Volume 158 — Kentucky Reports

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

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

<p>1. Intoxicating Liquors — Local Option Election — Number of Petitioners Required -to Authorize Ordering or by Country Court.— Section 2554, Ky. Stats., requires that, to authorize the calling by the county court of a local option election for the county, the petition must contain names of qualified voters from each precinct of the county equal to 25 per cent of the votes cast at the last general election in each of such precincts.</p> <p>2. Intoxicating Liquors — Withdrawal of Names From Petition — Revocations of Withdrawals. — Petitioners for an election under the local option statute have the right, before the order is entered calling the election, to withdraw their names therefrom, and after making such withdrawal may also be allowed to revoke same, before the order calling the election is entered; both being allowable under Section 134, Civil Code, applicable to such a special proceeding, which provides that a pleading or proceeding may be amended “by adding or striking out the name of a party.”</p> <p>3. Intoxicating Liquors — Filing of Supplemental Petitions Containing Additional Names — When Permissible. — Section 134, Civil Code, permits supplemental petitions containing additional names of qualified voters from any precinct of the county, requesting the calling of the election, to be filed, as in the nature of amendments, at any time before the entering of the order by the county court calling the election.</p> <p>4. Intoxicating Liquors — Duty of County Court After Filing of Supplemental Petitions For the Election. — When supplemental petitions''containing additional names of qualified voters, requesting the calling of the election are not filed until the day of a regular term of the county court on which the election may be ordered, and such additional names are required to authorize the calling ' of the election, it is the duty of the county court to let the proceeding lie over to the next regular term of the county court or for a shorter reasonable time, to_ include which, the regular term may by order be extended, for the purpose of enabling legal voters of the county, who oppose the calling of the election, to make the necessary investigation as to the qualification as legal voters of the signers of the supplemental petitions; and the failure of the county court to pursue this course under the circumstances indicated will invalidate the election.</p> <p>5. Intoxicating Liquors — Election Must Be Ordered by County Court —Order Cannot Be Made in Absence of the Jurisdictional Facts. — - The election cannot be held without an order of the county court, and the statute does not permit the county court to order the election unless qualified voters equal in number to 25 per cent of the legal voters in each precinct at the last general election petition for it; it not being contemplated that there should be the expense and trouble of an election before the jurisdictional facts warranting the county judge in making the order wer.e made to appear to him. Therefore, the thing left open to the county court to hear evidence upon, and concerning which it may exercise judgment is, have the requisite number of legal voters signed the petitions and if the court may hear evidence in order to determine these facts, such evidence ought to be allowed from those opposing the election as well as those favoring it, and both given a reasonable opportunity to be heard.</p>

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

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

<p>1. Street Railroads — Regulation, and Operation — Injuries to Passenger.-t-When a passenger is alighting from a street car if by reason of a movement of the car, or by reason of the closing of the safety gates upon her shoe heel the passenger is caused to be thrown to the ground, the carrier is answerable in damages.</p> <p>2. Appeal — Review—Question of Fact — Verdict.—A verdict will not be set aside as excessive unless it is so grossly disproportionate as to the measure of damages or so palpably against the evidence as to shock the conscience and raise an irresistible inference that it was influenced by passion or prejudice'.</p>

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

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

<p>1. Landlord and Tenant — Contract Between — Destruction of Property by Fire — Restoration of Building — Action for Rent for the Time Property Was Unoccupied. — In an action by a landlord to recover of the tenant the amount of rent accruing from the time the building was restored after it had burned until another tenant had been secured, the contract provided that the lessor within five days after the property had been destroyed, or rendered unfit for habitation, should give notice to the tenant whether the property should be restored, or the lease cancelled and the notice was given accordingly that the property would be restored and when restored possession would be given the lessee, the defense interposed that the lessee had cancelled the lease and given notice thereof was not sufficient and judgment was properly rendered against him for the amount of the rent accruing under his contract from the time of the restoration of the property until its occupancy by another tenant.</p> <p>2. Landlord and Tenant — Contract Between. — -While the provision in the contract referred to is in a sense unilateral, the lessors under it were the sole judges as to whether they would rebuild, or cancel the.contract and appellants entered into the contract with full knowledge of this provision.</p> <p>3. Landlord and Tenant — Lease.—Leases are constantly made in which one of the parties is given various options or privileges without any corresponding privilege to the other, and it has never been held that the lease was rendered void by such a provision.</p>

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

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

<p>1. Railroads — Where Passenger Compelled to Leave Moving Train or Be Carried Beyond Destination. — Where a passenger by the wrongful act of the company is compelled to choose between leaving the train while it is moving slowly, or submitting to the inconvenience of being carried beyond the station where he desires to stop, the company is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably.</p> <p>2. Railroads.- — The foregoing rule applies to street railroads as well as to steam railroads.</p> <p>3. Negligence.- — It is not negligence per se for a passenger to alight from a moving street car.</p> <p>i. Negligence. — Where the facts are undisputed the court may pass upon the question of negligence as one of law, if but one legitimate inference can be drawn from the facts relied upon for a recovery.</p> <p>5. Railroads — Passenger—Alighting From Moving Train. — If the. danger in alighting from a moving train is obvious or apparent, the passenger should not attempt to alight; and in an action for damages received in alighting from a moving train, the petition must preclude the hypothesis that when the passenger made the attempt to alight, the danger was obvious or apparent.</p>

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

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

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

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

<p>1. Patents — Exclusions—Evidence.—Where in an action by plaintiff to recover of defendants the value of timber cut from land claimed by her under a 10,000-acre patent, from which certain surveys were excluded, evidence examined and held to sustain the ¡finding of the chancellor that the land in controversy was not embraced in any of the exclusions referred to.</p> <p>2. Patents — 'Survey—'Failure to Perfect. — Where an applicant for a patent fails, for more than forty years, to perfect a survey and carry it into grant, it will be regarded as an abandoned survey.</p> <p>3. Patents — Exclusions—Valid .Surveys. — Where a patent contains the provision, “plotting out of this survey all lands heretofore surveyed,” this expression applies only to valid surveys, and does not include surveys which were never perfected in the* manner required by statute.</p>

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

<p>Appeal. — Where the record is so imperfect that the court cannot determine with fairness to the litigants what judgment should be entered, the case will bo remanded to reform the pleadings and take such -evidence as may be necessary to present clearly the issues between the parties, so that justice may be done.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>1. Land — Bond for Title' — Construction.—Under a bond for title, where the grantor agrees to make to the grantee a warranty deed for the surface of about 60 acres of land, “reserving the mineral and mineral rights of every sort and nature, and the right of ingress and egress and of way to work and exploit same at all future times, and any right of way to work same shall not cost said L. E. Bryant (grantor) more than the actual damage and $12.50 an acre, which right shall cease at the death of L. E. Bryant,” the vendee acquires title to only the surface of the land in controversy, and the title to the mineral and mineral rights does not vest in him on the death of the grantor.</p> <p>2. Land — Bond for Title — Deeds—Merger.—In the absence of fraud or mistake, a title bond to land is merged into a subsequent deed executed and delivered and accepted by the parties for the purpose of carrying the title bond into effect, and the deed expresses the final and entire contract between the parties.</p> <p>3. Land — Title Bond — Deed—Failure of Title — Relief—Sufficiency of Petition. — Where the maker of a title bond subsequently executes a deed which is accepted by the vendee, the vendee is not entitled to have the deed rescinded or to have another deed made on the mere allegation that the grantor did not have title when the deed was made; since if he subsequently acquired title it would inure to the benefit of the grantee by virtue of the covenants of warranty.</p> <p>4. Land — Title Bond — Deeds—Failure of Title — New Deed — Rescission. — Where the vendee in a title bond subsequently accepts a deed to the land and takes and enjoys possession without molestation or eviction, he is not entitled to a rescission without alleging fraud, insolvency or non-residency of the grantor, and the palpable or threatened danger of immediate or ultimate loss without legal remedy.</p> <p>5. Land — Title Bond' — Failure of Title — New Deed — Rescission.— Where a bond for title provides for a survey of the land and a sale thereof at $6.25 an acre, the mere allegation that the boundary in the deed is not identical with the boundary in the title bond is not sufficient to require the execution of a new deed or the rescission of the old one.</p>

<p>Husband and Wife. — In a divorce ease the judgment of the chancellor on the facts is entitled to considerable weight, anid will not be disturbed' unless it appears from an inspection of the entire record that he reached an erroneous conclusion.</p>

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

<p>1. Master and Servant — Hours of Service Act — Construction of. — • Under the Federal Hours of Service Act, an employe is not engaged in service within the meaning of the Act unless he is actually engaged in or connected with the movement of a train. And so a brakeman is not engaged in service when he is on his way from his home to his work, although he left his home in obedience to an order of the company directing him to report for service connected with the movement of the train.</p> <p>2. Master and Servant — 'Hours of Service Act — Construction of.— “Dead-heading.” — A brakeman who is “dead-heading” from one point to another on the road under direction of the company so that he may be able to report for duty at the place to which he is going, is not, while so “dead-heading,” engaged in service withm the meaning of the Act, when he has no duties to perform in connection with the movement of the train on which he is “dead-heading.”</p> <p>3. 'Master and Servant — Hours of Service Act — Construction of.' — ■ When Service Begins. — When an employe, in obedience to a rule of the company, reports for train service a half hour be< fore the time fixed for the departure of the train, this time is to be counted in computing the hours of service if he is ordered to report so that he may perform some service in connection with preparing the train for its departure.</p> <p>4. Master and Servant — Action to Recover Damages for Negligence — Proof of Negligence Required. — When it is sought to recover damages for negligence or wrongful acts, there must be some evidence to show that the injury complained of was caused by the negligence of the defendant, and this evidence must be sufficient to charge the defendant with a breach of duty. A recovery cannot be had on mere surmises or specular tions as to bow the injury happened, nor will it be presumed that the defendant was guilty of actionable negligence.</p> <p>5. Master and Servant — Action for Damages — Proof of Negligence Necessary. — Mere proof of the injury, with attending circumstances, is not sufficient. There must be some evidence conducing to show that the injury was caused by the negligence, of the defendant. When the plaintiff merely presents theories as to how the accident happened or speculative reasons that caused it, no recovery can be had.</p>

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

<p>1. Insurance, Life — Control and Regulation ih General — Constituí - tional. and Statutory Provisions. — The Act of April 5, 1893, (Acts 1891-2-3, Chap. 171, Section 122, Article 4, page 660), and the Act of July 1, 1893, (Acts 1891-2-3 Chap. '243, page 1260), being Section 659 Ky. Statutes 1894, must be construed in connection with Section 202 of the Constitution, which provides that no foreign corporation shall be permitted to transact business in this State on terms more favorable than those enjoyed by doj mestic corporations; hence said Acts apply equally to foreign insurance companies as to domestic companies. ■</p> <p>2. Insurance, Life — Control and Regulation in General — Supervision By Public Officers.' — Where it is proposed by the Commissioner of Insurance to compile at a large expense a list of names and addresses of former policy holders of an insurance company 'with information respecting the policies held by said former policy-holders, the expense of such investigation to be paid by the company, the amount involved being small, and the purpose of the compilation being to file said list and information in the office of the Commissioner and the result of said filing being the undoubted assertion of alleged contractual rights by said former policy-holders, such investigation and compilation ■being neither necessary nor justified, upon broad grounds of equity should be restrained.</p>

<p>any objection offered to its introduction.</p> <p>1. Land — Action to Recover Land and Value of Timber — Commissioner’s Deed — Admissibility- of. — In an action to recover land and tne value of timber cut from it, it was error, at the conclusion of plaintiff’s" testimony, to peremptorily instruct the jury to find for defendants on the ground that the commissioner’s deed introduced was inadmissible for the reason that it was not endorsed, “examined and approved” by the court, when it had been introduced without objection to it. The ruling of the court in disregarding it would have been proper had there been</p> <p>2. Land — Action to Recover Land and for Value of Timber Taken —Evidence.—From subsequent conveyances three-fourths of the land descended to plaintiffs and they made out a case for three-fourths of the timber sufficient to put defendants upon their defense and the case should have gone to the jury, although plaintiffs may have to resort to another action for division of the land. While defendants as tenants in common, might hold possession until partition, yet, if they commit waste they must respond for a proportional part to the other co-parcener.</p>

<p>1. Schools — Provision as to Discipline — Violation of by Student — ■ Hazing — Action by Parent to Recover Tuition Paid Following Expulsion of Son — Counterclaim.—In an action by a father to recover tuition paid for his son following the son’s expulsion from school after having been found guilty of hazing, the counterclaim for the unpaid tuition for the scholastic year was properly disallowed, but the father having entered the boy for the school term, paying in advance $200.00, he obligated himself for so much of that term as that sum would pay, and the boy by his conduct having forfeited his right to remain in school, thereby depriving the school from carrying out its contract, the father is not entitled to recover any portion of the amount paid.</p> <p>2. Schools — Hazing—Expulsion.—The conduct of the student in being guilty of hazing was in violation of the published rules with which he was familiar, and was of such a character as to warrant expulsion.</p> <p>3. 'Schools — Hazing—Instructions.—It was error to submit to the jury the question as to whether the regulation with reference to hazing was just or reasonable, or the abstract question as to whether there was just or reasonable cause for the dismissal. The court being of the opinion that the rule was reasonable, it became the province of the jury to try the question as to the boy’s guilt, and as to this there was no question, for the facts were admitted.</p>

<p>1. Criminal Law — Homicide—Evidence—Sufficiency.—On a trial for homicide, evidence examined and held sufficient to sustain a verdict of guilty.</p> <p>2. Evidence — -Hearsay.—On a trial for homicide, evidence that witness heard another person say that he committed the crime is hearsay, and was properly excluded.</p> <p>S. Homicide — Instructions—Accidental Killing. — Where on a trial for homicide, the instructions required the jury to believe beyond a reasonable doubt that the accused hilled the deceased, it it not error to “refuse an instruction on accidental killing based on evidence to the effect that the deceased was found dead in a tunnel with a rock on his shoulders, and that the tunnel was dangerous and that rocks frequently fell, and that cars loaded with rails passed' through the tunnel and the rails would be about the height of a man’s shoulder standing on the side of the track.</p> <p>4. Instructions — Reasonable Doubt — Section 238, Criminal Code.— Where a reasonable doubt instruction follows substantially the language of section 238 of the Criminal Code, it is not error to refuse an instruction to the effect that "the law presumes the innocence of the defendant until his guilt has been established by the evidence to the exclusion of a reasonable doubt, and it is the duty of the jury, if it can reasonably do so, to reconcile all the facts and circumstances proven by the evidence in this case with that presumption, and if upon the whole case the jury should have a reasonable doubt of the defendant’s having been proven guilty, then they should find him not guilty.”</p>

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

<p>1. Carriers — Passengers—Personal Injuries — Damages.—A verdict of ?1,500 for injuries received by a passenger who was struck on .the knee by a mail bag thrown from a passenger train, held not so excessive as to warrant the court in disturbing it on the ground that it indicated passion or prejudice.</p> <p>2. Carriers — Passengers—Personal Injuries — Care Required and Liability of Carrier in General. — Where plaintiff was injured by being struck by a mail bag thrown from a passenger train as it was being drawn into the station, plaintiff being there for the purpose of boarding the same train from which the mail bag was thrown, it would seem that he was entitled to have exercised in his behalf the same high degree of care as is owed by the carrier to passengers while actually engaged in alighting from or boarding trains or while in transit thereon. At least, under the facts proven, an instruction to that effect was not prejudicial.</p> <p>3. Trial — Argument of Counsel — Scope and Effect of Opening Statement. — Where in an action for injuries received by a passenger by being struck by a mail bag thrown from a passenger train which the passenger was about to board, his attorney in the opening statement said to the jury that plaintiff had received a letter from the chief law agent of defendant company in which it was said that plaintiff was a passenger upon one of defendant company’s trains and was injured by some heavy substance being thrown therefrom, and when the letter was offered in evidence, the court sustained objection to its intro, duction; held, that in view of the fact tliat there was no serious denial of the fact that plaintiff was struck by the mail bag, the statement of counsel was not prejudicial although improper.</p>

<p>1. Master and Servant — Safe Place to Work — Assumption of Risk. —One employed to do repair work on a roof and the guttering thereof knows in advance that his employer is not undertaking to furnish him a reasonably safe place to work, because the place being out of repair is necessarily in some measure dangerous, and the employe necessarily assumes the additional risk growing out of the then condition of the place.</p> <p>2. Master and Servant — Assumption of Risk — Notice—The allegation that he was only employed to repair certain places in the roof or guttering, and was not employed to repair the particular guttering or appliance which gave way with him and caused him to fall, cannot relieve the employe from the assumption of the added risk. The fact that some parts of the roof and guttering were out of repair was notice to him that it was all more or less dangerous.</p>

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

<p>1. Malicious Prosecution — Action, for. — In an action for damages for malicious prosecution, an examination of the evidence discloses the fact that there was not only want of probable cause, but no excuse for the arrest of plaintiff.</p> <p>2. Malicious Prosecution — Probable Cause. — The mere fact that employees of a store may have believed that articles of merchandise had from time to time been stolen, did not justify them in seeking to make' an example of one in an effort to deter others from committing the offense. In such case there must be probable cause to excuse the prosecution.</p> <p>3. Malicious Prosecution — Extent of Inquiry. — The sole inquiry in this case is whether the party accused was finally discharged, and whether the person instigating the prosecution was actuated by malice,, and if he had probable cause for preferring the charge.</p>

<p>1. Contracts — Sales—Offer of Bargain Imposes No Obligation Until Accepted — It is a well known principle of the law of contracts that an offer of a bargain by one person to another imposes no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification or departure from those terms invalidates the offer unless the same be agreed to by the person who made it. Until the terms of the agreement have been assented to by both parties, negotiation is open and imposes no obligation upon either. An attempted acceptance which seeks to modify one or more terms of the offer is of no legal effect as an acceptance. It is really a rejection of the offer and a proposition in lieu of the original offer, and must be accepted by the party making the original offer in order to constitute an original agreement.</p> <p>2. Contracts — Tentative Agreement — Change of By Subsequent Writing — Effect of. — Where the prospective vendor, after the execution of a tentative sales agreement which left open certain points for subsequent agreement, submits to the prospective vendee a draught of a contract which changes the person of the vendor, the means of securing deferred payments, and deprives the vendee of the choice among articles of similar kind, this is in legal effect an abandonment by the vendor of the original agreement and a proposition of a different agreement, which requires an unqualified acceptance on the part of the vendee to constitute a binding contract.</p> <p>3. Contracts — Acceptance of Substituted Contract — What Not An Acceptance. — Failure or omission to reject an offer is not equivalent to an acceptance; nor is the fact that the vendee may have mentioned, as a reason for not accepting the substituted agreement, only one of the grounds upon which he might have objected to it, to he regarded as a waiver of such other ohjections.</p>

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

<p>1. Personal Injuries — Pleading—Variance.—In this action for Personal injuries there was not such a variance between the pleading and proof as to render the variance fatal. Under the provisions of section 129 Civil Code, if it appeared to defendant that there was such variance, it should have shown that fact to the satisfaction of the court so that the pleading could have been amended.</p> <p>2. Personal Injuries — Action for Damages — Verdict—Excessive.—In an action for personal injuries where plaintiff’s jaw was fractured, a tooth knocked out, two others loosened so that they had to be drawn, and in consequence of his suffering he lost work from May until September, and certain numbness or paralysis because of the fracture, a verdict of $1,100.00 cannot be said to be excessive.</p> <p>3. Personal Injuries — Negligence of Fellow Servants. — The contention of defendant that if there was any negligence it was that of a feuow servant, is not sustained by the evidence.</p>

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

<p>1. Railroads — Right To Occupy Own Right oí Way With Sidetracks — Owners of Adjoining Land Cannot Object. — The right of a railroad company to construct a sidetrack on its own right of way cannot be questioned by the owner of an adjoining lot, although in order to construct the sidetrack the right of way was so elevated as to prevent ingress and egress to. and from such lot from the right of way. And if, as claimed by the lot owner, he and the public generally had for a long time, evefi more than fifteen years, be'en accustomed to use the railroad company’s right of way occupied by the sidetrack, such use was purely permissive and did not ripen into a right by mere lapse of time; therefore, the interference with this user, caused by the construction of the sidetrack, did not confer any right of action upon the lot owner for its loss or for being deprived of the right of entrance to his lot from the railroad right of way.</p> <p>2. Railroads — Injury to Real Property from Train Smoke and Cinders — When Damages Recoverable For. — Where a railroad throws smoke and cinders upon the property of another, it is a trespass upon the property, and this is an injury to the property, for which, by the express mandate of the Constitution (Sec. 242), compensation must be made. And if the injury thus inflicted ibe caused by smoke and cinders from trains standing or moving on a sidetrack, the owner of the property may recover damages therefor, if he was the owner thereof when the sidetrack was constructed.</p> <p>3. Railroads — Damages To Adjoining Property from Construction of Sidetrack — Measure of. — Where in an action for damages for injury to adjoining property caused by the construction of a sidetrack, the injuries sued for resulted from the throwing of smoke and cinders by trains in great and unusual quantities upon the property, the cutting of a tree thereon, and the flooding of the property by obstructing the drainage of surface water, the measure of damages is the diminution, if any, in the fair market value of the property from these causes; and the one recovery must suffice.</p>

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

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

<p>1. Negligencé — Dangerous Substances. — It is the duty of persons who keep in their possession or employ in their business that which unless carefully guarded and cautiously used, is dangerous to others, to exercise such care to see that the dangerous agency is so kept and used as not to inflict injury upon others, as an ordinarily prudent person would be expected to exercise under the same or similar circumstances. And, where a railroad company uses dynamite for blasting purposes in connection with the construction of a concrete abutment, it is charged with the duty of caring for the dynamite supply when not in use as well as when it is in use.</p> <p>2. Negligence — Proximate Cause. — Where a portion of dynamite • became imbedded and concealed in pitch in a bucket, and the bucket was afterward used as a receptacle for burning rags, . and the pitch ignited, whereupon the bucket was thrown out alongside camp cars occupied by the workmen engaged in construction work, and there exploded, injuring one of the members of the crew who was returning to the cars, the proximate cause of his Injury was the permitting of the dynamite to get in the bucket, not the act of using the bucket as a receptacle for burning rags, although through the latter act the original act became operative to produce the injuries.</p> <p>3. Negligence — Consequences That Should Have been Foreseen.— A wrong-doer is not excused because he could not foresee the particular injury or harm which does actually result from his wrongful act.</p> <p>4. Master and Servant — Master’s Liabilities For Injuries To Servant — Delegation of Duty. — The duty of a master to care for a dangerous agency such as dynamite, cannot be delegated. The servant to whom is entrusted the care of the dynamite acts in the performance of such duty, in the place of the mast-v</p>

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

<p>1. Ejectment — Patent—Exclusions—Evidence.—In an action of ejectment, evidence for plaintiffs, that the land in controversy was not covered by any of the exclusions in the patent under which they claimed, held sufficient to take the case to the jury.</p> <p>2. Ejectment — Adverse Possession — Well Marked Boundary. — Evidence. — In an action of ejectment, evidence examined and held insufficint to show that defendant claimed to a well marked boundary.</p> <p>2. Ejectment — Adverse Possession — Instruction.—In an instruction on adverse possession, it is better to use the expression, “actual, open, notorious, continuous, adverse and peaceable possession.”</p> <p>4. Champerty — Deed—Adverse Possession.' — To render a conveyance ' champertous it is necessary pot only that the land be claimed to a wiell defined or well marked boundary, but the claimant’s possession at the time of the conveyance must have been an actual adverse possession, manifested by some act or fact sufficient to indicate to others that he in fact had the possession, and that the ousted claimant had been dispossessed.</p>

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

<p>1. New Trial — Grounds—Agreement To Settle' — Violation—Evidence. — While ordinarily a new trial will be granted where a party has been misled by the statements or conduct of the opposing party or his counsel, and on that account failed to make a defense, yet where the evidence merely shows an expressed wish on the part of the complaining party to settle out of court, without a definite agreement by both parties, the action of the trial court in refusing a new trial will not be disturbed.</p> <p>2. Pleading — 'Sufficiency—Judgment.—In an action by plaintiffs to recover of defendants an over-payment on the purchase price of certain logs which it was alleged defendants failed to deliver „ according to contract; held, that a judgment in favor of plaintiffs was supported by the pleadings.</p>

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

<p>1. Appeal — Failure to Point Out Errors in Briefs. — The court is not inclined to hunt for errors in the record, and if none are pointed out by the briefs, it will be assumed that no errors exist, or that they have been waived.</p> <p>2. Attorney and Client — Acquiescence by Client in Attorney’s Conduct. — Acquiescence by a client in the attorney’s conduct in representing him may supply the place of a request to act, provided the case is such that the client might reasonably know that he would be expected to pay for the work; and the same would be true if the client by his acts induced the attorney tq' believe that his services were desired.</p>

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

<p>1. Master and Servant — Personal Injuries — Verdict—Evidence-Sufficiency. — In an action by a servant against his master for damages for personal injuries, evidence examined, and held that a verdict in his favor, was not flagrantly against the evidence.</p> <p>2. Verdict — Evidence—Sufficiency.—The finding of the jury on questions of fact will not be disturbed unless palpably or flagrantly against the evidence.</p>

<p>1. Water Company — Contract with City to Supply Water — Fire Protection — Suit by Citizen. — Where a water company has contracted with the city to furnish a supply of water sufficient to furnish protection to the inhabitants and the property of the city against fire, the company must answer in damages to a citizen for loss by fire resulting from failure or refusal to perform its contract; and he may sue the water company without joining the city as a party defendant.</p> <p>2. Water Company — Contract with City to Supply Water — Fire Protection — Company’s Liability. — Under a contract whereby a water company agrees to furnish and set 100 fire hydrants to be rented by the city, and to be under the charge and control of the chief of the fire department, or in his absence the officer in charge' thereof, and providing that he may inspect the hydrants, and making it his duty to give to the company notice in writing specnymg the hydrants out of working order, and imposing on the company the obligation, after receipt of such notice, to place such hydrants in effective working order with reasonable dispatch, no duty of repairing the hydrants is imposed upon the company until after such notice has been given.</p> <p>3. Water Company — Contract with City to Supply Water — Fire Protection — Contract with City — Company’s Liability — Petition—■ Demurrer. — Where under a contract with a city, a water company is under no obligation to repair a fire hydrant until notified in writing by the city’s fire department, a petition, in an action by a citizen to recover the value of personal property destroyed by fire, based on a failure to repair one of the hy* drants, which fails to allege a failure to repair after such notice was given, is not good on demurrer.</p>

<p>1. Ejectment — Patents—Exclusions—Evidence.—In an action of ejectment, evidence for the plaintiffs examined and held sufficient to show that the land in' controversy was not covered by the exclusions in the patent under which they claimed.</p> <p>2. Ejectment — Adverse Possession — Continuity.—In asserting a title by adverse possession, continuity of possession must be shown.</p> <p>3. Ejectment — Adverse Possession — 'Continuity—Evidence.—In an . action in ejectment, evidence examined and held insufficient ! to show continuity of possession on the part of the claimant 'by adverse possession.</p> <p>i. Ejectment — Adverse 'Possession — Well Marked Boundary — Evidence. — in an action in ejectment, evidence examined and held insufficient to show that defendant claimed to. a well marked boundary.</p> <p>5. Ejectment — Adverse Possession — Instructions.—An instruction on adverse possession authorizing a finding for defendant if he “held and claimed the land in controversy to well marked and clearly defined lines and boundaries, openly, notoriously, exclusively, contin lously, uninterruptedly, visibly and adversely,” is not proper; the expression, “actual, open, notorious, continuous, adverse and peaceable possession” should be used.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch Number One.)</p>

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

<p>■1. Principal and Surety — Husband and Wife — Notes—Liability of Wife — Section 2127, Kentucky Statutes. — In determining whether a married woman is principal or surety on a note, tbe courts will scrutinize the entire transaction, and regard the substance and not the form, and if it appear that the form of the transaction was a mere device or subterfuge to evade the statute, and that the wife was a mere surety in fact, she will not be held liable.</p> <p>2. Principal and Surety — Husband and Wife — Notes—Liability of Wife — Section 2127, Kentucky Statutes — Evidence.—In an action to recover on two notes executed by two married women as consideration for a business which, by certain contracts was sold and transferred to them, evidence examined, and held that H), the brother-in-law of one and husband of the other, was the real purchaser, and that plaintiff knew this fact, and that the contracts were simply a device to evade Section 2127, Kentucky Statutes, providing that no part of a married woman’s estate shall be subjected to the payment or satisfaction of any liability, upon a contract made after marriage, to answer for the debt, default or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance.</p>

<p>1. Municipal Corporations — Removal of Trees — Obstruction of Street. — Where it is the duty of a contractor under his contract with the city to remove certain trees in the changing of the grade to put down a pavement, and after the trees are felled and the property owner asserts title to the logs coming out of the trees, hut does not undertake to' interfere with the duty of the contractor under his contract to remove them, the property holder is not liable to the city in an indemnity action against the property owner where the city has been required to pay damages resulting from the obstruction of the street by the logs.</p> <p>2. Municipal Corporations — Removal of Trees — Change of Grade of Street — Obstruction.—The contractor, whose duty it is under his contract to remove the trees cut down in changing the grade 'of a street, who .has piled the logs coming from the trees out in the street, and refuses to remove the same when notified so to” do by the city, must indemnify the city where it has been held liable in damages by reason of the obstruction, the primary negligence being that of the contractor.</p> <p>3. Torts — Tort Feasors — Rule as to Indemnity Among. — While it is the general rule that there can he no indemnity as among tort feasors, where they were not in fault to the same degree, and the fault of the one from whom the indemnity is sought was the primary and efficient cause of the injury for which the other has been held liable, the right of indemnity exists.</p> <p>4. Torts — Tort Feasors — Liability of One for Wrongful Act of Another. — Where the undisputed evidence shows that one tort feasor has been held liable in damages by reason of the primarily wrongful act of another, in which wrongful act he. was not an active participant, he is entitled to a peremptory instruction as against the original wrong-doer.</p>

<p>1. Easements — Passway—Right To By Prescription — Presumption— ■Limitation. — A right by prescription to a passway is founded upon the presumption of a grant; such presumption arising from the adverse, uninterrupted and continuous user of the passway, by the person asserting the prescriptional right thereto, for the statutory period of limitation.</p> <p>2. Easements — Evidence—Sufficiency Of To Establish Right. — The evidence presented by the record being sufficient to show an uninterrupted, adverse and continuous user of the passway by appellees, as a matter of right, for more than fifteen years before its attempted obstruction by appellant, held — that the judgment of the chancellor, quieting their right to and possession of the passway, will not be disturbed.</p>

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

<p>1. Insurance, Life — Fraternal Insurance Society — Compensation for New Applications for Membership — Section 679 Kentucky Statutes. —The fact that a fraternal insurance society gives to each and all of its members, and to no one else, a small prize or compensation for procuring new applications for membership, is not such payment of a commission or employment of an agent as will take from such society its fraternal character under the provisions of Section 679 of the Kentucky Statutes as amended by the Act of 1906.</p> <p>2. Insurance, (Life — Relationship of Debtor and Creditor. — A creditor of a policy holder is not a, “dependent” upon the policyholder merely because of the relationship of debtor and creditor between them.</p>

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

<p>1 .Vendor and Purchaser — Contract of Sale — Finding of Trial Court —Evidence.—Where in an action by a vendor against a purchaser to recover the purchase price of certain land sold, the purchaser pleaded the abandonment of the original contract of sale, and relied on a specific agreement by the vendor to accept a less sum, evidence examined and held to sustain the finding of the trial court that there was no subsequent agreement to accept less than the original contract price.</p> <p>2. Fraudulent Conveyances — Rights of Grantor. — Equity will not de^ cree a restoration of property conveyed by the grantor for the fraudulent purpose of defeating a creditor.</p> <p>8. Fraudulent Conveyances — Rights of Subsequent Vendee. — Where the contract of sale has been executed and the purchaser has .acquired title, and the transaction is free from fraud, the purchaser capnot refuse payment of the purchase price merely because, several years before, his vendor had conveyed the property to his nephew for the fraudulent purpose of defeating his creditors.</p> <p>4. Pleading — Counterclaim—Set-off—Answer—Insufficiency of Allegations — Civil Code, See. 97, Sub-sec. 4. — Although an answer does not contain the words “answer and counterclaim” or “answer and set-off,” yet if the facts alleged are sufficient to constitute an. answer and counterclaim or an answer and set-off, and plaintiff joins issue, thereon, this will constitute a waiver of his right to object1 to the pleading because of its failure to contain the words “answer and counterclaim” or "answer and set-off.”</p> <p>5. Pleading — Counterclaim—Set-off—Answer—Insufficiency of Allegations — Proof—Judgment.—Where in an action to recover the purchase price of land the answer does not contain the words “answer and counterclaim,” or “answer and set-off,” and the facts alleged do not constitute an answer and counterclaim or an answer and set-off or a plea of payment, and the proof does not show payment or a valid set-off or counterclaim, it was error to abate the purchase price by certain sums representing damages to the land by the grantor’s tenant and rent which the grantor was to receive,</p>

<p>1. New Trial — Motion and Grounds for Must Be Filed in Court and Within Three Days. — A motion and grounds for a new trial must he filed in court and within three days from the day the decision complained of is rendered, and if the motion for a new trial is not filed within this time, the situation will he the same as if no grounds for a new trial had been filed.</p> <p>2. New Trial — Computation of Time — Exclusion of Days. — In computing the three days allowed, Sundays and days on which the court is not in session and does not convene, will be excluded, as the code contemplates three juridical days, or days in which the court is in session, and the day on which the decision is entered and the day on which the motion and grounds for a new trial is filed are both to be computed. For example, if the decision is entered on Thursday, the 12th, the motion and grounds for a new trial must be filed in court on Saturday, the 14th, if the court is in session on Friday and Saturday.</p> <p>3. New Trial — -Motion and Grounds for — Effect of Failure to File in Time. — When the motion and grounds for a new trial is not filed in time, the judgment will be affirmed on appeal if the pleadings support the judgment.</p> <p>4. New Trial — Motion and Grounds for — Peremptory Instruction.— A motion and grounds for a new trial is necessary to enable this court to review the action of the lower court in sustaining a peremptory instruction.</p>

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

<p>Forcible Entry and Detainer1 — Traverse—Trial of in Circuit Court. — Tbe traverser is entitled to have a trial of the traverse in the circuit court, although while the traverse is pending in the circuit court there may be a judgment rendered in that court in another case between the same parties awarding to the traversee the possession of the premises involved in the forcible detainer proceeding.</p>

<p>Contracts — Construction.—The owner of a half interest in a pair of scales for weighing live stock at a railroad station sold his half interest to the owner of the other half interest, hut reserved the right to weigh free any stock from his farms so long as the scales were kept at the railroad station; the contract further provided that should the purchaser refuse to weigh such stock free, the half interest sold should revert to the seller thereof. Held, that the court will not enforce the forfeiture claimed, hut will compel performance of the contract hy mandatory injunction.</p>

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

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

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

<p>Homestead — Rights of Surviving Wife — Termination by Marriage. —Under Section 1707, Kentucky Statutes, providing that the homestead shall he for the use of the widow “so long as she occupies the same,” and that the unmarried infant children of the husband shall he entitled to a joint occupancy with the widow until the youngest child arrives at full age; the widow’s homestead right terminates on her re-marriage after her husband’s death, and permanent removal from the home of her deceased husband to the home of her new husband, although she continues to hold the home of her deceased husband by tenant.</p>

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

<p>1. Criminal Law — Aider and Abettor — What Indictment Should Charge. — In order to convict one of aiding and abetting another in a crime, it is necessary either to jointly charge the principal with him in the indictment if the principal be known, or, if he be unknown that fact should appear, and the facts of aiding and abetting should be sufficiently set forth.</p> <p>2. Criminal Law — Aider and Abettor — When Instruction Authorizing Conviction Is Erroneous. — Where an indictment charges the defendant only as the principal in the crime, an instruction authorizing his conviction as an aider and abettor, is erroneous.</p>

<p>1. Homicide — Murder—In the Absence of Eye-witnesses How Guilt of Accused May Be Shown. — Where it is shown by the evidence that the death of deceased was caused by wounds appearing upon his body; that the wotfnds were inflicted by an edged instrument, such as a pocket knife, in the hands of a person of accused’s physical strength and capacity; added to which is his confession ' that the wounds were inflicted by him, and the production by him of the knife admittedly used in inflicting them, upon the blade of which blood was discovered, such evidence was sufficient to authorize the jury to return a verdict finding the accused guilty of murder; it being apparent from the evidence that the accused’s confession of- his guilt was-voluntarily made.</p> <p>2. Homicide — Jury—Province of to Determine Degree of Accused’s Offense as Well as His Guilt or Innocence. — Where it is manifest from the evidence in a case of homicide that the killing was done by the accused with malice aforethought or in sudden heat or passion, it being the province of the jury to determine the degree of his offense as well as the question of his guilt or innocence, their verdict finding him guilty of murder will not be disturbed if there was any evidence tending to show that the killing was maliciously done; although there may also have been some evidence from which the jury might reasonably have found that the killing was voluntary manslaughter.</p> <p>3 Homicide — Instructions—Involuntary Manslaughter — When Instruction on Unnecessary. — Although in a case, of homicide to which there are no eye-witnesses save the accused and his victim, it is ordinarily necessary for the trial court to instruct the jury upon all the law of homicide that might be given upon any state of case, this rule does not apply to a case in which it is shown that the homicide could not have occurred in a particular way therefore, where it is manifest from the evidence that the killing was not involuntary manslaughter, it was not error for the trial court to refuse an instruction on the law of involuntary manslaughter. In this case, as the jury were instructed as to murder, voluntary manslaughter, self defense, and reasonable doubt, they were given all the law necessary for their guidance in arriving at a verdict.</p>

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

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

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

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

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

<p>Trespass — Burden of Proof. — When a party sues for trespass committed upon his premises and the defendant denies that an entry was made upon the premises of the plaintiff, the burden is on the plaintiff to show that he was the owner of or rightfully in the possession of the premises entered upon.</p>

<p>1. Criminal Law — Appeal by Commonwealth. — When there has been a mis-trial or when a new trial has been granted to the defendant, the Commonwealth may bring to this court a full and accurate transcript of all orders, proceedings, evidence and instructions for the purpose of having any errors committed by the trial court corrected, so that the law of the case may be settled by this court for the benefit of the trial court on another trial, and to the end that there may be a uniform administration of the criminal laws of the State.</p> <p>2. Criminal Law — Appeal by Commonwealth — Brief to be Filed — ■ Duty of Commonwealth’s Attorney. — When the Commonwealth’s Attorney believes that the trial court has committed error to the prejudice of the Commonwealth, and desires to have these alleged •errors reviewed, he should see to it that a complete record is brought up and should either file a brief in this court directing the attention of the court to the errors complained of or advise the Attorney General in respect to them, so that he may be prepared to file a brief that will be of some assistance to the court. If this practice is not observed, the appeal will be dismissed.</p>

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

<p>Evidence — Hearsay.—Where there was an issue of fact as to whether a landlord desired to keep in his house or get rid of another person who was occupying a room in’ it, it was not competent to prove a conversation between an agent of the landlord and á police officer at the police station in reference to securing the services of the police to remove the tenant.</p>

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

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

<p>Master and Servant — When Servant May Rely Upon Presumed Knowledge of Master. — Where a workman is at work in a place known to be more or less dangerous, but is working under the immediate or direct orders of his superior, and that superior after an investigation expresses an opinion that the place is safe, or directs him to proceed with the work, the workman has a right to rely upon the presumed superior knowledge of the master, and proceed with the work, unless the danger is so obvious as that no reasonable man in the exercise of fair judgment for his own safety would continue to work in it even under the orders of his master.</p>

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

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

<p>1. Land — Sale of in Satisfaction of Lien Debts. — Sections 692 and 694, Civil Code, forbid the sale of indivisible real estate in satisfaction of lien debts that are due, subject to a superior lien debt which is not due.</p> <p>2. Land — When and How Sale To Be Made. — When there are several lien debts upon the same tract of land, whether held by the same or different persons, and whether of equal dignity or otherwise, if one or more of the lien debts be not due, and it is alleged in the petition or appears from the evidence in the record that the land is not susceptible of advantageous division, no part of it should be ordered by the court to be sold, until all the lien debts become due.</p>

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

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

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

<p>Adverse Possession — Nature and Requisites — Hostile Character of Possession — Entry and Possession by Mistake. — Where the occupation of land is by a mere mistake and with no intention on the part of the occupant to claim as his own, land which does not belong to him, but he intends to claim only to the true line wherever it may be, the holding is not adverse, but where a person, acting under a mistake as to the true boundary between his land and that of another, takes possession of the land of another, believing it to be his own, up to a mistaken line, claiming title to it and so holding it, the holding is adverse, and if continued for the requisite period, will ripen into title.</p>

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

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

<p>1. Criminal Law — Sufficiency of Evidence to Support Verdict. — When the evidence is conflicting and it becomes our duty to review the finding of the jury upon questions of fact, we will not disturb their conclusion, when no error of law has been committed and no facts appear in the record, tending to show that the complaining party did not have a fair trial, on the ground that the weight of the evidence is against the verdict.</p> <p>2. Criminal Law — New Trial — Newly Discovered Evidence. — A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative.</p>

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

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

<p>1. Carriers — Common. Carrier — What Is — Contracts Between Common Carriers in Restraint of Trade. — A company, whether incorporated or a copartnership, which engages in the business of operating an omnious line for hauling passengers and wagons for hauling freight, either or both, is a common carrier in the mean- . ing of section 201, Constitution; and where two of such companies in tne same place enter into a contract whereby one of them, in ■consideration of a sum paid it by the other and the undertaking of the latter to confine its business to the hauling of passengers alone, and abandon and turn over to the former the business of hauling freight alone, and the former obligates itself to quit the business of hauling passengers and confine itself to the hauling of freight alone, such a contract is in restraint of trade, contrary to public policy and violative of Section 201, Constitution.</p> <p>2. Carriers — Effect of Such a Contract — How Detrimental to Public Good. — Such a contract is not to be regarded as a contract made for the protection of a private right which it creates, with an incidental, partial and reasonable restraint of trade, but is one made between common carriers with a direct purpose to restrain trade and, create a monopoly, detrimental to the public good, in favor of each of the contracting parties; as it would put in the hands of one of the parties, exclusively, the entire business of hauling passengers, and of the other, exclusively, the entire business of hauling freight, in the same community.</p> <p>'3. Carriers — Neither Party Entitled to Relief Against Such a contract. — In view of its illegality such a contract will not be enforced or rescinded by the court at the suit of either party thereto; nor will the court award to either party damages against the other for its breach. The contract being against public policy and the parties in pari delicto, no right of action can be predicated thereon by either of them. They will be left by the court where their own conduct placed them.</p>

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

<p>1. Appeal — Review.—An error oecuring at the trial cannot be reviewed unless it be made a ground for a new trial.</p> <p>2. Appeal. — A question not raised upon the trial cannot be considered upon appeal.</p> <p>3. Land — Removal of Earth Upon One’s Own Land to Injuries of Adjoining Land Owner — Land Owner. — The owner of land adjacent to the lands of another is liable for damages for removing the earth upon his own land so as to withdraw the natural support of his neighbor’s soil.</p> <p>4. Railroads — Removal of Earth Upon Land of Another. — Under the Constitution of 1891, the rule'above announced applies to a railroad company in the use of its right of way; the railroad company occupying the same relation as any other adjacent proprietor when the deed under which it holds does not confer any larger right than usually follows from the sale and purchase of land under ordinary deeds.</p>

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

<p>1. Architect — Liability for Defective Plans. — While an architect is presumed to possess the skill and ability necessary for the practice of his profession, and is liable for damages occasioned by defective plans, yet he does not undertake that his plans will be absolutely perfect, and is liable only for a failure to exercise reasonable skill in the preparation of his plans.</p> <p>2. Architect — Superintendence of Building — Liability.—Where an architect is employed to superintend the construction of a building, he is not liable at all hazards for every defect in its construction, hut is required to use only reasonable care and diligence in seeing that the work is properly done.</p> <p>3. Architect — Superintendence of Building — Liability—Question for Jury. — The question whether or not an architect has used reasonable care and diligence in superintending the construction of a building is for the jury, where it appears merely that some of the material is defective or that some of the work is not done in a workmanlike manner.</p> <p>4. Architect — Action to Recover for Services — Evidence.—In an action by an architect to recover a balance due for his services in drawing the plans and superintending the construction of defendants’ residence, where defendants, by counterclaim, sought to recover damages alleged to have resulted from defective plans or because of plaintiff’s negligent superintendence of the construction of the building, held, that a verdict and judgment in favor of plaintiff was not flagrantly against the evidence.</p>

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

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

<p>1, Homicide — Dying Declarations — Withdrawal of Statement of Deceased from Jury. — Tlie principle upon which dying declarations are admitted is that they are made in extremity, when the party is at the point of death and when every hope of this world is gone and when the mind is induced by the most powerful considerations to speak the truth, and where a statement in the form of such declaration was allowed to go to the jury, but an attending physician testified that he thought perhaps the shot had not penetrated the bowels and was not serious, and he thought he so notified deceased, the trial court did not err in withdrawing the statement.</p> <p>2. Homicide — 'Dying Declarations — Procedure to Establish Admissibility. — In determining whether evidence of a dying declaration is competent, it is the safer practice for the court to hear all of it in advance of its introduction before the jury and in their absence, in order that they may get no impression from it that would be prejudicial to the defendant, if the court should rule it incompetent and reject it.</p>

<p>1. False Pretenses — Obtaining Signature to Note. — Where a person, by falsely representing himself to be the agent of an insurance company, obtained from the person to whom the false representation was made a promissory note, with, the intent to commit a fraud upon the maker of the note, he was guilty of an offense under Section 1208 of the Kentucky Statutes.</p> <p>2. False Pretenses — Obtaining Signature to Note — Sufficiency of Indictment. — An indictment, charging that “A,” by falsely representing himself to be the agent of a life insurance company and .authorized to sell its stock, when in fact he was not, and on the faith of this representation, which was believed by the maker of the note, secured his signature thereto, which he could not have done except for the fact that the maker believed the representations to be true, and further charging that the representations were made with an intent to commit a fraud upon the maker of the note, was a good indictment under the statute. When, by false statements, the signature to any instrument, the false making of which would be a forgery, is secured by fraud, this constitutes an offense against the statute, without regard to the value of the instrument or the purpose for which the fraud was practiced, and without reference to whether the party defrauded actually or ultimately suffered loss.</p> <p>3. False Pretenses — Evidence Not Sufficient to Sustain Indictment. —Where a person, representing himself to be the agent of an insurance company and authorized to sell its stock, delivered the stock that he agreed to sell and otherwise did all that he agreed to do, the court properly directed a verdict for the defendant, as the evidence showed that the statement that he was authorized by the company as an agent to sell the stock, was substantially true.</p>

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

<p>1. Parties — Infant Suing by Next Friend — Pleading.—In an action by an infant for personal injuries tbe contention that tbe suit is not in the name of the infant is not sustained, for the reason that the caption shows the plaintiff to be the infant, by his father, and throughout the petition the infant is treated as the real plaintiff, although the petition begins “The plaintiff, Henry Case, who sues,” &c. The caption meets the requirement that the suit shall be brought in the name of the next friend, and from the body of the petition no one can mistake its purpose to have recovery for the infant.</p> <p>'2. Personal Injuries — Action for Injuries Resulting from Being Ejected from Train — Instructions.-—In an action for personal injuries resulting from being ejected from a moving train, the instruction complained of did not assume that the Republican organization was in charge of the train. While it was made, a requisite by an instruction that the jury should believe from the evidence that appellee informed the servants of the railroad company that he was on the train by invitation of the Republican committee, this was erroneous, but the error was prejudicial to the infant rather than to the appellant. If he was ejected while the train was in motion, appellant should respond in damages, whether he was on the train by invitation or not.</p>

<p>1. Forcible Entry and Detainer — Warrant—Appeal.—In an action of forcible detainer, a judgment 'will not be reversed for failure to adjudge a party guilty of detaining certain parts of the premises which the warrant does not charge him with detaining.</p> <p>2. Forcible Entry and Detainer — Issue Raised — Possession.—A proceeding of forcible detainer raises no issue except that of possession, and is not a remedy that extends to other matters of dispute between the parties.</p>

<p>1. Municipal Corporations — Construction of Streets — Exercise of Ordinary Care by Persons Using Streets. — It is the duty of a municipal corporation to exercise ordinary care to construct and maintain its streets in a reasonably safe condition for travel 'by persons using it in the usual way, and while exercising ordinary care; and it is the duty of the traveller to exercise ordinary care for his own protection and safety.</p> <p>2. Municipal Corporations — Defect in Street — Injury to Traveller W]hile Using Street. — Where a city permits a hole from two to ten inches deep to remain in its street after it could have known of the existence of the hole by the exercise of ordinary care, and a person travelling upon the street is injured by driving into the hole, the city is liable in damages.</p> <p>3. Municipal Corporations — Excavation in Street by Gas Company —'When Company Not Liable for Injury to Traveller. — Where a gas company excavated a hole in a street under the supervision of the city, which required the company to fill the hole and leave it for the city, by its own servants and employees, to re-surface the street over the excavation, and the company completed its work, leaving it for the city to re-surface the excavation, the company was not liable to a traveller who subsequently was injured by striking the hole.</p>

<p>1. Municipal Corporations — City of Fifth Class — Notice of Election To Create Indebtedness — -How Published. — As Section 3637, subsection 3, Kentucky Statutes, providing for the holding of an election in cities of the fifth class, with respect to creating an indebtedness by the issue of bonds, declares notice thereof “shall be published for at least two weeks in some newspaper published in or of general circulation in such town, or by posting written or printed notices at three or more public places in such town,” the council of such city may, under the discretion conferred by this provision, give the notice of such election either by publishing it in a newspaper of the character described, or by posting written or printed notices thereof at three or more public places in such town.</p> <p>2. Municipal Corporations — Election in a Fifth Class City as to Incurring Indebtedness — Vote Required To Authorize Incurring Indebtedness. — In order to authorize a city of the fifth class to incur the indebtedness contemplated by Section 157, Constitution, and Section 3637, subsection 3, Kentucky Statutes, it is necessary tbat two-thirds of the electors whose votes are cast on the question of incurring the indebtedness, shall vote in approval thereof.</p> <p>3. Municipal Corporations — Tax for Paying Interest on Bonds of City of Fifth Class, and to Provide a Sinking Fund for Their Redemption — When To Be Levied. — The levy of a tax to pay the first year’s annual interest on the bonds of a city of the fifth class, and to provide such year’s proportion of a sinking fund for their redemption, may be made by its council at any time before the issue and sale of the bonds; but a levy of such tax for any subsequent year for such purposes must be made by the council at the time at which taxes imposed by the city for other purposes are levied.</p>

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

<p>1. Judicial Sales — Grounds for Setting Aside — Inadequacy of Price — : Additional Circumstances — When Sufficient. — While mere inadequacy of price, or the offer of an advanced bid, are not sufficient grounds for setting aside a judicial sale, yet where the price is grossly inadequate, only slight additional circumstances are 'necessary.</p> <p>2. Judicial Sales — Grounds for Setting Aside — Inadequacy of Price —Additional Circumstances — Sufficiency.—Wjiere the purchase price of property sold at a judicial sale, is very much less than the property is actually worth, and one of the parties to the action relies on his attorney’s being present and representing him at the sale, but the attorney, because of illness, is unable to be present, it is not error to set the sale aside.</p>

<p>Consolidated Appeals from the Warren Circuit Court.</p>

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

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

<p>1. Master and Servant — Injuries—Actions— Instructions.— In an action for the death of a section hand sent by his foreman to flag trains coming south on a track which was being repaired and temporarily not in use, the court instructed the jury that a t train which passes up the track following the flagman should keep a lookout. Held, proper instruction. While it is true that as to flagmen no lookout duty is owed, even though such duty may be owed to others, yet, in operating a train over a track . . which has been temporarily withdrawn from service with notice to a flagman, in a place where a lookout duty is owed to others, a train owes a Ipokout duty to flagmen also, unless there has been notice to such flagman of until an ordinarily prudent person might reasonably have expected traffic to be resumed on said track.</p> <p>' 2. Negligence — Presumptions.—Negligence is not to be presumed, but it may be inferred. And when the question is one of negligence or no negligence, and. the evidence is equally consistent with either view,, the court should not submit the case to the jury. But where all the facts point to but one conclusion, there is no such equilibrium of evidence as to bring the case within the rule stated. . ,</p>

<p>1. Land — Parol Gift — Adverse Possession. — Where a father permits his son, or one person permits another as an accommodation to enter and occupy a house or land, without consideration, and under a verbal consent, no presumption of a gift arises from the mere act of taking possession of the property under this arrangement, nor will the person who enters into possession of the property be permitted to set up a title to it by adverse possession unless the intention to' claim it adversely is actually brought home to the donor by such acts or conduct on the part of the donee as would put him on notice that a hostile claim of title was being asserted, and this character of holding has continued for the requisite statutory period. In the absence of such acts or conduct as would furnish this notice of a hostile claim, the entry will be deemed amicable and the possession permissive.</p> <p>2. Land — Parol Gift or Purchase — Adverse Possession. — Where the entry is under an express unconditional gift or parol purchase, it is not necessary that the person in possession, in order to claim it, should openly assert his right to the property adversely or in. a notorious way, or do more than exercise such ordinary acts of ownership in connection with the property as are usually exercised by owners.</p> <p>3. Land — Parol Gift — Adverse Possession. — Where a person takes possession of land under a parol purchase or under an express unconditional gift, and holds and claims it as his own, his possession will be deemed adverse from the beginning, and if it is continued for the statutory period, it will ripen into a good title, and this upon the theory that it was intended by the vendor or donor at the time of the sale or gift that the possession should be adverse, and therefore he had all the time notice of the adverse holding. But, on the other hand, when the donee enters upon the possession of land merely through the generosity or kindness of the owner, unaccompanied by any express gift of the property, the entry will be deemed amicable and the holding permissive until the occupier asserts title in himself and this hostile claim of title is brought to the notice of the owner.</p>

<p>Pleading — Action on Note and Mortgage of Corporation — Question as to Execution of Note and Mortgage — Must Be Raised by Answer. — The defense to an action to recover on a promissory note based on the absence of an allegation that it was executed by a particular officer of a corporation cannot be raised by a de-' murrer. The question as to the particular officer signing the name of the corporation, or that he had authority to sign the name of the corporation, are clearly matters of defense, and if there was no authority for the execution of the note and mortgage, or if it was in any sense ultra vires, it should have been shown by answer.</p>

<p>1. Contracts — Certainty of Description of Subject-Matter — rSufficiency of Contract for Sale of Timber. — A contract involving the sale and purchase of a lot of ties, that described in a general way the territory from which the ties were to be produced, was not too indefinite or uncertain to be enforceable.</p> <p>2. Contracts — Timber Contract — Obligations of Parties. — Where a contract provided that “A” should deliver to “B” all the ties that he could manufacture in a certain described territory, and “B” agreed to take all the ties delivered by “A” at the place specified, “A” was bound to exercise reasonable diligence to deliver to “B” all the ties that could be produced and manufactured in the territory, and “B” was under obligation to take and pay for all the ties so delivered.</p> <p>3. Contracts — Measure of Damages for Breach of in Failing to Receive Timber. — Under a contract providing that “A" should take from “B” all the ties that he could manufacture and deliver at a certain place, the measure of damages “B” was entitled to recover on account of “A’s” failure to receive and pay for the ties so delivered or that could have been delivered, was the difference between the contract price and the market price of the ties at the place of delivery.</p>

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

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

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

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

<p>1. Vendor and Purchaser — Deficiency in Quantity of Land Sold— Abatement of Price — When Allowed. — In a sale and conveyance of land warranted by the vendor to contain sixty acres and described in the deed as sixty acres “more or less,” a deficiency of 18 2-5' acres will entitle the vendee to an abatement in the purchase price to the extent that the value of the 18 2-5 acres, if contained in the conveyance, would have borne to the entire sixty-acre tract.</p> <p>2. Vendor and Purchaser — When Deficiency Amounts to Ten Per Cent — Effect Of. — Where, in such sale, the deficiency amounts to ten per cent or more, the purchaser is entitled to be compensated therefor whether his purchase of the land was made by the acre or in gross; and whether the sale was effected through the fraud or mistake of the vendor; as in such case so great a deficit cannot be regarded as having been within the contemplation of the parties.</p> <p>3. Deeds — Quantity of Land — “More or Less.” — The words “more or less” in a deed relieve only from the necessity of exactness, and not from gross deficiency.</p>

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

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

<p>1. Municipal Corporations — Streets—Sidewalks—IDuty in Respect To. Cities and towns are udder a duty to exercise ordinary care to keep their streets and sidewalks and public places in a reasonably safe condition for public travel by persons exercising ordinary care for their own safety.</p> <p>2. Streets — Sidewalks—Barriers for Their Protection. — Where a street or sidewalk is built on an excavation, or ravine, or watercourse, or on a high, steep embankment, or at a place so dangerous that barriers should be erected to prevent a false step or movement from causing injury, municipalities are under a duty to protect such places by barriers or guards.</p> <p>3. Municipal Corporations — Streets—Sidewalks.—A city is not an insurer of the safety of persons who travel its streets or sidewalks, and is not to be held liable in damages for every injury that happens to a traveler. When a city has provided a good, safe, smooth sidewalk, of ample width for the accommodation of the public, those who use it must walk on it or else take the consequences of their carelessness, unless it is huilt in an unsafe or dangerous place.</p> <p>4. Streets — Sidewalks—Facts Showing Sidewalk To Be Safe. — A smooth concrete sidewalk, five feet wide, huilt on an embankment two feet high, with a sloping hank 3 yz feet from the sidewalk to the base, the surface of the ground at the concrete being four inches below the surface of the sidewalk, was reasonably safe, and a person who, in walking on the sidewalk, stepped over the edge of it and lost liis balance and fell, was not entitled to recover damages for the injuries sustained.</p> <p>6. Instructions — Trial—Taking Case from Jury. — Courts are reluctant to interfere with the verdict of a properly instructed jury on a disputed issue of fact or to take a ease from a jury, but where on the facts there is not room for reasonable difference of opinion as to the rights of the parties, the trial court should rule the case as a matter of law.</p>

<p>1. Fraud — Limitation.—Under Section 2519 of the statute, an action to obtain relief from fraud or mistake must he brought within ten years after the mahing of the contract affected by the fraud, or after the perpetration of the fraud.</p> <p>2. Fraud — Limitation When Relief Is Sought on Account of Representations Made by an Insurance Agent. — Where a person was induced to make a contract of insurance by the false and fraudulent representations of the agent that the insured would receive certain benefits not specified in the policy contract, the fraud • was perpetrated when the contract was accepted, and the statute of limitation barred an action to obtain relief after ten years from the perpetration of the fraud.</p> <p>3. Fraud — Limitation.—In an action to recover annual premiums paid for ten years to an insurance company, when the insured was induced to accept tlie policy and pay the premiums by reason of fraudulent representations made by tlie agent, the statute of limitation commenced to run when the representations were made, and after the expiration of ten years the insured could not maintain an action to recover the premiums.</p>

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

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

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

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

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

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

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

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

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

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

<p>Jurisdiction. — In an action for the recovery of money where the value in controversy, exclusive of interest and costs, is less than two hundred dollars, this court has no jurisdiction.</p>

<p>1. Contracts — Damage for Breach of — Loss of Profits. — Where the evidence showed that “A” and “B” entered into a contract by which “B” agreed to furnish “A” buttermilk at a stipulated price, and further showed that “A” had customers who would take the buttermilk, “A” was entitled to recover from “B ” who broke the contract, the loss of profits he sustained, which loss was the difference between the contract price, plus the cost of delivery, and the price ait which he could have sold it. 2. Appeal — Harmless Error. — 'Where the trial court erroneously instructed the jury that they might find damages arising from loss of business in a case in which a recovery was sought for loss of profits as well as for loss of business, and the jury in their verdict specified that the assessment was allowed as damages for loss of profits, the error of the court was cured by the finding of the jury.</p>

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

<p>1. Vendor and Purchaser — Remedies of Vendor — Lieu and- Recovery . of Land. — A lien for purchase money retained in a deed may only be released by tbe owner of the lien or by another thereunto duly authorized by power of attorney executed and acknowledged and recorded according to law; and he who releases the lien must do so in person and in th.e presence of the clerk, who attests his act.</p> <p>55. Vendor and Purchaser — Purchase Money Liens — Assignment of Note Secured by Lien. — The assignment of a note given, as part of the purchase price of land carries with it the vendor’s lien in the deed retained to the extent of the note so assigned.</p> <p>3. Estoppel — Equitable Estoppel — Grounds.—Where the assignee of a note secured by lien on land failed to cause the change in owner* ship to appear upon the deed records and permitted the maker of said notes to retain possession of the original liens upon their being renewed, and said maker by his possession and exhibition of said original lien notes marked “paid” and a release from the vendors of the land, was enabled to obtain from another a loan secured by mortgage upon the land in question, the lien of the mortgage was superior to that of the owner of the purchase money lien note for the reason that the latter is estopped by his negligence in failing to cause the transfer of ownership of the lien to appear of record and in failing to possess himself of the original lien notes when renewed instead of permitting their maker to retain them. And such assignee is likewise estopped to assert a prior lien as against a subsequent purchaser of a portion of the land in question, who relying upon the vendee’s possession and exhibition of the original lien notes, was induced to pay part of the purchase price in cash.</p>

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

<p>1.' Deeds — General Warranty — Subsequent Encumbrances. — A general warranty in a deed ‘‘against all encumbrances whatsoever, except taxes for 1906, which the purchaser -assumes to nay,” applies only to encumbrances existing at the time of the execution and delivery of the deed, and does not include liens for street improvements made many years thereafter.</p> <p>2. Reformation of Instruments — Grounds—Mistake.—Where an instrument fails to embody the actual agreement made or transaction determined upon by the parties thereto, reformation is the proper remedy; but the instrument sought to be corrected must fail to express the real agreement or transaction because of mistake common to both parties, or because of mistake on one side and fraud or inequitable conduct on the other.</p> <p>3. Reformation of Instruments — Grounds—Mistake of Draftsman or Scrivener. — Where an instrument is drawn with the intention of carrying into execution an agreement previously made, and which, by the mistake of the draftsman or scrivener either as to law or fact, does not fulfill the intention, but violates it, there is ground to correct the mistake by reforming the instrument and enforcing specific performance of the original contract according to the real intention of the parties.</p> <p>4. Reformation of Instruments — Grounds—Mistake—Contemplation of Parties. — The mistake against which reformation of an instrument is sought must relate to something within the contemplation of the parties in making their contract.</p> <p>5. Pleading — Reformation of Instruments. — In pleading a cause in reformation the material facts should be set forth in clear and concise language.</p> <p>6. Pleading — Reformation of Instruments — Necessary Allegations.— To sustain a cause in reformation it is necessary to show (1) the grounds of reformation; (2) the agreement actually made; (3) the agreement which the parties intended to make.</p> <p>7. Pleading — Reformation of Instruments — Mutual Mistake. — Where the ground for reformation is mutual mistake, the mutual mistake, or circumstances from which the same can be readily inferred, should be alleged with precision and clearness.</p> <p>8. Reformation of Instruments — Pleading—Sufficiency.—In an action in reformation, pleadings examined and held insufficient to sustain the cause.</p>

<p>1. Venue — Change of Venue — Refusal To Grant — When Ground for Reversal. — A decision of the trial court, either in granting or refusing a change of venue in a criminal case, will not be disturbed toy the Court of Appeals, unless the decision was based upon a ground not authorized by the statute or amounted to an abuse of discretion.</p> <p>2. Instructions — ¡Peremptory Instruction Directing an Acquittal— When Authorized. — The trial court has the same right to give a peremptory instruction in a criminal case that it has in a civil action. If the evidence relied on by the Commonwealth for a conviction fails to incriminate the defendant, or is wholly insufficient to show that he is guilty of the offense charged, it is not only the right but the duty of the trial judge to instruct the jury to return a verdict of not guilty. This rule of practice is not found directly in either the Code or Statutes, but it is firmly established as a part of the criminal jurisprudence of the State and should control the lower courts in the disposition of criminal cases.</p>

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

<p>1. Land — Parol Contract for- Sale of — Constructive Trust — A parol agreement for the purchase of land is within the Statute of Frauds, and not enforceable (Ky. Stats., Sec. 470.) But a constructive trust arising from a parol agreement whereby land sold at a decretal sale is purchased by one for the purpose of allowing its redemption by the former owner, is not within the Statute of Frauds; such an agreement being enforceable on the doctrine of equitable estoppel.</p> <p>2. Land — Constructive Trust Created by Parol Agreement — When Not Enforceable.- — In order to enforce a parol agreement for the sale of land upon the ground that such agreement created a constructive trust, it must be made to appear that the alleged beneficiary of the trust either furnished the purchase money with which to buy the land, with the understanding that the title was to he conveyed to him, or that he had owned the land or had a bona fide claim thereto. This equitable doctrine, however, cannot be invoked by a stockholder of a corporation which owned the land sold at a decretal sale and purchased by a third party, under a parol agreement with the stockholder that he would he allowed to redeem the land for himself and other stockholders of the corporation.</p>

<p>1. Homicide — What Sufficient to Excuse on Ground of Self Defense. ■ — -It is not necessary, in order to excuse a homicide upon the ground of self-defense, that there should have been actual immediate impending danger; it is sufficient if the slayer believed and had reasonable ground to believe, that there was immediate impending danger, and that he had no other apparent and safe means of escape, although this supposed danger had no existence.</p> <p>2. Homicide — Instructions.—An instruction which advised the jury that the accused could not rely upon the plea of self-defense if he “brought on” the difficulty, without defining how he “brought on” the difficulty, was erroneous, because the language was too general and opened altogether too wide a field for inference and supposition upon the part of the jury.</p>

<p>1. Intoxicating Liquors — Local Option Law — Place of Sale. — Where an order for whiskey, accompanied hy the purchase price, is received hy the seller in a county where intoxicating liquors may lawfully be sold, and, pursuant to said order, the whiskey is delivered to a common carrier,' consigned to the purchaser in a local option county, the sale takes place in the county in which the order is received, and is not, therefore, a violation of the local option law.</p> <p>2. Intoxicating Liquors — Construction-of Act of 1912 — Procurement Where Liquor May Be Sold. — The Act of 1912, making it unlawful to purchase or procure intoxicating liquors as the agent of the seller or buyer, refers to the purchase or procurement of it in prohibited territory.</p>

<p>1. Principal and Surety — Contribution.—A surety cannot look to a co-surety for contribution until he has paid the debt, and not they unless the principal is insolvent, as the insolvgncy of the principal and the payment of the debt must concur before a right of contribution accrues.</p> <p>2. Sureties — Contribution—Mortgage to Secure Sureties Who Had Paid Debt. — Where five out of six sureties paid the debt and took a mortgage from the principal to secure them containing a stipulation that when the sixth surety paid his part of the debt the mortgage should operate to secure him, the sureties paying the debt were entitled to contribution from the one who had not paid, as it appeared that the principal was insolvent and the mortgage worthless.</p>

<p>1. Vendor and Purchaser — Remedies of Vendor — Lien and Recovery of Land — Pleading in General. — In an action to enforce a vendor’s lien, the petition must set forth the terms of the contract in full or in substance; if conveyance has been made in accordance with the contract, that fact should be stated; if conveyance has not been so made, the plaintiff must allege his readiness and ability to so convey. And, where such petition does not give such description of the land that the court may ascertain therefrom whether or not the land is divisible, the better practice is to allege the fact in that respect; for the court must be satisfied from the pleadings or agreement of the parties, or from affidavits filed, or the report of commissioners in regard to this matter, before ordering a sale of real estate to enforce a lien thereon. And, if no other liens upon the property so. sought to be subjected are known to the plaintiff, it is advisable to so state in the petition, for Section 694 of the Civil Code requires that the plaintiff in an action to enforce a lien on real property shall state in his petition the liens, if any, held thereon by others. The petition must also ’describe the- property in such definite manner that the court may without reference to any paper not made a part of the record, render a judgment in satisfaction of the lien sought to be enforced.</p> <p>2. Trial — Preliminary Proceedings — Time or Term of Court for Trial. — The time at which an action stands for trial is not affected by the fact that the petition when filed was unsigned; such defect may be remedied; and the action is pending from the time of the filing of the petition and issual of process thereon, even though the petition be unsigned.</p> <p>3. Continuance — Grounds.—Where the record fails to show that the defendants tendered and offered to file an answer, it was not error upon 'the face of the record for the court to overrule a motion for continuance, the only ground of the motion being that the petition was not signed until the term of court at which the answer was due; for the answer was due when the petition was signed.</p> <p>4. Judgment — On Trial of Issues — Conformity To Pleadings. — In an action to enforce a vendor’s lien for purchase money, where the wife of vendee was made a defendant, but the petition fails to show that she was a party to the contract or signed the notes, it was error to render a judgment against her for the note sued on.</p>

<p>1. Intoxicating Liquors — County Unit Law. — The validity of the legislation known as the County Unit Law has been sustained by this court in so many cases that the question must be regarded as closed so far as this court is concerned.</p> <p>2. Intoxicating Liquors — County Unit Law — Effect Of. — When at an election held under the County Unit Law a majority of the votes in the county are against the sale of liquor, the effect is to annul elections previously held, no matter when, in any city, town or subdivision, authorizing the sale of intoxicating liquors, and to put the entire county under the operation of the County Unit Law.</p>

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

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch Number Pour).</p>

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

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

<p>1. Personal Representatives — Qualification of Debtor as Personal Representative. — Where a debtor qualifies as the personal representative of his creditor, the debt is considered as assets of the estate in the hands of the trustee, for which he is liable on his bond.</p> <p>2. Executors and Administrators — Insolvency of Executor. — But if the executor be insolvent throughout the period of his trust, the surety will not be charged with his principal’s indebtedness.</p> <p>3. Executors and Administrators — Judgment Settling Accounts of Executor. — Where the objections to a judgment settling an executor’s accounts are general only, and no errors are pointed out, they will be treated as waived and the judgment affirmed.</p> <p>4. Executors and Administrators — Property Not Covered by Bond • — When Sureties Not Liable. — Where an executor receives property to which he is not legally entitled as personal representative, his administration bond does not cover such property, and his sureties are not liable therefor.</p> <p>5. Executors and Administrators — When Sureties Not Liable — Decedents’ Estates. — The personal estate of a decedent passes to his personal representative; his land passes to his heirs, or if he disposes of it by will, to his devisee. Unless the land is devised to the executor he has nothing to do with it, and his sureties are not liable for the proceeds of a sale thereof, which came to the hands of the executor.</p> <p>6. Executors and Administrators — When Executor Not Liable for Proceeds of Land Sold. — Where the will made no mention of the testator’s real estate, and his executor caused the land of the testator lying in another State to be sold under a decree of a court of that State for the purpose of paying debts and legacies, the surety on the executor’s bond is not liable for the proceeds of the land so sold.</p>

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

<p>Assignments — Accepted Draft — Action Upon By One Claiming To Be an Assignee — Declarations of Payee After Date' of Assignment — When Competent as Evidence. — While admissions made by the holder of a negotiable instrument before it is transferred are competent as evidence against one claiming to hold it as assignee, declarations by the former owner, made after its transfer by him and while in the possession of one claiming to be the assignee thereof, are ordinarily incompetent as evidence against the latter; but this rule does not apply where, in a suit upon the instrument by the latter the defense interposed by the payor is that the instrument was never in fact transferred to the assignee but fraudulently assigned him, in such case it is competent for the payor to prove that in a settlement made by him with the original owner of the instrument after the date of its pretended assignment, the latter was in possession thereof and claiming to be the owner and that in such settlement the instrument was charged to and paid by the payor.</p>

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

<p>Deeds — Reservation—Timber—-Effect on Title to Fruits of Timber. — Gillis Vincent conveyed to Haycraft a tract of land, reserving the timber, with the privilege of removing it within seven years. He then sold the timber to Roscoe Vincent, to whom Haycraft also sold the land, reserving the use and possession thereof from April 29th to the first of the January following. During the months of October and November a large quantity of beech mast ripened and fell on the ground. Held, that Roscoe Vincent’s right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast, but that the mast was subject to appropriation by Haycraft, who had retained the use and possession of the land.</p>

<p>1. Trial — Instructions—Requests or Prayers. — In civil actions it is not reversible error for the court to fail to give an instruction on any particular issue unless requested so to do; and the requested instruction must be offered in writing.</p> <p>2. Negligence — Actions—Evidence—Res Ipsa Loquitur. — Where the defendant owes to plaintiff no duty other than the exercise of ordinary care, the fact of an explosion of a steam boiler creates no presumption of negligence.</p> <p>3. Negligence — Condition and Use of Land, Buildings and Other Structures. — The owner or occupant of premises who induces others to come thereon by invitation express or implied, owes them the duty of exercising ordinary care to keep the premises in safe condition; but he is not an insurer of the safety of such persons.</p>