and he voluntarily and knowingly adopts the unsafe way and is injured as a consequence thereof, the master will not be liable.</p>

<p>New Trial — Surprise.—It is only in rare cases that a new trial will be granted on tbe ground that a witness for the party asking the new trial gave testimony differing from what Ihe said before the trial his evidence would be.</p>

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

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

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

<p>1. 'Criminal Law — Selection of Jury from Another County — Action of Circuit Judge in Furnishing List from Another County Not Proper, but Not Beviewable. — The action of the circuit judge in furnishing a list of jurors residing in another county to the sheriff, with instructions to summon them as jurors, was not proper; but this action is not reviewable under Section 281 of the Criminal Code, which denies to this court the right to review the action of the trial court in the formation of the jury.</p> <p>2. Criminal Law — 'Section 281; Criminal Code — Not Abridgment of Defendant’s Privileges. — Section 281 of the Criminal Code which prohibits this court from reviewing the action of the trial judge in the formation of a jury does not deny the defendant the equal protection of the laws guaranteed by the Fourteenth Amendment of the Federal Constitution, or abridge any of his privileges or immunities as a citizen of the United States.</p> <p>3.. Criminal Law — “Sweating” Act of 1912 — Confessions.—The Act of 1912 denouncing the “sweating” of witnesses and excluding confessions so obtained, has no application to a voluntary confession not made under threats or by other wrongful means; a voluntary confession is competent evidence-.</p> <p>4. Criminal Law — ¡Accomplices—Uncorroborated. Testimony of— Confessions. — The uncorroborated testimony of an accomplice is wholly insufficient to convict the accused of a crime, or of any of its constituent elements, or to render admissible any confessions or admissions of the parties which depend upon and must be preceded by evidence of a conspiracy, unless- other evidence besides that of the accomplice is produced tending to prove a conspiracy, and connecting the accused therewith; and evidence merely showing that the offense was committed and the circumstances thereof, is -as insufficient for that purpose as it would be to connect the accused with the commission of the offense Itself.</p> <p>¡5. Criminal Law — Accomplices—Whether one is an Accomplice Must be Ascertained by Evidence. — The fact that one is indicted for an offense does not make him an accomplice within the rule of evidence that requires an accomplice to be corroborated; whether one is an accomplice is a fact which, libe any' other fact, is to be ascertained from the evidence.</p> <p>6-. -Criminal Law — New Trial — Newly Discovered Evidence. — ¡The •ruling of the trial judge in refusing to grant a new trial on account of newly discovered evidence which, at most would only have discredited a witness for the prosecution upon a collateral question, will not be reversed, particularly when there is ample testimony from other witnesses to sustain the verdict.</p> <p>7. Criminal Law — Appeal—Section 340 Criminal Code. — Under section 340 of the Criminal Code, the Court of Appeals is not authorized to reverse a judgment of conviction for error of law, .unless, upon a consideration of the whole case, it is satisfied that the substantial rights of the defendant have been prejudiced thereby.</p>

<p>1. New Trial — Grounds—Inadequacy of Damages — Civil Code, Section 341. — (Section 341 of tbe Civil Code of Practice, providing that a new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, or in any other action in which the damages equal the actual pecuniary injury sustained, does not apply to actual pecuniary damages resulting directly from a wrong, which are capable of being measured, such as special damages for lost time, medical bills, etc., but where such damages are alleged and proved, and the damages allowed by the jury are wholly inadequate, a new trial 'will be granted.</p> <p>2. New Trial — Grounds—Inadequacy or Damages — Civil Code, Section 341. — "Where no items of special damages are alleged and iproved, but a recovery is sought for general damages, such as mental and physical suffering and permanent impairment of power to earn money, Section 341 of the Civil Code applies with full force, and a new trial will not be granted on account of the smallness of the damages.</p> <p>3. Damages — Personal Injuries — Instructions.—An instruction authorizing a .finding in favor of the defendant in case the jury believe certain facts exist is erroneous though not prejudicial, where there is a finding in favor of plaintiff.</p>

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

<p>1. Street Railroads — Injury to Passenger — Burden of Proof. — Where a passenger on a street car sues to recover damages for injuries sustained by being thrown from the car on account of a sudden jerk or lurch, the burden is on him to show that there was some unusual and unnecessary movement of the car that caused him to fall.</p> <p>2. Street Railroads — Evidence of Unnecessary Jerk Causing Passenger to Fall from Car. — The fact that a passenger who is exercising ordinary care for his own safety is thrown from the platform of a street car by a sudden lurch or jerk of the car, is sufficient to justify the fair and reasonable inference that the jerking of the car was both unusual and unnecessary. It is sufficient to entitle him to go to the jury if he can state that while exercising reasonable care for his own safety, he was thrown from it by a jerk or lurch in the operation of the car.</p> <p>3. Street Railroads — Right of Passengers to Ride on Platform and Prepare to Leave Car Before it 'Stops. — A passenger, in the exercise of reasonable care for his own safety, may stand on the platform of a street car while it is running and may make preparations to leave the car before it stops at the place of his destination by going from the interior of the car to the platform without being guilty of negligence.</p> <p>4. Street' Railroads — Negligence in Operation of Car — Jerks and Lurches. — A passenger can only .recover damages on account of jerks or lurches of a car when they are both unnecessary and unusual and of sufficient violence to cause the injury complained of.</p>

<p>1. Homicide — Evidence—Submission to Jury. — Under an indictment for murder, there being proof authorizing the jury to conclude that the defendant shot the deceased who was a peacemaker because he was preventing him from shooting another with whom he was engaged in a difficulty, the court properly submitted to the jury the question of murder.</p> <p>2. Homicide — When One May Kill Another to Rid Himself of Trespass. — Á person may not kill another to rid himself of a trespass to his person, or prevent the taking of a pistol from him, unless he was then and there in danger of death or great bodily harm.</p> <p>3. Homicide. — Life may not be taken by the defendant unless he has no other safe means of averting the impending danger.</p> <p>4. Homicide — Instruction — Use of Words Without Felonious Malice. — The defendant was not prejudiced by an instruction which used the words “without felonious malice” instead of the words “without previous malice.”</p> <p>5. Trial — Exceptions.—The ruling of the court on a challenge for cause is not subject to exception.</p> <p>6. Homicide — Statement of Defendant May be Shown by Rebuttal — ■ Admonition. — Statements made by the defendant as to hoiw the homicide occurred inconsistent with his testimony on the trial may be shown in rebuttal, the court admonishing the jury that such evidence only goes to his credibility as a witness.</p>

<p>1. Homestead — Right of Widow to — Abandonment.—Under Section 1707 of the Kentucky Sttatutes the widow is only entitled to a -homestead as long as she occupies the same by herself or tenant, and she may forfeit .the homestead right by selling it or by abandonment.</p> <p>2. Homestead — Infant Widow.- — The mere abandonment by an infant widow of the occupancy of her homestead either by herself' or tenant does not operate to deny her the right, on or before arriving at age, to assert her right to a homestead.</p> <p>3. Homestead — Abandonment—Acts that Evidence. — The abandonment by a widow of her homestead may be shown by her acts and conduct independent of any writing. The fact of abandonment may be shown by parol evidence.</p> <p>4. Homestead — Infant Widow Removing to Another State — Acts of Abandonment. — Where an infant widow, who was entitled to a homestead, removed to another Sate and when she became of age by the laws of that State, although under twenty-one, sold her homestead right, this act, in connection with the fact that she had never occupied the premises as a homestead, worked an abandonment of it, and after she became twenty-one she could not assert her right to a homestead.</p>

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

<p>1. Municipal Corporations — Police Power — License Fees Upon Automobiles. — A municipal corporation may, under its police power, impose upon automobiles a license fee sufficient to cover the cost of issuing the license, and of exercising a supervisory regulation over the subjects thereof.</p> <p>2. Municipal (Corporations — Taxation—Power to Tax Automobiles Not Used or iLet For Hire. — A municipal corporation of the third class cannot under Section 3290, sub-section 10, impose a license for revenue purposes upon automobiles not used or let for hire. The Statute in question is limited by Section 181 of the Constitution ; and as such a tax would not be an occupation tax, it could not be upheld under the Statute in question.</p>

<p>1. Adverse Possession — Entry Upon Land Under Verbal Gift.— One wbo enters upon land under a verbal gift claiming it as his own adversely to all the world, holds adversely to the donor and if his possession continues for fifteen years cannot he dispossessed.</p> <p>1. 'Limitation — When Statute Runs Against Infant. — If the Statute begins to run against the ancestor, it continues to run against the heir although an infant.</p>

<p>1. Principal and Surety — Receivers.—The surety in the first bond of a receiver is not entitled to have payments made by the receiver during the term of his second bond applied to the oldest items in the account, the receiver’s default having in fact occurred during his first term and he having in fact paid out less during his second term than he collected during that term or should have collected.</p> <p>2. Principal and Surety — 'Receivers—Cause of Action Against. — The cause of action against the surety accrues when the cause of action accrues against the principal, and in the case of a receiver the cause of action does not accrue until the receiver is ordered to pay over the money in his hands.</p>

<p>1. Infants — Voidable Judgment — Not Subject to Collateral Attack. — . It is a twell recognized rule that where the court rendering a judgment has jurisdiction of the subject matter of the action and o£ the parties, the judgment, although irregular or erroneous, is conclusive so long as it is unreversed, and cannot be collaterally attacked; and this rule applies to a judgment affecting infants as well as adults.</p> <p>2. Judgment Based on Incompetent Evidence — When Infant Bound By. — Although a judgment affecting the rights of an infant, may ¡have been based wholly on the evidence of one incompetent to testify against the .infant; neither that fact nor the further fact that such incompetent evidence would have compelled the reversal of the judgment on appeal,' rendered the judgment void, or makes it subject to collateral attack.</p> <p>3. Process — How Served on Infant Under 14. — 'Summons against an Infant under 14 years of age, must ¡be served on bis father, or if he have no father; on his guardian; or, if he have no guardian, on his mother; or, if he have no mother, on the person having charge of him. But if any of the parties mentioned, upon whom the service for the infant must he had, is a ¡plaintiff in the action, the summons in that event must he- served on the guardian ad litem of the infant, who shall be appointed by the clerk of the court for that purpose. Service of summons on the father for the infant under 14, if the father be a defendant, •will be valid, although his interest in the subject matter of the action is antagonistic to that of the infant. It is only where the party upon whom, summons is required to he served for the infant is a plaintiff, that service of the summons must be on the guardian ad litem for the infant.</p>

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

<p>1. Contracts — Refunding Fee for Sale of Farm — Consideration.— Where the owner of a farm sold it at a reduced price and paid the agent a fee of $600.00, with the understanding that the fee should be refunded to the owner in case hd re-invested his money in another farm bought through the agent who had sold the first farm, a valid consideration existed for the agreement to refund the $600.00</p> <p>2. Evidence — Question for Jury. — Where the proof upon an issue of fact is contradictory, it is for the jury to decide the issue.</p> <p>3. Instructions — Issue Not Made t>y Pleadings. — ¡The trial court should not instruct upon an issue not made hy the pleadings.</p>

<p>1. Appeal.- — Under section 950 of the Kentucky Statutes, no appeal can be taken to the Court of Appeals from a money judgment for less than $200.00, exclusive of interest and cost.</p> <p>2. Appeal — When No Provision in .Statutes Forbidding. — Where no judgment for money or personal property is given or sought, and there is no provision in the statutes forbidding the appeal, it will be entertained.</p> <p>3. Appeal — Jurisdiction—What Does Not Confer. — The fact that the validity of an Act of the Legislature, or the validity of an order of the fiscal court, or of a fine of less than $200.00 is imposed or involved, does not confer jurisdiction upon this court.</p> <p>4. Appeal — License Tax — -Amount in Controversy. — No appeal lies to this, court from the judgment of a circuit court for $10.00' license tax; it is the amount in controversy, under a money recovery, and not the nature of the cause of action, that governs the right of appeal.</p>

<p>.Appeal from Jefferson Circuit Court (Common Pleas Branch, No. 3),</p>

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

<p>1. Insurance, Fire — Parol Contract — Renewal—Authority of Agent. —An. insurance agent having authority to solicit insurance, accept risks, agree upon and settle the terms of insurance, and issue and renew policies, has authority to make a preliminary parol contract binding on his principal, either to issue or renew a policy about to expire.</p> <p>2. Insurance, Fire — Renewal—Parol Contract — Sufficiency.—(Where the agent of two insurance companies carrying insurance on certain buildings meets the insured and asks him to take out _ additional insurance, and the insured declines to do so, but says to the agent, “You may carry the two policies you are now carrying,” and the agent replies, “Certainly. I don’t want to lose what I’ve got if I can’t get any more,” the language of the parties is too vague, uncertain and indefinite to constitute a binding executory agreement to renew.</p> <p>S. Insurance, Fire — Custom to Renew — Effect.—While a custom on the part of an agent to renew policies and credit the insured for the premium is admissible on the question of waiver of prepayment of premiums, it is not sufficient to bind the company. There must be a contract to renew.</p>

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

<p>1. Bills and Notes — Note Payable to Cashier — Parties.—Where a bank discounts a note payable to its cashier, it may sue thereon in its own name, even though the note be not negotiable.</p> <p>2. Bills and Notes — Note Payable to Cashier — Parties.—In an action by a bank on a note payable to its cashier and not endorsed or assigned by him, the failure to make the cashier a ■party is not prejudicial to the maker where the cashier testified that the note was discounted by the bank, as this fact will thereafter estop him from asserting any interest in the note.</p> <p>3. Bills and Notes — Failure to Apply Deposit to Payment of Note— Release of Surety — Evidence.—Evidence of the failure of a bank to apply a deposit of the maker to the extinguishment of a note is properly rejected where there is no effort to show that the deposits were on hand at the maturity of the note, or that they were not specifically appropriated to some other purpose.</p> <p>4. Bills and Notes — Surety—-Release—Evidence—Sufficiency.—In an action on a note, where one of the makers defended on the ground that he was a surety and was released because the time of payment was extended for a valuable consideration without his knowledge or consent, and that certain collateral was also released, evidence examined and held sufficient to sustain a finding in favor of plaintiff.</p>

<p>Judgment — Judgment of Chancellor. — -Where the evidence relating to disputed questions of fact is conflicting, the judgment of the chancellor will not be disturbed.</p>

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

<p>Appeal — Appeal to United States Supreme Court — 'Mistake in Transcript — How Corrected. — When a case is decided in this court and an appeal is taken to the United States Supreme Court, and while the case is pending in that court, a mistake in the transcript is discovered which was not discovered in this court, it may he corrected by motion in this court in the same manner as if discovered before the decision of the case in this court, the error not having affected the decision of the case ia this court.</p>

<p>1. Estoppel — Foundation of Doctrine of. — The doctrine of estoppel has its foundation in the necessity of compelling the observance of good faith; but a man cannot be prevented by his conduct from asserting a previous right, unless the assertion would be an act of bad faith towards a person who had subsequently acquired the right.</p> <p>2. Mortgages — Equitable Estoppel — Waiver of Lien by Mortgagee. — ■ A mortgage t»f personal property, duly recorded, should not be lightly annulled; and while we recognize that under the doctrine of equitable estoppel a mortgagee of personal property may release or waive his lien, it should never be done unless the evidence thereof be clear, full and satisfactory.</p> <p>3. Estoppel — Elements Constituting. — Two of the elements necessary to constitute an estoppel are, (1) that the party to whom the statement was made must have been without knowledge or the means of knowledge of the real facts, and (2) the party to whom the representation was made must have relied on and acted upon it.</p> <p>4. Mortgages — When Mortgage Not Released. — Where the purchaser of a mortgaged thresher paid his purchase money to his vendor with knowledge of all the facts concerning his vendor’s solvency, and without relying upon the representation of the mortgagee upon that subject, the mortgage was not released.</p>

<p>Master and Servant — Appliances—Personal Injuries — Question for Jury. — A servant who continues at work on a burry job, upon tbe order of the' master who promises to give him a better tool, may recover for an injury received by reason of the defective tool if the danger was not so imminent that a person of ordinary prudence would not have continued at work; and this is a question for the jury ordinarily upon all the facts.</p>

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

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

<p>1. Execution — Sale of Land Under — Not Valid as to a Subsequent Purchaser for Value Without Notice. — As between a purchaser of land at its sale under an execution and a subsequent purchaser for value of the same land by deed from the owner before the purchaser at the execution sale obtained a conveyance from the sheriff, the title of the subsequent purchaser will prevail, if, at the time of his purchase and the conveyance to him of the land, he had no notice of its previous sale under the execution to the first purchaser. In such case whatever right was acquired by the purchaser at the execution sale, was lost by the failure on his part, or that of the plaintiff in the execution, to cause to be recorded in the County Clerk’s office the memorandum of such execution sale as required by Section 2358-a, subsection 2, Ky. Stats.</p> <p>2. Land — Parol Partition of — When Binding Between the Parties. — • A parol partition of land, followed by the actual, adverse possession of the shares by the respective parties for fifteen years, is conclusive of the right of each to the portion received by him in the division.</p> <p>3. Agency — Not Competent to Establish by Declarations of Agent. — ■ It is a well settled rule of the law, that an agency cannot be established by the testimony of the alleged agent alone.</p>

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

<p>1. Master and Servant — When 'Servant Cannot Recover. — A servant who falls into a pit in a railroad shop where he has been engaged for some time cannot recover of the master for his injury, when he has continued in the service without complaint with knowledge of the pit and its condition.</p> <p>2. Assumption of Risk — Interstate Commerce Act. — The Interstate Commerce Act does not change the rule as to assumed risks except as to those appliances which it requires to be maintained.</p>

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

<p>Employers’ Liability Act — No Recovery for Death Unless Deceased Left Kin. — Under the Federal Employers’ Liability Act where a person employed in interstate commerce by a carrier engaged in such commerce is killed by the negligence of the carrier while so engaged, a cause of action to recover damages for his death arises, but the carrier is only liable for such damages in the event the deceased left kin surviving him.</p>

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

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

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

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

<p>1. Criminal Law — Embezzlement—Indictment—Sufficiency.—An indictment for embezzlement which alleges “and which said money being thus appropriated had been collected by the defendant for and on behalf of the Owensboro Home Telephone & Telegraph Company, and which said money came to the hands of said defendant as an employee of said corporation, and which said money was entrusted by said corporation to said defendant, who was a servant in the employ of said corporation at the time,” sufficiently alleges ownership by the corporation of the money embezzled.</p> <p>2. Criminal Law — Indictment—Bill of Particulars — Motion to Specify Dates — Motion to Elect — Error.—Where on a prosecution for embezzlement of an aggregate sum of money, composed of several items misappropriated at various times, a hill of particulars is filed, the refusal of the trial court to require the Commonwealth to specify the dates on which the various sums were misappropriated, or to require the Commonwealth to elect as to which offense it will prosecute, is not prejudicial where the defendant admits having collected and appropriated to his own use each of the items of money set forth in the bill of particulars, and his only defense is that at the time he misappropriated the money he intended to restore it.</p> <p>3. Embezzlement — Criminal Intent — Intention to Restore. — While to constitute embezzlement it is necessary that there (be a criminal intent, yet where the money of the principal is knowingly used by the agent in violation of his duty, it is none the less embezzlement because at the time he intended to restore it.</p> <p>4. Criminal Law — Evidence—(Proof of Incorporation. — On a trial for embezzlement, proof of incorporation may he shown by parol.</p> <p>5. Criminal Law^ — Embezzlement—Venue.—On a prosecution for embezzlement, evidence considered, and held that the venue of the offense was properly proved.</p>

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

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

<p>1. Insurance, Accident — Estoppel, Waiver, or Agreement Affecting Right to Avoid or Forfeit Policy — Insertion of False Answers In Application by Agent. — The rule in this State is that where an insurance agent with full knowledge of the facts, writes in the application answers which, are untrue, or so incomplete, or so worded as to create a false impression, the company is estopped, in the absence of fraud on the part of the insured, from asserting or relying upon such misrepresentations.</p> <p>2. Insurance, Accident — Actions on Policies — Admissibility of Evidence. — In an action on an accident policy, where the defense is based partly on the claim of an alleged tubercular infection existing at the time of and long 'before the injury, it was error to permit a physician who had caused an examination to be made of pus from an abscess on insured’s body, to state what the report was concerning the germs found in such pus, such evidence being purely hearsay.</p>

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

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

<p>1. Roads — Act of 1912 by Which. Road Overseer Abolished. — Under the act of 1912, the office or road overseer is abolished, and where a county maintains its dirt roads by working the hands upon them, this under the act must be done under the charge of the county road engineer; the county court is no longer authorized to appoint road overseers to perform this duty.</p> <p>2. Statutes — Construction.—One section of a statute will not be construed as nullifying another section of the same act if both sections can be given a reasonable construction under which both can be sustained.</p>

<p>1. Master and Servant — Negligence—Ordinary Care — Question for Jury. — A servant who is injured by reason of the negligence of the master in failing to furnish him a reasonably safe appliance to work with, where he has continued in the service upon the promise of the master to remove the trouble, may recover for his injury unless he failed to use ordinary care for his own safety and this ordinarily is a question for the jury.</p> <p>2. Master and Servant — Ordinary Care — Question for Jury. — A servant who was running a piece of lumber through a saw on being called as he supposed by the foreman, looked around to see what was wanted, and when he did this, by reason of the saw not being in proper condition, his hand was jerked into the saw. Held: that it is a question for the jury whether his injury was by reason of his own want of ordinary care.</p>

<p>1. Mortgages — Where Mortgage of Personalty to Be Recorded. — A mortgage of personalty, to be effectual against purchasers without notice, or creditors, must he recorded in the county of the residence of the owner thereof, that county being, in legal contemplation, the situs of the mortgaged property.</p> <p>2. Residence — Married Man With Family. — The place where the family of a married man resides, is generally to be considered his residence, unless the family so resides for a temporary purpose; and if his family is permanently in one place, and he transacts his business in another, the former place is his residence.</p> <p>3. Residence. — Where a life insurance solicitor and his wife boarded in Louisville, paying a monthly board, and he spent most of his time in Shelbyville and adjoining counties soliciting business, and returned to Louisville to spend the wa'^-end with his family, he was a resident of Louisville.</p> <p>4. Mortgages — Rights of Mortgagee — -Residence of Mortgagor. — The rights of a mortgagee of personal property do not depend upon the recitals or representations of the mortgagor as to his residence, hut upon the fact of such residence, and the actual residence of the anorgagor controls the place of recording; otherwise the object of the statute requiring the record to be made in the county of the mortgagor’s residence, would be frustrated by the mere act of the parties, to the injury of those whose rights were intended to be protected.</p>

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

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

<p>Contracts — Broker—Action for Commissions — Verdict— Evidence. —In an action by a broker to recover commissions alleged to be due under a contract of employment by which he was to render certain services in connection with the purchase of tobacco, evidence examined and held to sustain a finding in favor of the plaintiff.</p>

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

<p>1. Wills — Construction, of — Dying without Issue. — Where there is a devise of property to one, with provision that if he die without issue, it shall go to others, these words will he construed not to refer to a failure of issue at any time, hut to the failure of issue at some period, if there is any such named in the will, to which it may he referred,' and the will is susceptible of this construction without doing violence to the intention of the testator.</p> <p>2. Wills — Construction of — Dying without Issue. — Where a testator devised his estate to his son for life, and after his death to his widow for life, with remainder to his grandson, and then provided that if his grandson should die without children after his son, the estate devised to him should go to the other children of -the testator, the grandson toot the fee when he came into the possession of the estate upon the death of his mother who survived his father, as the provision that if he should die without issue may he referred to the period in which he came into the possession of the estate.</p>

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

<p>1. Railroads — Operation—Accidents at Crossings — Actions for Injuries — Instructions.—In an action against a railroad company for injuries, where plaintiff’s claim was that he was caused to fall against a moving train passing over a crossing, by the giving way of a bank of snow negligently thrown upon said crossing by the servants of the railroad company; and where defendant’s claim is that plaintiff was injured in an attempt to board the train passing over said crossing, the instructions reviewed and held not prejudicial, (1) in the use of the word "negligently” therein; (2) in the use of the words “authorized agents” therein; and (3) in the use of the phrase “while exercising ordinary care for his own safety.”</p> <p>2. Railroads — Operation—Accidents at Crossings — Rights, Signals and Rook-outs from Trains or Cars. — In an action against a railroad company for injuries, where plaintiff’s claim was that he was caused to fall against, a moving train passing over a crossing, by the giving way of a bank of snow negligently thrown upon said crossing by servants of the railroad company, and where defendants claim was that plaintiff was injured in an attempt to board such moving train, the duty to maintain a look-out was not involved; for if plaintiff’s contention as to the cause of the injury be true, he may recover regardless of whether proper look-out was maintained or not; while if he was a trespasser, as the railroad company contends, it owed him no look-out duty; its only duty in that case being to use ordinary care to. prevent injury after the discovery of his peril. Generally speaking, the look-out duty imposed on railroads has reference to persons encountering a moving train in the direct path of its motion, not in its midst nor upon its side.</p> <p>3. Evidence — Former Evidence — Deposition Taken in Former Action. — Where plaintiff instituted an action against a railroad company and two of its servants, took the deposition of a certain witness, and dismissed that action, and brought a second action against the railroad company and another of its servants, upon the trial of which plaintiff offered to read the deposition taken in the former action, as evidence against the company only, without filing the same among the papers in the second action before the commencement of the trial, the deposition is inadmissible for failure to conform to Section 585, Civil Code.</p>

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

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

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

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

<p>1. Employer’s Liability Act — Measure of Damages in Recovery for Death. — In an action under the Federal statute, known as the Employer’s Liability Act, it is improper for the trial court, in defining the measure of damages for the death of an employe, caused fby the negligence or wrongful act of a railroad company, to instruct the jury that they should award the administrator of the decedent such a sum in damages as will fairly and reasonably compensate the estate of the decedent for the destruction of his power to earn money, although such instruction would . conform to the measure of damages applicable fo actions for death brought under Section 6, Kentucky Statutes.</p> <p>2. Employer’s Liability Act — Damages—(Instructions Defining. — The damages recoverable under the Employer’s Liability Act are not such as will compensate the estate of the deceased employe for the destruction of his power to earn money, but such as will reasonably compensate the dependent beneficiaries named in the act, in the order named, for such pecuniary benefits as, the evidence may show, they had a reasonable expectation of receiving from the decedent, if his death had not been caused by the negligence of the defendant; and the damages allowed must be apportioned by the jury among the beneficiaries by stating in their verdict how much, if anything, they find for each of them, the damages altogether not to exceed the amount claimed in the petition.</p> <p>3. Appeal — Review—Estoppel.—Where the trial court attempts to instruct the jury upon an issue involved, it is its duty to state the law correctly; and, if an instruction given does not correctly state the law, the error therein, if prejudicial to the substantial rights of the party complaining of it, and if such instruction was objected to by him when given, will, on appeal, authorize a reversal, although the latter may not have offered or asked an instruction in lieu of such erroneous one containing a correct statement of the law.</p>

<p>1. Negligence — Interference with Flow of Water Resulting in Destruction of Property. — Where water is being thrown upon a fire and there is any reasonable ground to believe that any part of the property may be saved, and one by his negligent act interferes with the flow of the water and by reason thereof more property is destroyed than otherwise would have been destroyed, the interference was the proximate cause of such loss.</p> <p>2. Railroads — Interfering with Water Hose — 'Liability.—Al railroad company is liaible for a loss by fire occasioned by its negligent act in interfering with the water hose which is laid across its track.</p>

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

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

<p>Statute of Frauds — Requisites and Sufficiency of the Memorandum. — Within the meaning of the statute of frauds, the words “the party to be charged’’ mean the vendor, in a sale of land; and unless the vendor sign, he may not maintain an action upon the writing, even though the vendee has signed it.</p>

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

<p>1. Judgment — Error in Name. — Where an infant brought suit by his next friend, and the judgment was in the name of the infant alone, this clerical mistake is not available error on appeal. The infant was the real party in interest, and if the defendant desired to have the judgment show on its face that it was recovered for his use and benefit in the name of his next friend, he should have made some motion to correct it in the lower court.</p> <p>2. Instructions — Waiver of Error. — Errors and instructions will be waived unless exceptions and objections are taken to them in the trial court.</p>

<p>■1. Bills and Notes — Holder in Due Course — Evidence.—In an action on a note, evidence considered, and held that plaintiff was a holder in due course.</p> <p>2. Bills and Notes — Collateral Security — Lien—Holder in Due Course — Kentucky Statutes, Section 3720b, Sub-section 28. — One who holds a note as collateral to secure another note is a holder for value only to the extent of his lien, and where the principal obligation is for a less sum than the collateral note, and the maker of the collateral note has a good defense against the pledgor of that note, it is error to give judgment in favor of the pledgee for the full amount of the collateral note.</p> <p>3. Bills and Notes — Collateral—-Maker—-Right to Exhaust Other 'Collateral. — The maker of a collateral note cannot compel the pledgee before enforcing it to exhaust other securities held by him for the principal debt, even though the maker has a set-off •available against the pledgor.</p> <p>4. Bills and Notes — Pledgee—Right to Enforce Collection. — A' pledgee of collateral has the right to enforce collection thereof even though the principal debt is not due.</p>

<p>1. Trespass — Personal Injuries — Negligence—'Street Railroads. — ■ Where a street car leaves the track and knocks down a tele* phone poie standing on the side of the street against a person on his own premises, or the pole in falling knocks a gate against such person and injures her, a trespass is committed and she may recover without showing negligence on the part of the street car company.</p> <p>2. New Trial — Misconduct of Counsel. — The court having excluded a statement made by the attorney, and cautioned the jury to disregard it, a new trial will not be granted for this misconduct.</p> <p>8. New Trial — Evidence.—The admission of the opinions of non-expert witnesses as to the condition of an injured person will not be ground for new trial where on the whole case it was not prejudicial.</p>

<p>1. Fraud — Personal Injuries — Settlement.—The question of fraud in the obtaining from an yijured employe of a writing compromising a claim for personal injury, is properly submitted to the jury where the proof for him shows that the settlement was for the time lost up to that time and his signature was obtained to the paper by the agent concealing from him the true nature of the paper he was signing and inducing him to sign it under a misapprehension.</p> <p>2. Tender. — Where money is paid simply for wages lost up to the time of the settlement, no tender of the amount paid is necessary in order to maintain an action, but the amount so paid should be credited on the amount allowed.</p>

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

<p>1. Contracts — Conflict of Laws — A parol license to haul logs over land lying in another state is governed by the law of that state.</p> <p>2>. Contracts — Law of Another State — Failure to Plead or Prove— Application of Common Law. — Where an action is brought in tbis state for breach of a contract arising in another state, in the absence of pleading and proof of the law of that state, it will he presumed that the common law in force her© prevails.</p> <p>3. Licenses — Revocation.—A parol license to haul logs over land is without consideration, and revocable at the pleasure of the owner, where the licensee simply agrees to pay the owner such damages as he may sustain, and the owner is not liable for damages growing out of the licensee’s inability, because of such revocation, to get the logs to market and comply with a contract previously made.</p> <p>4. Damages — Instructions—Sufficiency.—An instruction is erroneous which permits the jury to fix damages, without giving them any guide for their direction.</p>

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

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, No. 4).</p>

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

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

<p>1. Infants — 'Necessaries—Attorneys’Fees.—An attorney who renders legal services of value to an infant in pending litigation is entitled to a reasonable fee for his services upon the ground that such services are to be treated as necessaries for which the infant may be reguired to pay a reasonable compensation.</p> <p>2. Guardian Ad Litem — Compensation—Practice.—The fee, under 'Section-38 of the Civil Code, allowed a guardian ad litem for rendering defensive services in behalf of an infant should be taxed as costs and paid by the plaintiff.</p> <p>3. Guardian Ad Litem — Compensation of — Insolvency of Plaintiff. — ■ If, however, the plaintiff is insolvent, or if for any reason the fee allowed the guardian ad litem cannot be collected from the plaintiff, the court, upon a proper showing, should make such orders as may be necessary to enable the guardian ad litem to recover from the infant the fee allowed, and this fee, if paid by the infant, he may thereafter recover from the plaintiff, if it can be done.</p> <p>4: Guardian Ad Litem — Allowance Should Be Made in Case in - Which He Was Appointed- — The allowance to the guardian ad litem should be made in the suit in which he was appointed and to which the plaintiff, who must pay the fee, was a party, as the ■plaintiff has a right to be heard on the guestion of allowance.</p> <p>5- Guardian Ad Litem — Allowance to — Practice When Plaintiff is Insolvent — Attachment.—When it is shown that the plaintiff is insolvent, the court should make such orders as may be necessary to secure to the guardian ad litem the payment of his fee out of any estate of the infant that is subject to the orders of the court, and if it happens that when the allowance is made the infant has arrived at age, the guardian may be permitted, when the plaintiff is insolvent and the fee must be paid by the infant, to obtain an attachment as in other cases.</p> <p>6. Guardian Ad Litem — Allowance to When Case is Off Docket.— When the case in which the guardian ad litem was appointed has gone off the docket before the allowance is made, it may, on, motion of the guardian ad litem, after notice to the plaintiff and the infant, be reinstated on the docket for the purpose of having the allowance made.</p>

<p>Instructions — Should be Given Before Argument Begins — Practice-—It is the proper practice to instruct the jury before the argument is made, but it is not necessarily prejudicial error to instruct the jury during the argument or even after the argument is closed. When, however, an instruction is given after the argument is closed, the court should always permit the attorneys, if they desire so to do, to re-argue the case, at least to the extent that the issues are affected by the belated instruction.</p>

<p>Wills — Construction of- — A testator devised his land to his wife for life, then to his brother A for life, providing that at his death if they should be then dead, or at their death if they should survive him, the land should be divided among the descendants of his brothers and sisters then living as though he had died intestate, A being dead, and the widow having renounced the will, held that the descendants of the brothers dnd sisters who would take the land if he had died intestate, then took it, it being apparent from the will as a whole that the testator only intended to provide for his widow, his brother A, and subject to this provision intended his land to go to the descendants of his brothers and sisters as though he had died intestate.</p>

<p>1. Wills — Trial of Contest — Peremptory Instruction. — On the trial of a contested 'will case a peremptory instruction directing a verdict for the propounders, should not be given, if there is any evidence tending to show a want of testamentary capacity on the part of the testator, or that the will was the result of undue influence exercised upon the testator by others.</p> <p>2. Wills — Undue Influence — How It May Be Shown. — Undue influence, like fraud, is not easily proven. Only in rare cases can it be shown by the express declarations or overt acts of the person exercising it; for which reason it must necessarily he shown, in the main, by circumstantial evidence.</p> <p>3. Wills — Province of Jury To Weigh Evidence — When Verdict Will Not Be Disturbed. — It is the province of the jury to say under all the evidence, whether or not the paper in question is the last will and testament of the deceased, and their finding, under proper instructions, will not be disturbed, unless there was no evidence to support it, or the verdict is flagrantly against the evidence.</p>

<p>1. Master and Servant — Injury to Mine Employe by Vicious Mule — . When Master Liable For. — Tbe rule that requires the master to ordinary care to furnish his servant with a reasonably safe place in which to work and reasonably safe tools and appliances with, which to perform his work, applies to mining; and if one employed as a driver of mules in. hauling coal cars in a mine, is injured hy reason of the viciousness or unsafeness of a mule he was required to drive in the mine, the master is liable therefor, unless the servant knew of the viciousness or unsafeness of the mule before receiving his injuries, or its vicious or unsafe qualities were so patent as to have become known to him while using the animal.</p> <p>2. Master and Servant — Viciousness of Mule Will Not Be Presumed— Representations of Master As To Safeness of Mule May Be Relied On By Servant. — In using a mule in work required of him by the master, a servant is not required to take it for granted that the animal is inherently dangerous; and the law will not exempt the owner of a mule from responsibility to his servant injured by the viciousness or unsafeness of the animal, where the servant, being unacquainted with its viciousness or unsafeness, is injured because induced by the master’s assurance of its gentle and reliable qualities to omit, in his use of it, some precaution for his safety, as a person of ordinary prudence he would otherwise have taken.</p>

<p>1. 'Municipal Corporations — Indebtedness of — Section 157 Constitution. — Under Section 157 of the Constitution, which prohibits any city .or taxing district to become indebted to an amount exceeding, in any year, the income or revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose, a city may exceed the yearly revenue with the assent of two-thirds of the voters who vote upon that question.</p> <p>2. Municipal Corporations — Sections 157 and 158 Constitution.— Neither Section 157 nor Section 158 of the Constitution is a grant of power; each section provides a limitation on the power of municipalities to create indebtedness.</p> <p>3. Municipal Corporations — Indebtedness of — Limitation of. — -Sections 157 and 158 of the Constitution were plainly intended to limit the tax Tate and indebtedness of municipalities, of every class, by fixing a maximum tax rate and per centum of indebtedness, upon the assessed valuation of property therein, beyond which they could never go, except, first,'for school purposes; second, for the purpose of paying the interest and providing a sinking fund for the extinguishment of an indebtedness created before the adoption of the Constitution; and, third, where, by reason of an emergency, the public health or safety of the municipality should so require.</p> <p>4. Municipal Corporations — -Indebtedness—Emergency.—An emergency which would authorize a municipality to exceed the tax rate and indebtedness prescribed by .Sections 157 and 158 of thg Constitution, must be some sudden or unexpected occasion for action; some unforeseen occurrence, condition, or pressing necessity, that requires immediate attention.</p> <p>5. Municipal Corporations — Sewerage System — Emergency.—iThe need of a waterworks and a system of sewerage by a municipality does not create an emergency which would, under Section 158 of the Constitution, authorize the city to exceed the indebtedness therein limited.</p> <p>6. Municipal Corporations — Ordinances—Declaration of Cannot Make Emergency. — The declaration of the General Council of a city, by an ordinance, that an emergency exists, cannot make it so; the emergency must exist as a fact; and is to be determined under the evidence like any other fact.</p>

<p>1. Railroads — Operation—Notice of Approach of Train. — It is the duty of those operating a railroad train, to moderate the speed of the train, to give notice of its approach, to keep a lookout, and to take such precautions for the safety of others as the circumstances demand.</p> <p>2. Railroads — Safety of Persons Crossing Track. — What precautions may he necessary in a particular case to provide for the safety of persons crossing or using the track, -will depend, to some extent, upon the character of the locality.</p> <p>■3. Railroads — Use of Track for Passway — Presence of Persons on Track. — If the public generally, with the knowledge and ac-* quiescence of the railroad company, had continuously used the track as a passway for such a period of time that the presence of persons on the track was to be anticipated by those running the train, the law imposed upon the company a lookout duty for those who thus used the track.</p> <p>4. Railroads — Accident Within. Limits of Town — Lookout—Trespassers. — (The fact that the place at which an accident occurred was within the corporate limits of a town did not, of itself, impose upon the railroad company the duty of lookout, and warning’, and other care necessary at crossings and upon streets, since a railroad track might be within the corporate limits of a town, and yet not be on a street or a place habitually used by the public; and unless one of these facts is shown to exist, persons who used the tracks may be said to be trespassers.</p>

<p>1. New Trial — Discretion of Judge. — A judgment setting aside a verdict and awarding a new trial will not be reversed unless it appears that there was an abuse of discretion on the part of the trial court.</p> <p>2. New Trial — Order Granting — Reversal.—Where there are several grounds for a new trial, one of which is insufficient, and it does not appear from the record that the trial court, in awarding the new trial, acted upon the insufficient ground, but may have awarded the new trial upon other grounds which were sufficient, the order granting the new trial will not be set aside.</p> <p>2. Master and Servant — Appliances—Defective—Duty of Employes To Inspect — Instructions.—While ordinarily the duty of inspection does not devolve upon an employe unless the inspection is a part of his duty, yet where there is evidence tending to show that inspection is in the line of the employe’s duty, an instruction is not erroneous which tells the jury that if they believe plaintiff was the night foreman in defendant’s factory and under his employment as such it was his duty to inspect the appliances complained of, and he failed to exercise ordinary care in doing so, they should find for the defendant.</p>

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

<p>1. Railroads — Right of Way — Lateral Support — Damages to Adjacent Owner. — A railroad company that obtained a right of way “on, over and through which to construct, maintain and operate a single or double track railway” was liable to an adjacent land owner for the damage he sustained by the slipping of his land caused by the company making a deep excavation on the property line between its right of way and his land.</p> <p>2. Lateral Support — Liability for Removing. — The owner of land adjacent to the lands of another has no right to remove the earth and thus withdraw the natural support of his neighbor’s soil, and if lie does lie is liable, without reference to whether the removal of the lateral support was accompanied by acts of negligence or not.</p> <p>5. Railroads — Right of Way — Injury to Land of Adjoining Proprietor. — Under section 242 of the Constitution, providing that corporations, before taking property for public use, shall make just compensation for the property taken, injured or destroyed, a rail- ' road company is liable to an adjacent land owner for damage to his land by removing the lateral support afforded by its right of way, whether it is negligent or not.</p> <p>4. Railroads — Right of Way — Contracts Covering Damage to Adjacent Land.- — A person who conveys a right of way to a railroad company and the company have a right to contract with reference to the damages that may result from the use to which the right of way may be put, and such a contract, if duly recorded, would run with the land and be a protection to the railroad company against subsequent owners.</p> <p>6. Railroads — Condemnation Proceedings May Include Damages to Adjacent Lands. — If it is made to appear that in condemnation proceedings damages were assessed and recovered for any injury that might be done to adjacent land by any use that the right of way might be put to, the company would be protected from liability to the owner or his successors in title.</p> <p>6. Railroads — Right of Way — Rights and Liabilities of in Respect to Adjacent Land Owners. — Under the present Constitution a railroad company, in the use of its right of way, occupies the same relation as any other adjoining proprietor when the instrument under which it holds does not confer upon it larger rights than usually follow from the sale and purchase of land under ordinary deeds.</p> <p>7. Railroads — Right of Way — Rights and Liabilities in Respect to.— .Where a railroad acquired by condemnation or purchase a right of way, it may use it in any way it pleases not incompatible with the duty it owes to adjacent proprietors, and its obligation under the Constitution not to take, injure or destroy property outside the limits of its right of way.</p>

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

<p>1. Railroads — Action Against for Personal Injuries — Instructions—■ Measure of Damages — Evidence.—In an action against a railway-company for damages for personal injuries, evidence examined and held that the injury was the result of inexcusable negligence on the part of the railway company and the verdict awarding $500.00 is not excessive.</p> <p>2. Instructions. — Where no objection was offered to an instruction at the time it was given, complaint of it upon appeal will not be considered.</p>

<p>1. Homicide — Malice.—Malice aforethought means a predetermination to do the act of killing, without legal excuse, and it is immaterial how recently such determination was formed, before the act of killing.</p> <p>2. Homicide — Evidence — Weight and sufficiency — Malice.—Malice may be proved by inferring it from the circumstances attending the killing.</p>

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

<p>Railroads — One Riding on Freight Train With Assent of Conductor— When Cannot Recover for Injury. — One who gets on a freight , train with the assent of the conductor simply to ride on top of the train for his convenience, is not a passenger, and when he undertakes to jump from the train while running about twenty miles an hour and is hurt, he cannot recover although it is shown that the injury was in part due to a jerk of the train incidental to its quickening its speed just as he was trying to leave it.</p>

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

<p>1. Deeds — Mutilated Unrecorded Deed — Action to Compel Heirs-at-Law of Vendor of Land to Execute Deed in Lieu of to Vendees.— In an action by the grantees of a vendee of land, to compel the heirs-at-law of the latter’s vendor to execute to them a deed to the land, in lieu of a mutilated, unrecorded deed which he had made to his vendee; held, that while it may not have been proper for the circuit court to rest the judgment granting the plaintiffs the relief ashed upon the mutilated deed alone, what was shown by the deed, together with the facts that it was found among the papers of the vendee after his, death; that he became claimant of the land from the date of the instrument; that he placed his sons, the plaintiffs, in possession of the land in 1875' and by deed conveyed to them in 1896; that they have had the continuous actual adverse possession of the land since 1875, furnished, as a whole, sufficient evidence of their right to the land and entitled them to a decree quieting their title to and possession thereof.</p> <p>2. Judgment — Harmless Error. — Whether the judgment should have gone farther than to declare the plaintiffs’ ownership of the land and quiet their title to and possession thereof, is not deemed necessary to decide on appeal, as the fact that the relief it granted also went to the extent of compelling the defendants to execute a deed, through the commissioner, did not prejudice any substantial right of the latter. If the court erred in compelling the execution of the deed, it is harmless error, which will not justify a reversal of the judgment.</p> <p>3. Limitation. — Not a Bar to the Correction of a Deed. — The statute of limitations of ten years is not a har to the correction of a deed or the enforcement of its execution, where the vendees have, from the time of the purchase of the land, contin lously remained in the possession thereof.</p>

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

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

<p>1. Action — Abatement—Prejudicial Error. — Where an action in behalf of an infant lunatic is improperly brought by his mother as next friend, the refusal of the trial court to abate the action is not prejudicial error where during the pendency of the action. the lunatic dies and the mother is thereafter permitted to file an amended petition and prosecute the action in her name as heir of the infant lunatic.</p> <p>2. Judgment — Propriety of — Evidence.—In determining the propriety of a judgment, this court will consider only such evidence as is competent.</p> <p>3. Land — Action to Recover — Fraud—Evidence.—In an action to recover land on the ground of fraud, evidence considered, and held to support a finding of fraud.</p> <p>4. Marriage — Legitimacy of Children — Proof of. — In an action where the marriage of plaintiff and the legitimacy of her children are in issue, the fact that she and her alleged husband lived together as man and wife and enjoyed the reputation of being married, that there was a judgment of divorce introduced by defendant himself, and the defendant and others recognized the children as legitimate, is sufficient in the absence of evidence to the contrary, to create the presumption of marriage and establish the legitimacy of the children.</p> <p>6. Land — Recovery—Execution of Deed by Commissioner — When Prejudicial — Where .plaintiff recovers certain land, the fact that the commissioner, on behalf of the defendant, executes to her a deed without giving defendant an opportunity to do so, affords . no ground for reversal.</p>

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

<p>1. Judgment — Records—Nunc Pro Tunc Order — Entering at Subsequent Term. — The rule is well settled that the court cannot alter, correct, or amend its records at a subsequent term by the recollection of the judge, or the representation of others to him. There must be at least a minute, or a memorandum on the court record evidencing the order or judgment then rendered to justify the court, at a subsequent term, entering a nunc pro tunc order.</p> <p>2. Bond — Proceeding Against Non-resident. — In an action under Section 414 of the Civil Code against a non-resident, the bond executed without objection two days before the judgment was sufficient in view of the fact that it appears the bond was tendered when the answer was tendered, and during the period the court had the question of the offer to file under advisement, the bond was misplaced.</p>

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

<p>Appeal from Jefferson Circuit Court (Chancery Branch No. 1).</p>

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

<p>1. Explosives — Negligence—Degree of Care Required. — Where defendant sold gasolene to a number of persons believing it to be coal oil, it was the duty of defendant to use the highest degree of care usually exercised by ordinarily prudent men, under like or similar circumstances, to apprise the purchasers of the mistake.</p> <p>2. Negligence — Action for Personal Injuries — Evidence—Peremptory. — In an action by plaintiff to recover damages for injuries sustained as a result of the negligence. of defendant in selling him gasolene instead of coal oil, to be used for lighting purposes, and in failing, after the discovery of the mistake, to exercise proper care to apprise him thereof, evidence examined, and held sufficient to take the case to the jury and to sustain a verdict in favor of plaintiff.</p>

<p>1. Municipal Corporations — Ordinance Licensing Illegal Business Void. — Where -an ordinance undertook to require money lenders who charged interest in excess of 12 per cent to pay a license fee and subjected them to a penalty for the failure so to do, the ordinance was void, as money lenders are not authorized by law to charge more than 6 per cent interest and the city could not by ordinance authorize them to charge 12 per cent, or any sum in excess of 6 per cent.</p> <p>2. Municipal Corporations — Ordinances in Violation of Charter of State Law Void. — An ordinance that violates a provision of a city charter or a statute of the State is void.</p> <p>3. Municipal Corporations — Ordinances—License Pees. — A city can not by ordinance legalize an illegal thing or impose a license fee that will give authority to do an illegal thing, nor can it, under such an ordinance, punish a person who refuses to take out the license.</p>

<p>1. Wills — Undue Influence. — It is in rare instances that undue influence can be established by direct evidence; its existence is usually shown by the grouping of certain facts and circumstances together.</p> <p>2. Wills — Undue Influence — What Constitutes. — Influence obtained by modest persuasion and arguments addressed to the understanding, or by mere appeals to the affections, cannot be properly termed undue influence in a legal sense; but influence obtained by flattery, importunity, threats, superiority of- will, mind, or character, or by what art soever the human thought, ingenuity, or cunning may employ, which would give dominion over the will of the testator to such an extent as to destroy free agency or constrain him to do against his will what he is unable to refuse, is such an influence as the law condemns as undue when exercised by any one immediately over the testamentary act, whether by direction or indirection, or obtained at one time or another.</p> <p>3. Wills — Undue Influence — Testamentary Capacity. — While Gross inequality of distribution of the natural objects of the testator’s bounty does not, of itself, or by itself, establish undue influence, or the want of testamentary capacity, yet in connection with other evidence of testamentary incapacity or undue influence, such inequality is competent.</p> <p>4. Wills — Testamentary Capacity. — It is as necessary, in order to have testamentary capacity, for one to have such sensibilities as will enable him to know the obligations he owes to the natural objects of his bounty, as it is for him to have the capacity to know the nature and value of his estate, and a fixed purpose to dispose of it.</p> <p>5. Wills — Testable Capacity — Definition of. — Testable capacity is that capacity which enables one of sufficient mind and memory to know the-natural objects of his bounty and his duty to them and to know his property, to make a rational survey of itv and to dispose of it according to a fixed purpose of his own.</p>

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

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

<p>x. Judicial Sales — Infants—Process.—Where in an action to enforce a mortgage lien the land is sold and the mortgagor dies before confirmation, and process on a petition for revivor is served individually on infants under 14 years of age, such service is not sufficient to bring such infants before the court, and not being properly summoned, the appointment of the guardian ad litem is void.</p> <p>2. Judicial Sales — Infants—Process—Insufficient—Effect on Title of Purchaser. — Where in an action to enforce a mortgage lien the land is sold and the mortgagor dies before confirmation, and process on a petition for revivor is improperly served on infants under 14 years of age, and the appointment of a guardian ad litem is therefore void, the order of revivor, the order of confirmation, and the deed executed to the purchaser are void, and the proceedings are not sufficient to vest the purchaser with title-</p> <p>3. Judicial Sales — Void Sale — Infants'—Right to Recover Land, Rents and Timber — Lien Debts — Set-off by Purchaser — Limitation.— Where in an action to enforce certain mortgage liens the land is sold, but the mortgagor subsequently dies, and because the action is not properly revived against his infant children, the order of confirmation and the deed to the purchaser are void, the infant children are not divested of title, and may recover their pro rata share of the land, rents, and timber cut by the purchaser, but the purchaser may set-off against their claims their pro rata share of the lien debts discharged by the purchase money, with interest from the time of payment. Being in possession, limitation does not run against him.</p>

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

<p>1. Master and Servant — Volunteer—Master Not Liable for Injury to. — Where a third party, having no connection with the master’s business, was injured while assisting at his request a subordinate employe, he cannot recover against the master when there was no emergency or other reason why the unauthorized, employe should have secured the assistance.</p> <p>2. Master and Servant — When Master Liable for Acts of Servant.— Where a servant, acting within the scope of his apparent authority, inflicts injury on a third person, the master will be generally liable for the wrongful acts of the servant.</p> <p>3. Master and Servant — Volunteer—Unauthorized Employment. — • A servant, when there is no emergency requiring prompt action, cannot bind the master by employments or requests made outside the line of his duties.</p> <p>4. Master and Servant — Right of Master to Know Who Servants Are — Not Bound by Unauthorized Employment of Servant. — Employers of labor, except in cases of emergency, have the right to know whom they will' be called upon to protect in the relation of servant and when this relation begins. Therefore, when a third party undertakes, as an accommodation or out of curiosity, to render some assistance to an employe who has no authority to engage or consent to his services, he assumes the risk of any accident that may happen due to the ignorance or even carelessness of the employe.</p>

<p>Vendor and Purchaser — Deeds—Construction of. — The interest that a vendee takes is limited by the terms of the deed under which he holds, and when there is excluded from the deed certain land, the vendee does not acquire any interest in the exclusion.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch No. 3).</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch No. 3).</p>

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

<p>Practice — Pleadings.—On the reversal .of a judgment of the circuit court sustaining a demurrer to a petition, the case stands in the circuit court just as it would have stood if the circuit court had overruled the demurrer to the petition; and the party demurring may plead when his demurrer is overruled.</p>

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

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