Volume 159 — Kentucky Reports

<p>Appeal from Lincoln Cirenit Conrt.</p>

<p>1. Constitutional Law — -Title of Act — Insufficient Title. — Section 51 of the Constitution provides that “no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.” Therefore, where an act, entitled “An Act to appropriate money for the benefit of the Houses of Reforpi, to provide funds to pay the existing deficit and to make improvements at the Houses of Reform,” contained twelve sections appropriating money and providing for improvements, and two sections relating to the commitment and control of juvenile offenders, the two sections relating to juvenile offenders were void, because not expressed in the title.</p> <p>2. Constitutional Law — Elimination from Act of Sections That Are Void Because Not Expressed in the Title. — Where an act contains sections that are germane to the title and others that are not, tlie ones that are not may be declared void and the remainder upheld.</p> <p>3. Constitutional Law — Sufficiency of Title. — Where the title expresses with reasonable certainty the subject-matter of the act, or the subject matter of the act may by liberal construction be said to be expressed in the title, or has a natural connection therewith, the legislation will be upheld.</p> <p>4. Constitutional Law — Purpose of Provision Requiring Title to Express Subject Matter of the Act. — The purpose of Section 51 of the Constitution was to enable any person reading the title of an act to get a general idea of what the act treated of or contained, and members of the Legislature, as well as the public, have a right to rely on the title as indicating the subject-matter of the act and to assume that the act contains no legislation that is not embraced in a general way by the subject expressed in the title.</p> <p>5. Constitutional Law — Title of Act — -Misleading and Insufficient Title. — Where the title of an act is so expressed as to limit its purpose to certain specific parts of a general subject, the subject-matter of the act must be confined to the particular parts of the general subjects that are expressed in the title, and if sections are inserted in the act that are outside the scope of the purpose of the act as expressed in the title, they should be eliminated although they may relate to the general subject-matter covered by the title.</p>

<p>Venue — Actions Relating to Real Property. — An action brought by part against the other devisees seeking a sale and division of the proceeds of sale of lands devised under the will, must be brought in the county where the personal representative Qualified; such action being merely a form of partition, and controlled by Section 66 of the Civil Code.</p>

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

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

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

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

<p>1. Master and Servant — Duty of Master to Furnish Reasonably Safe Tools. — While it is the duty of the master to use ordinary care to provide the servant with reasonably safe tools, material and place for the work required of him, the master will not be held liable for defects in tools, material or place of work, that no sort of inspection on his part could have discovered.</p> <p>2. Master and Servant — ’"Simple Tool" Rule. — The rule which requires a master to exercise ordinary care to provide reasonably safe tools and appliances ■ for his servant, has no application where the servant possesses ordinary intelligence and knowledge, and the tools and appliances furnished are of a simple nature, easily -understood, and in which defects can be readily observed by such servant.</p> <p>2. Master and Servant — Dangerous Machinery. — It is only in cases of machinery and appliances which are recognized as dangerous, that the employer owes the duty of looking out for the safety of the employee.</p> <p>4. Master and Servant — Failure of Servant to Object to Using Unsafe Tool. — When the servant, having knowledge that a simple tool furnished by the master is unsafe and dangerous, continues to use the same without objection or protest, he assumes the risk of injury incident to its use.</p>

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

<p>1. Partnership — Dissolution as Termination of Contract of Partnership. — Where both partners are liable on a contract, the dissolution of the firm will not terminate the contract.</p> <p>2. Partnership — (Relations of Partners — Duty to Act with Good Faith. — The duty of a partner to act with good faith is not confined to persons who are actually partners, but extends to persons negotiating for a partnership, and to persons who have dissolved partnership and have not completely wound up and settled the partnership affairs.</p> <p>3. Partnership — Dissolution—Unauthorized Cancellation of Contracts by Withdrawing Partner — Liability in Damages. — Where a partner about to withdraw from a firm, and before the date fixed for dissolution, canceled, in the name of the firm' and without the knowledge of his co-partners, certain valuable supply contracts held by the firm, and arranged individually to represent the supply houses as agent, thus depriving the remaining members of the firm, by reason of their inability to secure supplies, of an opportunity to realize their usual profits during the season; held, that the withdrawing partner was liable for damages by way of loss of profits occasioned by the cancellation of the contracts.</p>

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

<p>Office and Officers — When Not Liable For Costs of Proceedings Against Them — Ordinances.—Public officers acting in good faith in the discharge of their duties are not liable for the cost of judicial proceedings brought against them to test the validity of a city ordinance, and no judgment can be rendered against the city for cost where it is not made a party to the proceeding (See 153 Ky., 669.)</p>

<p>1. Quieting ’ Title — Right of Action and Defenses — Possession of Plaintiff. — The owner of mineral rights may sue the owner of the surface who claims under a deed purporting to convey to him the absolute fee simple title, to cancel such deed in so far as it purports to convey the minerals which had theretofore been severed by conveyance of the remote common grantor, and to quiet his title, without alleging actual possession of the minerals.</p> <p>2. Judgment — Merger and Bar of Causes of Action and Defenses— Identity of Cause of Action in General. — The best and most invariable test as to whether a former judgment is a bar is to inquire whether the same evidence will sustain both the present and the former action; if this identity of evidence is found, it will make no difference that the form of the action is not the same. Identity of subject matter only is not an invariable criterion of the sufficiency of the former judgment as an estoppel.</p>

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

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

<p>1. Intoxicating Liquors — Local Option Election — Election Officers.— The fact that in the Somerset precincts the same officers were appointed to hold the local option election for the city of Somerset as were appointed to hold the general election did not disqualify them from holding the local option election.</p> <p>2. Intoxicating Liquors — Local Option Election — Election Officers — ■ Section 2555, Kentucky Statutes. — Section 2555 of the Kentucky Statutes does not render mandatory a requirement for equal division of the election officers on the question of the sale of liquor.</p> <p>S. Intoxicating Liquors — Local Option Election — Election Officers. — ■ The officers holding the election being at least de facto officers, and it being admitted that there was no fraud in their conduct of it, and the vote certified by them appearing to be a true expression of the will of the voters upon the question, the judgment of the lower court upholding the election was proper.</p>

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

<p>Principal and Surety — Limitation.—A married woman, wlio executed a mortgage on her property to secure sureties of her husband, was not affected by agreements made between her husband and his sureties under which the life of the debt was extended, and she had the right to rely on the statute of limitation when it was sought to enforce the mortgage lien, although as between the sureties and her husband the right of action would not have been barred.</p>

<p>Petition for Writ of Prohibition.</p>

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

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

<p>Personal Injuries — Action lor — Evidence—Verdict.—In an action for personal injuries resulting from a mule, driven by plaintiff in a coal mine, running away with him, evidence examined and held to authorize a verdict for $850.00.</p>

<p>Courts — Jurisdiction—Amount in Controversy — Sham Pleading.— Where the real amount in controversy does not exceed $132.54, with interest, the mere allegation of the pleader that plaintiffs had been damaged in the additional sum of $75, when the facts pleaded show that he has not been damaged in that amount and under no circumstances could he recover the additional damages asked, will not confer jurisdiction on this court.</p>

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

<p>1. Husband and .Wife — Note Executed to tbe Wife for Money Furnished Obligors by tbe Husband — When Not Collectible at Suit of Wife. — Where one sued for malicious prosecution employed a firm of attorneys to defend him "therein and advanced them $250.00 of tbe fee they would receive, in money belonging to Dim but held for him by his wife, which she by his direction paid to the attorneys; and the latter, executed to the wife a note for the ?250.00 under an agreement with, the wife and husband that the note would be cancelled or surrendered to the attorneys at the termination of the action they were employed to defend for the husband; in a suit thereafter brought upon the note by the wife against the attorneys, the circuit court properly refused her a recovery, it being shown by the evidence that the attorneys had fully rendered for the husband in the action for malicious prosecution the professional services they contracted to perform.</p> <p>2. Husband and Wife — Death of Husband Before Suit on the Note by Wife — Did Not Render Incompetent Testimony of the Attornys as to the Agreement Under Which the Note Was Executed.— Notwithstanding the death of the husband, the attorneys were competent to testify as to the agreement under which the note was executed, and also as to the subsequent transactions related by them, because: first, the wife was present and a party with her husband to the agreement, and was also a party to the subsequent transactions with respect to which the attorneys were permitted to testify; second, the wife, though not holding the burden of proof, first testified herself as to the agreement and subsequent transactions. On either of these grounds the testimony of the attorneys and each of them was admissible.</p>

<p>1. Contracts — Cancellation of for Fraud or Mistake — Burden of Proof. — When a party undertakes to set aside a written contract the evidence in bis behalf must be very convincing, and the fraud or mistake established by substantial and satisfactory proof.</p> <p>2. Contracts — Fraud—Evidence Sufficient to Show. — Where the owner of a life estate, who had been asking $1,200 for it, sold and conveyed it to her step-son for $300, the inadequacy of the price, the relationship between the parties, and other circumstances connected with the transaction showed that she was entitled to a cancellation of the contract.</p>

<p>1. Contracts — Verbal Agreements Merged in Written — Where parties hiave verbal negotiations in respect to a trade and afterwards put their agreement in writing, the writing will express the whole contract between the parties in the absence of fraud or mistake</p> <p>2. Contracts — Constructing of Writing. — “E” and “R,” after a good deal of talk as to a contract between them involving a partnership interest in land, agreed in writing that “R” should pay one-half of the purchase price and other expenses connected with the transaction and share equally with “E” in the profits arising from a sale of the land. This writing contemplated that “R” should pay his part of the purchase price and expenses as they were required to be paid, and, it appearing that “R” did not pay anything, he was not entitled to any interest in the land, although he1 construed the contract to mean that he was to pay his part of the expenses after the land was sold out of the proceeds of the sale.</p>

<p>1. Mastered Servant — Master’s Liability for Injuries to Servant— Tools, Machinery, Appliances and Places for Work — Knowledge by Master of Defect or Danger. — Where the master knows of a danger he is required to impart the information to the servant; and for his failure so to do he is liable, unless the danger is one which the servant in the exercise of ordinary care could discover.</p> <p>2. Damages — Inadequate and Excessive Damages. — A verdict of 11,000 where plaintiff’s leg was broken and upon recovery was found to be shorter than the other, held not excessive.</p>

<p>Statutes — Construction of. — Chapter 136 of the Acts of 1912 relating to the payment of certain indebtedness of the House of Reform incurred prior to June 14, 1910, while the institution was operated on a per capita allowance basis, construed as to the time from which interest on the claims of the several creditors should he computed.</p>

<p>Master and Servant — Injury to Servant — Assumed Bisk — Evidence — Peremptory.—Where plaintiff, a driver of a coal car, in leaning over to manipulate a switch lever while the car was in motion, lost his balance and fell against a post situated near the track, and sought to recover damages from his employer for negligently locating the lever so that he could not apprehend the danger of leaning over for the purpose of taking hold of it, evidence examined, and held, that the accident was not one that could have been anticipated by a person of ordinary prudence, but resulted from the performance of duties necessarily incident to plaintiff’s employment, the risk of which he necessarily assumed, and that a peremptory instruction in favor of defendant was proper.</p>

<p>Bills and Notes — Action to Enforce Mortgage Lien — Defense— Section 3760 Kentucky Statutes. — In an action to collect a note and enforce a mortgage lien to secure its payment, the defense being in effect a plea of non est factum, under Section 3760, Kentucky Statutes, in the absence of a direct allegation of fraud or mistake, together with the facts constituting it, plaintiff was properly given judgment, the mortgage, with the certificate of acknowledgment, being duly recorded and the certificate in the form prescribed by statute.</p>

<p>Streets — Original Construction. — A street is not originally constructed until it is improved at the cost of the adjoining property owners.</p>

<p>Taxation — Action to Recover Taxes in City of Fourth Class— Demurrer. — In a city of the fourth class, an action cannot he maintained to recover taxes until after the first of November of the year in which the taxes are levied; and a general demurrer should be sustained to a petition filed prematurely.</p>

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

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

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

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

<p>1. Contracts — Action for Damages for Failure to Deliver Wheat — ■ Evidence. — In an action for damages for failure to deliver wheat if the contract price was 80 cents a bushel to be delivered from the thresher, and the market price at that time was less than 80 cents, the plaintiff was entitled at most ,to only nominal damages and the court erred in not so instructing the jury.</p> <p>2. Contracts — Action for Damages for Failure to Deliver Wheat— Evidence. — If. the time of delivery was during the threshing season as it appears from the evidence to have been, it was improper to permit plaintiff to prove the market value as of the 30th of September, for the market price then could not be used as a basis to fix damage for failure to deliver at the middle of July.</p>

<p>1. Statutes — Subjects and Titles of Acts — Expression in Title of Subject of Act in General. — Where a variance between the title and the body of an Act is not such as to create a strong inference that it has resulted in the enactment of law under misapprehension, and the variance is the result of the inclusion in the title of a particularity not required by the Constitution, the error or surplusage in the title may be disregarded. But, where the entire title, or the essential part thereof, after striking out the matter clearly erroneous or disregarding the surplusage, is in conflict with the body of the act, then there is a failure to conform to Section 51 of the Constitution, for the title does not then express the subject of the Act. Where the title otherwise expresses the subject of the act it is not required that it should state what former legislation is repealed or amended thereby.</p> <p>2. Statutes — Construction and Operation — Policy and Purpose of the Act. — Where words used in a statute do not convey the meaning intended by the Legislature, and from the context and a general survey of the attending circumstances and the object to be accomplished, the true intent may be made apparent, the words used may be .modified, or altered to express the legislative intent.</p>

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

<p>1. Wills — Construction of — Trust Estate — Right of Beneficiary to Income. — A testator devised to his son a tract of land “in trust for the support and proper- maintenance during his life of his wife and children * * * ; to have the use, occupation and control of said premises during said time and the profits thereof to be used for the purposes aforesaid, and none other at his discretion.” Under this direction the sou was given the use of the land during his life for the support of himself and wife and children, with full discretion to use and control the estate in execution of the trust, and he had the right to exercise a discretion in distributing the income among the beneficiaries.</p> <p>2. Wills — Construction of — Trust Estate — Rights of Beneficiaries.— Where property was given to a trustee with directions to use the income in the exercise of a sound discretion for the support of the beneficiaries, he was not obliged to distribute the income equálly between them or to save any part of the income, but had the right to use all for all of them or a part of them, in a sound discretion. None of the beneficiaries had a distinct or severable interest that could be subjected to the payment of his debt.</p> <p>3. Wills — Construction of — Contingent Remainder. — Where a testator devised property in trust to his son for the support of his son and family during the life of his son, and after his death “to descend to his heirs per stirpes,” each of the children of the son took a contingent remainder in the land. If any of them died childless before the son, his interest lapsed, but the interest of those who survived the son became vested on the death of the son.</p> <p>4. Contingent Remainder — Is a Vendible Estate. — A contingent remainder is a vendible estate and may be sold and conveyed by the contingent remainderman or subjected to his debts, but the vendee or purchaser takes subject to the contingency of the remainderman surviving the life tenant. If he survives, all his interest passes to the vendee or purchaser; but if he dies before the life tenant, the vendee' or purchaser takes nothing.</p> <p>5. 'Deeds — Error in Description. — Where a debtor, who owned an undivided one-fourth interest in an estate, conveyed to an assignee in trust for the benefit of his creditors his entire estate of every kind and description, and the assignee by inadvertence or mistake conveyed, in conjunction with the assignor, to the purchaser the interest in the land, describing it as one-fifth when it should have been described as one-fourth, this error did not deprive the purchaser of the right to the whole of the interest of the assignor, as it was intended that he should take the entire estate. ,</p>

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

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

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

<p>2. Negligence — Failure to Prove — Peremptory Instruction. — Where, in an action against a city to recover for the death of a horse alleged to have resulted from the negligent failure of the city to maintain its streets in a reasonably safe condition, plaintiff failed °to show that such negligence was the proximate cause of the horse’s death, and the jury could do no more than guess at the cause of the accident, it was proper to direct a verdict in favor of the defendant.</p> <p>2. ¡New Trial — Newly Discovered Evidence — Affidavit—Necessary Allegations. — To sustain a motion for a new trial on the ground of newly discovered evidence, the affidavit must not only allege that the affiant exercised due diligence in attempting to secure such ■evidence at the former trial, but must allege facts showing that such diligence was exercised.</p>

<p>1. Contracts — Involving Settlement of Title to Beal Estate — Want of Mental Capacity — Lack of Mutuality. — A contract involving the settlement of title to valuable real estate executed by a woman who signed it without reading it, or having it read to her, and who was so seriously ill at the time of a wasting disease that she died fifteen hours later, was unenforcible as to her, and the signing of S. as a party to it agreeing to convey certain real estate was, therefore, without such corresponding obligation on her part, as to render the contract void, and it was properly cancelled.</p> <p>2. Contracts — When Executory Contract Not Binding. — There must be mutuality of obligation in all contracts, and an executory contract upon which only one of the parties is bound is en-forcible in equity by neither party.</p>

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

<p>1. Railroads — Jerking or Bumping in Movement of Freight Trains. — ■ In the absence of a showing on the part of the plaintiff that those in charge of a railroad train had violated some duty to the plaintiff, or had given to the train some unusual or unnecessary jerk or bump, no recovery can be had, it being well recognized that in the movement of freight trains there is always more or less jerking or bumping.</p> <p>2. -Railroads — Jerk in Movement of Freight Trains. — A jerk in the operation of a heavy freight train may be violent, and nevertheless necessary and usual in such operation.</p> <p>3. Railroads — Risks Assumed by Switchmen or Brakemen. — Those who accept employment in the capacity of switchmen or brakemen, and whose duty requires them to be on and about the cars, are fully advised as to the risks incident to their employment; and, in accepting such employment, they assume the risks ordinarily incident to the business, and if injury or death result from such ordinary risk, no recovery can be had.</p> <p>4. Master and Servant — What Servant Must Show Before He Can Recover of Master. — Before the injured servant can recover damages from his master, he must show that his injury was caused by some neglect on the part of the master, or some other servant of the master, which is imputed to him; it is not enough to show that the plaintiff sustained the injury while in the service of the master.</p> <p>6. Master and Servant — When Servant Cannot Recover. — Where the circumstances attending the injury show nothing as to the real cause, but leave it to conjecture as to whether it was the negligence of tlie master or the fault of the injured servant, or an unaccountable accident, there is such a failure of proof that no recovery can be had.</p>

<p>1. Judgment — Nunc Pro Tunc — Adoption Proceedings — Judgment 'Rendered and Not Entered — Sufficient as Evidence. — Where in an adoption proceeding there is among the papers in the case a judgment containing the following notation: “Let the above order he entered and of effect from this date. The 12th day of December, 1908. (Signed) Matt O’Doherty, Judge,” such paper is a sufficient quasi record to justify the court’s action in entering judgment nunc pro tunc.</p> <p>2. Judgment — Nunc Pro Tunc — Innocent Third Parties — Notice of Motion. — In a proceeding to have a judgment of adoption, not entered of record, entered nunc pro tunc, the heirs of the adopting parent do not fall within the rule that the entry of a judgment nunc pro tunc will not be allowed to injuriously affect the rights of innocent third parties.</p> <p>3. Judgment — Nunc Pro Tunc — Jurisdiction—Failure of Petition to Designate Court — Effect.—Where the petition is actually filed in a certain court, and the parties to he affected are all before the court, and especially where infants are involved, whose rights are under the protection of the court, and the court is thus ashed to act and does act, the mere failure to name the court in the petition will not render the judgment void, or prevent the entry of a judgment nunc pro tunc.</p> <p>4. Adoption — Petition—Failure of Petition to State Residence of Plaintiffs — Effect on Judgment. — In an adoption proceeding the failure of the petition to state that the plaintiffs are residents of the county in which the proceeding is brought will not render the judgment void.</p>

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

<p>1. Constitutional Law — Title of Act — Section 51 of the Constitution Is Mandatory. — Section 51 of the Constitution reading^ “No law enacted by the General Assembly shall relate to more than one' subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, ¿mended, extended or conferred shall be re-enacted and published at length,” is mandatory, and its provisions must be substantially complied with.</p> <p>2. Constitutional Law — Power of Court to Declare Law Unconstitutional. — The court is under a duty to declare an Act of the Legislature invalid when it is plainly forbidden by or conflicts with or violates some provision of the Constitution, but this power courts are reluctant to exercise and will not do so unless constrained by 'a strong sense of duty.</p> <p>3. Constitutional Law — Act Violative of Section 51. — An Act of 1910 entitled “An Act to amend an Act entitled ‘An Act to create a Board of Penitentiary Commissioners and regulate the penal institutions of this Commonwealth,’ which became a law March 5, 1898,” proceeded to amend the Act of 1898 by adding to it a new section, leaving the whole of the Act of 1898 in effect, but without republishing any part of the Act of 1898. This method of amendment was a plain violation of Section 51, which provides that no law shall be amended by reference to the title only, but that so much thereof as is amended shall be re-enacted and published at length.</p> <p>4. Constitutional Law — How Section 51 of the Constitution May Be Complied With. — (A) It is not necessary when the body of the new Act repeals all or part of an existing Act to republish the parts repealed, although the title of the repealing Act may purport to be an amendment to the existing Act. (B) When it is proposed to amend or revise one or more Sections of the Kentucky Statutes or an Act, the body of the new Act should contain the section or sections as they will read when revised or amended, if it is proposed to re-enact or leave in force any part of the section or sections that are amended or revised. If, however, it is intended to repeal one or more sections, then it is not necessary to set forth in the body of the Act the section or sections repealed. (C) But when the Act does not purport to be an amendment to an existing law but a new Act, it is not necessary to set out or republish any part of any old law that may be changed or repealed by the new law. (D) When the new Act purports to amend an existing Act by extending, revising or amending it, and no particular section or part of it is specified, then the body of the new Act must set forth the whole of the existing Act as it will appear when extended, revised or amended. (E) When it is desired to confer or carry into a new law provisions of an old law, so much of the old law as is thus conferred or carried into the new law must be published at length.</p>

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

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

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

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

<p>Judgment — Res Judicata — Matters Concluded. — Where in ' an action to recover damages for the cutting and removal of timber from a certain tract of land, the defendant denies the plaintiff’s ownership of the land and asserts ownership in himself, admstting the acts alleged as constituting the trespass, the real issue is the question of ownership of the land, the damages recoverable by plaintiff if he succeeds being only incidental to the main issue; and in such case, if there be a verdict for either party, the judgment thereon entered, determines the question of ownership in favor of such party, and the judgment will be a bar to any future action between the parties involving a claim of ownership of such land.</p>

<p>Instructions — Evidence to Sustain. — The court should not give an instruction upon a theory of the case that is without evidence to sustain it.</p>

<p>1. Taxation' — Fiscal Courts — Powers with Respect to Levy of Taxes. —The provisions of Section 157, Constitution, declaring that “The tax rate * * * for other than school purposes shall not at any time exceed * * * for county and taxing districts fifty cents on the hundred dollars, unless it should be necessary to enable such * * * county or taxing district to pay the interest on and provide a sinking fund for the extinction of indebtedness contracted before the adoption of this Constitution. No county * * * shall be authorized or permitted to become indebted in any manner or for any purpose, to an amount „ exceeding, in any year, the income and tax provided for such year, without the consent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and no indebtedness contracted in violation of this section shall be valid, * * * ” are mandatory, and any indebtedness imposed upon the county in the form of taxation by the fiscal court which exceeds the constitutional limit of fifty cents on the hundred dollars is illegal and void.</p> <p>2. Taxation — Levy for Road Purposes — Void in Excess of Fifty Cents on the Hundred Dollars — What Cannot Give Validity to Levy. — Where the fiscal court makes a tax levy in excess of fifty cents on the hundred dollars for road purposes the levy as to the excess, although made at the request of a considerable number of the taxpayers of the county, is void. The authority of the fiscal court to levy taxes cannot be made to rest upon a contract with the taxpayers, but is derived alone from the Constitution and statutes of the State.</p>

<p>1. Municipal Corporations — Towns of Sixth Class — By Resolution May Determine Necessity for Incurring Indebtedness and Calling Election. — For the purpose of declaring the necessity of incurring an indebtedness of $25,000.00 and issuing bonds to that amount to establish a waterworks system, and calling an election to take the sense of the voters as to whether such indebtedness shall be incurred, the board of trustees of a town of the sixth class may act by resolution.</p> <p>2. Municipal Corporations — Action of Trustees in Actually Incurring Indebtedness — How Taken. — In the matter of directing the issuance of bonds and making a levy to provide a sinking fund for paying the interest on the bonds and retiring them at maturity, the action of the beard of trustees must be had by the passage of an ordinance.</p>

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

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

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

<p>1. Elections — Contests—Re-examination of Ballots and Re-count. — ■ The test of the admissibility of the ballots in evidence upon a contest is tbeir preservation in such manner as to insure their identity, and that they have not apparently been tampered with. A substantial compliance with the requirements of the statute as to placing the ballots on a string, wrapping, sealing them, etc., is sufficient.</p> <p>2. Elections — Contests—Petition.—It is unnecessary that contestant allege eligibility for the office in controversy; the question of eligibility of either contestant or contestee cannot be adjudicated upon contest proceedings.</p> <p>S. Judges — Disqualification to Act — Objections to Judge and Proceedings Thereon. — Where in an election contest, motion was made that the regular judge vacate the bench, said motion being supported by the affidavits of the contestant, held that although under the facts set up in the affidavits, the judge should not have triad the ease, still as the proceeding was in its nature equitable and the entire record including the ballots themselves are before the court for its inspection, whatever prejudice was worked against contestant in the circuit court, may here be remedied.</p> <p>4. Elections — Contests—Re-examination of Ballots ■ and Re-count.— The mere fact that the clerk of the election failed to sign his name on the back thereof will not invalidate it if such failure was through inadvertence.</p>

<p>1. Master and Servant — Master’s Liability for Injuries to Servant-Risks Assumed by Servant — Statutory Provisions. — Kentucky Statutes, Section 2739b, sub-section 7, imposes upon coal operators tbe peremptory and non-delegable duty of furnisbing props to the miners; and for injures resulting from the failure of the master to furnish such props, the servant may recover, unless the danger of working in the place wherein he was injured was so imminent and obvious that an ordinarily prudent person would not have worked therein.</p> <p>2. Master and Servant — Master’s Liability for Injuries to Servant— Contributory Negligence — Actions—Evidence.—Where a coal miner was killed by a fall of slate from the roof of a room wherein he was mining coal, while working under a piece of slate which he had tried to take down, but which he was unable to pull down, after which he put under the visible end of the slate the only prop available, other props which he had ordered not having been delivered, and then proceeded to mine the coal back over which the slate extended, as a result of which work the slate fell upon him, held, that as there was no manner of knowing how far back the slate extended over the coal, it was for the jury to say whether the servant was negligent.</p>

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

<p>1. Personal Injuries — One Acting in Pace of Threatened Danger Bringing Injury upon Himself — Not Necessarily Guilty of Contributory Negligence. — The fact that one in the face of a threatened danger and in an effort to escape it, brings upon himself an injury, and but for which effort on his part the injury would not have occurred, does not necessarily mean that he was guilty of contributory negligence.</p> <p>2. Personal Injuries — Instructions.—In an action for personal injuries resulting in jumping from a moving train with the object of trying to escape injury, an instruction was erroneous that told the jury it was sufficient if the plaintiff believed he was in danger without regard to whether there were any grounds to reasonably justify the belief.</p>

<p>1. Elections — Contest—Bribery—Cancellation of Certificate. — In an election contest the evidence examined and held to show such corrupt use of money by the candidate receiving the certificate of election, and such number of persons bribed to vote for him as to reduce the legal vote he received below the contestant.</p> <p>2. Elections — Bribery Committed In.- — The fact that a candidate had no knowledge of the bribery committed in his behalf does not legitimatize the vote so cast and counted -for him.</p>

<p>1. Evidence — Contract—Admission oí Correspondence. — Where a contractor, by circular letter, invited plaintiffs to bid on the purchase of certain materials, but plaintiffs’ bid did not cover the items specified in the letter, it was not error to reject the letter as evidence of what materials plaintiffs’ bid actually included.</p> <p>2. Instructions — Issue Not Made by Pleadings or Evidence. — Where the evidence was confined to the real issue in the case, an instruction which raised an issue not made by the pleadings or the evidence, while subject to verbal criticism in this respect, held not erroneous.</p> <p>3. Pleading — Demurrer Sustained to Original Answer — Amendment— Same Defense. — Where a demurrer was sustained to defendant’s answer and counterclaim, it was not error to permit defendant to file, several months before trial, an amended answer and counterclaim setting up substantially the same defense, where the amended answer and counter-claim set up a good cause of action.</p> <p>4. Contracts — Contract of Sale — Breach—Measure of Damages — Instruction. — Ordinarily the measure of damages for breach by the buyer of a contract of sale is the difference between the contract price and the market price at the time of the breach, if the article has a market price, but if it has no market price, the measure of damages is the difference between the contract price and the price at which the seller is compelled to sell; yet where the buyer agrees to remove the property, the expense of the removal is not only an element of damages, naturally and proximately resulting from- the breach of the contract, but such as is within the reasonable contemplation of the parties in making the contract.</p> <p>5. Trial — Limitation of Argument — Civil Code, Section 317, Sub-section 6. — Where in a case involving about $2,000 almost two days were consumed in trial, a number of witnesses testified on each side, and the instructions were long and presented issues growing out of plaintiff’s claim and defendant’s counter-claim, limitation of argument to ten minutes on a side was a denial of the right of argument under sub-section 6, section 317, Civil Code.</p>

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

<p>1. Corporations — When Assets Subject to Equitable Lien.- — -The assets of a corporation are subject to an equitable lien in favor of its creditors, who may follow the corporation’s assets, or the proceeds thereof, into the hands of whomsoever they can trace them, and subject such assets to the. payment of creditors’ claims, except as against a bona fide purchaser for value.</p> <p>2. Corporations — Judicial Sale of Assets of Failing Corporation.— The rule above announced has no application, however, where the assets of a failing corporation are sold at a judicial sale, and are subsequently resold by the purchaser to a third person who, bona fide, forms a new corporation for the purpose of acquiring the assets of the old corporation and continuing the business.</p>

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

<p>Bills and Notes — Bills of Exchange — Section 2515, Kentucky Statutes, Abrogated by Negotiable Instrument Act — Limitation.-—The repeal of Section 483 of the Kentucky Statutes by the enactment of the Negotiable Instrument Act carries with it the abrogation of so much of Section 2515 of the Kentucky Statutes as applied to negotiable notes placed upon the footing of bills of exchange, and while it is not decided whether the note in controversy has been placed upon the footing of a bill of exchange, the five year statute of limitation does not apply, and it was error to sustain the plea.</p>

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

<p>1. Schools and School Districts — Cities of Second Class — Tax Levy —Section 26, Chapter 137, Acts, 1912. — The school tax limit of 40 cents on the $100 worth of taxable property in cities of the second class, prescribed by Section 26, Chapter 137, Acts, 1912, does not embrace taxes levied for sinking fund purposes, but applies only to taxes levied for the purpose of defraying the ordinary expenses of operating the schools, and it is the duty of the Board of Commissioners, when requested by the Board of Education, to levy a tax of not exceeding 40 cents on each $100 worth of taxable property for the purpose of meeting current expenses of the schools, and in addition thereto, a tax sufficient to raise the sum requested by the Board for sinking fund purposes.</p> <p>2. Pleading — Tax Levy — Mandamus—Sufficiency of Petition. — In an action of mandamus to require the Board of Commissioners of a city of the second class to levy a tax for sinking fund purposes, it is not necessary for the petition to state facts showing that the outstanding bonds are valid; if the bonds are invalid, and the expenditure therefore unauthorized, this is a matter of defense.</p>

<p>Specific Performance — Contracts Enforceable — Contracts' Relating to Real Property. — Specific performance will be denied of a contract incomplete and. uncertain as to its material terms. So, •where plaintiff and defendant agreed to exchange real estate, plaintiff to pay defendant as part of the consideration of the exchange, three thousand seven hundred and fifty dollars in second lien on the property proposed to he acquired by it from defendant, and the amount of the first lien and time of its maturity, as well as the time of maturity of the second lien, was not agreed upon, the contract is so uncertain that specific performance will not be decreed.</p>

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

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

<p>1. Pleading — Exhibits—When Should Be Piled With. — In compliance with Section 120 of the Code, exhibits that are made the basis of a pleading should be filed as a part of it.</p> <p>2. Pleading — Exhibits—Rule to Pile — Effect of Failure. — If a writing upon which the pleading is based is not filed, the adverse party should ash a rule to have it.filed, and upon failure to file or offer a sufficient excuse, the pleading should be stricken from the file. But it will be too late after judgment to raise any question about the failure to file such an exhibit.</p>

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

<p>1. Contracts — Maritime Contract Defined. — A maritime contract is one relating to a ship as an instrument of commerce or navigation when tending to facilitate its use as such, or in connection with its use as such.</p> <p>2. Liens — Maritime Liens. — A maritime lien does not arise out of every maritime contract; in order for a maritime lien to arise, the service must in some way he brought into relation with the ship itself and tend to facilitate her use as an instrument of commerce.</p> <p>3. Liens — State Cannot Annex Admiralty Lien to Contract for Original Construction of Vessel. — A State cannot annex an admiralty lien to a contract for the original construction of a vessel, as that is not, under the decisions, maritime by nature, and a State cannot change its nature; but as the power of the State in this regard is limited only by the admiralty clause of the federal constitution, it is free to annex liens to non-maritime causes of action, such liens being ordinary statutory liens and not maritime liens; and for this reason it can give a lien enforcible in its own courts on a contract for the building of a ship.</p> <p>4. Pleading — Purpose of. — The purpose of all good pleading is to make plain the issues between the parties, and when that has been done and the case has been tried upon the merits, the courts will be slow to reverse the judgment upon a technical view of the pleadings.</p> <p>5. Appeal — Pleading.—Where a cause of action was first set up in the reply when it should have been set up by amended petition, and the trial court and the parties treated the reply as an amendment to the petition, and acted upon it upon the trial and in the decree as such, it will be so treated upon appeal.</p> <p>6. Judgment — When Judgment of Chancellor Will Not Be Disturbed. —Where the proof is contradictory and the mind is left in doubt, the judgment of the chancellor will not be disturbed.</p>

<p>Telegraphs — Action to Recover for Mental Anguish — When Recovery Cannot Be Had. — Where one who is not mentioned in a telegram, and whose relationship to the subject matter thereof is in no way disclosed to the company, he cannot recover for mental anguish suffered because of the failure to promptly deliver a telegram, there being nothing in the message which suggested to any agent of appellant that appellee might suffer mental anguish by reason of a failure to promptly deliver the message.</p>

<p>1. Municipal Corporations — Obstruction in Street — Injury to Pedestrian — Knowledge of Obstruction. — Where one knew a street was closed to traffic; lived only a few blocks away; had seen the obstruction a few hours before with danger signals displayed, but to escape a slippery sidewalk in consequence of a rain, chose the driveway which she knew had been closed to traffic, there can be no recovery for injury in running into a plank, falling and injuring herself.</p> <p>2. Municipal Corporations — Removal of Barriers or Lights by Act of God. — -Where barriers or -lights properly placed are suddenly removed without warning to the municipality by act of God, or by accident of which it had no notice, the city will not be liable.</p>

<p>1. Railroads — Structures—Duty of Lessor to Public — Liability for Breach — Section 203, Constitution. — While the lessor of a railroad is not liable to the employes of the lessee for torts of the lessee resulting from the negligent operation and handling of its trains, and the general management of the leased property, it is liable to them for injuries resulting from the negligent omission of a duty owed to the public, such as the proper construction of its road, station houses, etc.</p> <p>2. Railroads — Negligent Location of Depot Shed — Injury to Employe —Liability.—A railroad is required to place structures used in connection with its road at such distances from the track that they will not endanger its employes in operating trains, and when structures are placed in such proximity to the tracks that they endanger the servants while discharging their duty, the company is liable for injuries that occur without fault on the part of the employe injured.</p> <p>3. Railroads — Negligent Location of Depot Shed — Dangerous and Unnecessary Obstructions — Evidence.—In an action by plaintiff to recover for the death of her decedent, a brakeman, caused by his being knocked from the freight car on which he was riding by the roof of a depot shed, evidence examined, and held that the shed in question was both a dangerous and unnecessary obstruction, and that defendant was liable for the death of decedent resulting therefrom.</p> <p>4. Railroads — Negligent Location of Depot Shed — Injury to Brakeman — Contributory Negligence — Question for Jury. — Where decedent, a brakeman, was killed by being knocked by a depot shed from the freight car where he was riding in the performance of a duty to the company, the question whether or not he used ordinary care for his own safety was for the jury.</p>

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

<p>1. Intoxicating Liquors — Action lor Damages for Sale of Liquor to Inebriate — Insufficiency of Notice — Evidence.—In an action under 1307, Kentucky Statutes, by a wife against a saloon' keeper for damages for a sale of liquor to ber inebriate husband, it was province of jury to pass on question of fact whether notice was given forbidding sale.</p> <p>2. Intoxicating Liquors — Sale of to Inebriate — Requisites of Recovery. — Statute makes three requisites for recovery in action for sale of liquor to inebriate: (1) That there was a selling or furnishing of the liquor; (2) That the person getting the liquor was an inebriate or habitual drunkard; (3) That it was sold or furnished in violation of a notice forbidding it.</p> <p>3. Intoxicating Liquors — Sale of to Inebriate — Recovery.—In an action for damages for the sale of liquor to an inebriate there can be no recovery resulting from any sales not made or countenanced by the keeper of the saloon, or those in his employ.</p> <p>4. Intoxicating Liquors — Sale of to Inebriate — Notice.—In an action for damages for the sale of liquor to an inebriate, the chief requisite of the action is the notice; if the sale is made in violation of the notice, it may be deemed a wilful or malicious violation of it. For this reason, and by express provision of the Statute, a punitive damage instruction is authorized.</p>

<p>1. Railroads — Action Against for Personal Injuries — Evidence—Submission to Jury. — In action by member of work crew for personal injuries caused by the alleged negligence of those in charge of the train in starting it without signal or warning, and whereby he was thrown against mail crane, the evidence held sufficient to take the case to the jury, and the injuries such as to authorize a verdict for $500.00.</p> <p>2. Railroads — Action for Personal Injuries — Loss of Plaintiff’s Hearing — Recovery of Hearing — Trial.—The statement in appellant’s brief that the plaintiff had recovered his hearing since the trial cannot be considered.</p> <p>3. Railroads — Action for Damages for Personal Injuries — Variance. —In an action for personal injuries as a result of being thrown against a mail crane by the alleged negligence of the servants of the train, the contention of defendant that there is a fatal variance between the pleading and proof is not sustained, the issue being fairly joined upon the question as to whether warning was given as to the starting of the train.</p>

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

<p>Jurisdiction — Of Action Against Bank or Insurance Company.— Under Section 71 of the Code, an action against an incorporated bank or insurance company may be brought in the county in •which its principal office or place of business is situated, or if it arises out of a transaction with an agent of such corporation, it may be brought in the county in which such transaction took place, but it may be brought in either county. And this section applies to foreign as well as domestic corporations.</p>

<p>1. New Trial — Criminal Law — Motion For New Trial — When and How Made. — The only provisions of the Code of Practice authorizing the granting of new trials in criminal cases are contained in Sections 271-274, inclusive, of the Criminal Code. Section 271 requires that the application for the new trial must be ■ by motion; Section 273, that it must be made at the same term at which the verdict is rendered, unless the judgment be postponed to another term, in which case it may be made at any time before judgment. Section 274 requires that the grounds upon which the motion for the new trial is made must be stated in writing and filed at the time of making the motion. The remedy thus afforded by the sections of the Criminal Code, supra, ■ is exclusive; therefore, one convicted of crime in the circuit - . -court cannot, by petition, or after the term at which he has been convicted, apply for or obtain a new trial as allowed in civil cases by Sections 344-518, Civil Code.</p> <p>2. New Trial — Newly Discovered Evidence — When New Trial Will Not Be Granted on Account of. — A new trial will not be granted either in a criminal or civil case on account of newly discovered evidence, when such evidence is merely cumulative or only tends to discredit or impeach an opposing witness; the newly. discovered evidence must be of such a character as that it would have a preponderating influence upon another trial.</p>

<p>Elections — -Contests—Schools and School Districts — Limitation.— Where a school election was held on August 2, 1913, for the purpose of electing a trustee for a subdistrict, and at the close of the polls .one of the election officers -refused to sign the certificate of returns, whereupon the successful candidate instituted a mandamus proceeding to. compel him to sign the certificate and to compel the county superintendent of schools to recognize such successful candidate as the duly elected trustee, a contest proceeding..brought within ten days after the signing of the certificate by the. election officer who declined to sign it .until required to do so by the court, was -not instituted in time. When two of the election officers signed the certificate, the' duties of such officers were completely discharged, and the contest should have been instituted within ten days thereafter.</p>

<p>1. . Intoxicating Liquors — Local Option Law — Place of Sale. — Wlien an order for whiskey, accompanied by the purchase price, is received by the seller in a county where intoxicating liquors may lawfully be sold, and, pursuant to such order, the whisky is delivered to a common carrier at the place of the seller’s residence, consigned to the purchaser in a local option county, the law regards the sale as taking place in the county in which the order is received and the seller’s place of business is located. The sale under such circumstances is not, therefore, a violation of the local option law.</p> <p>2. Intoxicating Liquors — Construction of Act of 1912 — Procurement of Liquor Where It May Be Sold. — The act of 1912, making it unlawful to purchase or procure intoxicating liquor as the agent of the seller or buyer refers to the purchase or procurement of it in territory where its sale is prohibited.</p> <p>GEORGE B. MARTIN, D. M. HOWERTON for appellant.</p>

<p>1. Intoxicating Liquors — Local Option Law — Place of Sale. — When an order for whisky, accompanied hy the purchase price, is received hy the seller in a county where intoxicating liquors may lawfully he sold, and, pursuant to such order, the whisky is delivered to a common carrier at the place of the seller’s residence, consigned to the purchaser in a local option county, the law regards the sale as taking place in the county in which the order is received and the seller’s place of business is located. The sale under such circumstances is not, therefore, a violation Of the local option law.</p> <p>2. Intoxicating Liquors — Construction of Act of 1912 — Procurement of Liquor Where It May Be Sold. — The act of 1912, making it unlawful to purchase or procure intoxicating liquor as the agent of the seller or buyer refers to the purchase or procurement of it in territory where its sale is prohibited.</p>

<p>1. Judgment — Conformity to Pleadings. — In an action involving the title to land, it was error to adjudge parties to be the owners of land which they did not claim.</p> <p>2. Judicial Sales — Process—Execution by Other Than Officer Designated — Civil Code, Section 667. — A jailer has no authority to sell land under an execution issued to the sheriff, and a deed made pursuant thereto is void.</p> <p>3. Judicial Sales — Commissioner’s Deed — Not Examined or. Approved by Court. — A commissioner’s deed which does not contain the endorsement or approval of the court cannot be considered as evidence of title.</p> <p>4. Adverse Possession — Extent of Possession. — Where several tracts of land, though separately described, are conveyed by the same person and embraced in the same deed, and are contiguous to each other, adverse possession of one of the tracts for the statutory period will extend to the whole.</p> <p>6. Adverse Possession — Extent of Possession. — Possession of one tract of land described in one deed, is not of itself sufficient to constitute possession of . another tract described in another deed as against a superior title holder.</p> <p>6. Adverse Possession — Uncertainty of Proof. — In an action involving title to lands by adverse possession, where the evidence is so uncertain and confusing that the court cannot determine with reasonable certainty the exact location of the various tenants and the precise periods of their' respective holdings, and the ends of justice demand that the parties be given an opportunity to take additional proof, the case will be reversed.</p>

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

<p>Master and Servant — Safe Places — Servant Voluntarily Selecting Dangerous Place. — Where an entry in a mine was unsafe on account of the defective condition of the roof of the entry, and a miner, knowing the condition of the roof, voluntarily went out this entry when he could have gone through an entry that was safe, he assumed the risk of being injured by falling slate, and the master was not liable for injuries he sustained.</p>

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

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

<p>1. Railroads — Highway Crossings — Obstruction of by Cars. — At points where railroads cross public highways the company cannot lawfully obstruct the highway by trains for a longer time than five minutes, as provided in Section 768 of the Kentucky Statutes. And when a train is under a duty to clear a road crossing, this means that it shall cut its cars in such a manner as that the entire right-of-way of the road shall be open for travel. If the right-of-way of the road is 16 feet wide, then ' 16 feet must be left unobstructed, and so if the right-of-way is 40 or 60 feet wide.</p> <p>2. Railroads — Highway Crossings — Liability of Railroad Company for Obstructing with Trains. — Where a railroad company unlawfully obstructs a highway ■ crossing with standing cars, it will be liable in damages to a highway traveler exercising care if the horse he is driving becomes frightened at the cars, thereby causing him to sustain injuries.</p> <p>3. Railroads — Crossings—Negligence of Traveler. — Where a gentle horse, accustomed to trains, was being driven on a public road across tracks and became frightened at freight cars standing on the side of the crossing, the driver was not guilty of such contributory negligence as would-defeat a recovery merely because he attempted to drive the mare between the cars knowing that they partially obstructed the roadway, or because he attempted to save his horse and buggy from being hit by a passing train.</p>

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

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

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

<p>1. Estates — Decedents’ Estates — Action for Settlement of — Claim Against — Evidence.—In an action against decedent’s estate, record evidence, such as day book, ledger, bank pass book, etc., having no reference to any verbal statement of deceased, was competent.</p> <p>2. Estates — Decedents’ Estates — Action for Settlement of — Allowance of Claim — In an action against decedent’s estate, evidence examined and held that the claim in controversy is sustained. ■</p>

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

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

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

<p>Appeals from E still Circuit Court.</p>

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

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

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

<p>1. Elections — Contests—Re-Examination of Ballots and Recount.— A recount may be bad by tbe defeated candidate upon bis naked allegation of mistake and oversight in the counting and certification of the vote.</p> <p>2. Elections — Ballots—Indications of Choice by Voter — Irregularities, Errors and Omissions — Distinguishing Marks. — (1) Ballots stamped with a cross mark in the square below the square opposite the candidate’s name will be counted for that candidate for whom it was obviously intended to be cast. (2) Where the precinct election clerk by inadvertence fails to sign his name on the back of the ballot, the ballot will not be rejected because thereof. (3) Ballots voted with a lead pencil are not invalidated. (4) Where a ballot has a blur or blot in the circle apparently made by the voter using the butt end of the stencil, the ballot will be counted. (5) Inadyertent tearing of a ballot will not invalidate it where ■because of sealing wax adhering to the torn place, it is apparent that this was done in wrapping or unwrapping the ballots. (6) Failure of the precinct election officers to detach the secondary stub will not invalidate a ballot. (7) Pencil marks apparently made by the clerk in aiding an illiterate voter are not distinguishing marks. (8) Ballots voted with more than one stenciled cross mark in the circle under the device under certain circumstances will be counted.</p> <p>S, Elections — Contest—Re-Examination and Recount of Ballots.— Where all the ballots are recounted by the court upon a contest, then the ballots which were questioned upon the count made by the precinct election officers if otherwise properly preserved, may also be counted, although not certified in such manner as to authorize the county board of election commissioners to count them in canvassing the returns of the election, for when the court recounts all the ballots there is no necessity that the questioned ballots shall be certified so as to show for whom counted, if at all.</p>

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

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

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

<p>1. Master and Servant — Injury to Servant — Assumption of Risk-Negligence of Master. — A servant does not ordinarily assume the risk of injury growing out of the master’s negligence unless the • danger is known to him or is obvious to a person of ordinary prudence.</p> <p>2. Pleading — General Allegation of Negligence — Failure to Furnish Safe Place or Safe Appliances — Necessity for Pleading. — While negligence may be pleaded in general terms, no recovery thereunder can be had for a failure on the part of the master to use ordinary care to furnish the servant a reasonably safe place to work or reasonably safe appliances for work. Where a recovery is sought on these grounds they must be specially pleaded.</p> <p>3. Pleading — Failure to Allege Unsafe Appliances — Waiver.—Where plaintiff pleads negligence in general terms, and does not allege unsafe appliances as a ground for recovery, defendant does not waive his right to rely on an error of the court in authorizing a recovery for unsafe appliances by failing to object to evidence heard on that point which is competent on the question of contributory negligence, where defendant not only makes a motion to make the allegations more specific, but at the conclusion of the evidence moves to exclude the evidence from the consideration of the jury, and also objects to an instruction authorizing a recovery on that ground.</p> <p>4. Master and Servant — Fellow Servants — Negligence of Superior.— In an action for injuries not resulting in death, a servant cannot recover for the negligence of a superior servant, unless the negligence be gross.</p>

<p>Insurance — Foreign Companies — Doing Business in the State— Taxation. — Where an insurance company goes into a State and makes insurance contracts, it does not cease to do business therein by merely withdrawing its agents and ceasing to solicit new business when its contracts are continued and it receives premiums upon the contracts effected by it therein. Such company cannot relieve itself by its subsequent withdrawal, of the tax imposed under Section 4226, Ky. Statutes. And, where, while it has authority to, and is effecting insurance contracts in the State, it reinsures the‘policy contracts of a domestic insurance company, its act in that respect is equivalent to the writing of original insurance to the extent involved, and it must pay the premium tax thereon notwithstanding its subsequent withdrawal from the State.</p>

<p>1. Boundaries — Location of Division Line — Evidence.—In an action involving a boundary line and its establishment, the question is one of fact and the evidence examined and held to support the finding of the lower court in favor of the plaintiff.</p> <p>2. Boundaries — Location of — Evidence.—In an action to establish a boundary line, the title of neither party in the action being attached, the plaintiff is entitled to use as evidence the line descriptions recited in the deeds of the defendant, and which his title papéis call for.</p>

<p>1. Infants — Sale of Infants’ Real Estate. — A sale of infants’ real estate for the purpose of re-investment as authorized by the provisions of sub-section 5 of Section 489 of the Civil Code is void unless the bond required by Section 493 of the Code is executed before such sale is ordered.</p> <p>2. Infants — Sale of Infants’ Real Estate — Joint Property of Infants.— A sale of the joint property of two infants in a suit by tbe guardian cannot be upheld under the provisions of subsection 2 of Section 490 of the Civil Code where there is no allegation that the infants are in possession of the land sought to be sold, or that the same can, be divided without materially impairing its value, and where there is no proof of indivisibility.</p>

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

<p>1. Statute of Frauds.&emdash;It is not within the Statute of Frauds for one who has money in his hands belonging to another, to agree to pay to a third party the debt of such other with his assent.</p> <p>2. Equitable Assignment.&emdash;The fact that an order given by a debtor to his creditor, directed to a third party holding funds of the debtor, was not accepted in writing by such third party, does not prevent the order from operating as an equitable assignment of the fund.</p> <p>3. Contracts — Consideration—Contractors— Sub-contractors. — Where an original contractor sub-lets a contract to another who has no credit and who is not financially responsible, and at the time both the original and sub-contractor agree with the third party that if he will furnish the sub-contractor with the necessary supplies to enable him to complete the job that the origiinal contractor will withhold from the sub-contractor enough of the fund coming to the sub-contractor to pay the third party’s debt, the original contractor being interested in the completion of its contract by the sub-contractor, there is sufficieint consideration to uphold the promise made by it to pay for the supplies.</p>

<p>1. Pleading — Voluntary Association — Not Suable as Such — Special Demurrer — Plea in Abatement. — While in the absence of statute, a voluntary association is not suable in the name of the association, yet that question must be raised by special demurrer where the facts appear on the face of the petition, or by answer in the nature of a plea in abatement where such facts do not appear. By pleading to the merits without raising the question, the defense is waived.</p> <p>2. Libel and Slander — Words Libelous Per Se. — All written words which hold the plaintiff up to contempt, hatred, scorn and ridicule, and which, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse in society, are libelous per se.</p> <p>S. Libel and Slander — Words Libelous Per Se. — In an action for libel, held that the words, “detestable scabs and blacklegs” were libelous per se.</p> <p>4. Appeal — Without Bill of Exceptions — Questions Tteviewable. — In the absence of a bill of exceptions, the only question to be determined on appeal is whether or not the pleadings support the judgment.</p>

<p>1. Nuisance — Burial of Animals — Damages—Question for Jury.— Where a railroad within five years and while plaintiffs resided near its track, negligently allowed dead animals to be thrown into or buried near a pond on its right of way and adjoining plaintiffs’ premises, resulting in the emission of foul and offensive odors, the question of compensation for the diminution in the value of the property of plaintiffs under such circumstances was peculiarly for the jury..</p> <p>2. Nuisance — Burial of Animals — Damages—Verdict—Not Excessive. —In an action against a railroad company for damages for foul and offensive odors resulting from the negligence of the railroad company in burying dead animals in or near a pond adjoining plaintiffs’ premises, evidence examined, and held that a verdict of $1,000 was not excessive.</p>

<p>1. Divorce — When Judgment of Not Bar to Suit for Alienation of Wife’s Affections. — A judgment granting a divorce to a wife upon the ground of abandonment is not a bar to an action by the husband against the wife’s parents for alienation of her affections where the acts of alienation occur before the abandonment, even though the evidence upon the issue of abandonment in the divorce case and upon the issue of alienation in the other case are substantially the same.</p> <p>2. Divorce — What Not Competent in Suit for Alienation of Wife’s Affections. — The record, judgment, and proceedings in the divorce case were not competent evidence against the plaintiff in the alienation suit.</p> <p>3. Divorce — When Divorced Husband or Wife Not Competent to Testify Against or For Spouse. — The divorced husband or wife is a competent witness against his or her former spouse as to any matter occurring during the marriage relation which was not a confidential communication between' them, and of which they did not acquire knowledge by reason of that relation.</p>

<p>1. New Trial — Discretion of Court in Granting. — The discretion of a trial court in the granting of a new trial will not be interfered with on appeal unless the discretion appears to have been abused.</p> <p>2. New Trial — Discretion of Court in Granting. — Even though it does not appear from the record the ground upon which the trial court granted a new trial, yet if it appears from the proceedings upon the last trial that substantial justice was done between the parties, this court will not interfere with the discretion exercised upon the first trial,</p>

<p>Wills — Construction.—The error of fact complained of in the opinion (159 Ky., 201) is not at all material. When Wade Vandyke died his contingent interest in the estate terminated, and not leaving anything that could or did descend to any person, o John Vandyke did not inherit anything from him</p>

<p>Deeds — Possession—Response to Petition for Rehearing. — While it was inadvertently stated in the opinion (156 Ky., 490) that appellant claimed appellee’s deed did not embrace the land in controversy, it is conceded that the deed does embrace it, and it is apparent that appellant knew the interference was in the possession of another, and that he did not pay for the acreage embraced in it.</p>

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

<p>Modification of Opinion. — The opinion in this action (159 Ky., 14) is modified to the extent of withdrawing that part having reference to the want of jurisdiction upon the part of the Harlan Circuit Court to order a sale of tract No. 1 described in the pe- . tition, it being unnecessary to a decision of the questions raised on appeal.</p>

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

<p>1, Master and Servant — Mines—Safe Place to Work — Changes Resulting from Servant’s Work — Duty of Master. — The duty of the master to use ordinary care to furnish the servant a reasonably safe place to work does not apply where as a result of the servant’s work the character of the place is constantly changed, and the place itself becomes dangerous either necessarily or from the manner in which the work is done.</p> <p>2. Master and Servant — Mines—Personal Injury — Peremptory.—A miner who is engaged in pulling a stump constituting the side of the entry, and is injured by a falling rock, part of which projected into the entry and part of which lay above the coal which the miner himself had removed, cannot recover of the master, since the danger was one of his own creation, and the proximate cause of his injury was his own failure to remove or prop the rock, and under such circumstances a peremptory instruction in favor of the master is proper.</p>

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

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

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

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

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

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

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

<p>1. Usury — What Is Not á Loan or Forbearance of Money. — When one allows a debtor for a consideration to prepay a debt, it is not a loan or forbearance of money. • The ■ privilege of prepaying a debt is as much the subject of sale as any other chattel, and a creditor has as much right to sell or discount negotiable paper to the payer as to any other person, and the discount or proceeds of the sale should not for that reason be considered usury.</p> <p>2. Usury — When Payment of Sum for Release of Mortgage Not Usury. — Where there was default' of payment of a bond and-in-' terest upon a loan aggregating $105,000, and the mortgagee accepted payment from the mortgagor who had borrowed the • money from another source, the' payment to the mortgagee of $1,050 as a prerequisite to .the release was not usury, but a .consideration for the surrender of the right to carry the loan for a period of years it had yet to run, the mortgagor never having instituted suit,' nor taken any step which could be held as a waiver of the right to further carry the loan.</p>

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

<p>From Franklin Circuit Court on Motion to Dissolve Injunction.</p>

Appeal — Action for Trespass — Dismissal.—In an action for trespass in cutting trees from land alleged to be tbe property of tbe plaintiff, where the defendant by his answer denies the plaintiff’s title to the land, and sets up no claim to it himself, no appeal lies from a judgment against the defendant for less than $200.00.

<p>1. Evidence — Submission to Jury. — Where the proof upon a question in issue is contradictory, the decision of the issue should be submitted to the jury.</p> <p>2. Instructions — Plea of Contributory Negligence. — Where a plea of contributory negligence is not sustained by any proof, the jury should not be instructed upon that issue.</p> <p>3. New Trial — When Party Entitled to — Agreement to Retry Does Not Give Parties Right to. — A party to an action is entitled to a new trial only when his rights have been prejudiced in the trial. If the rights of neither party have been prejudiced in the trial, there is no reason for granting a new trial; and the agreement of the parties to retry their case does not give them the right to do so.</p>

<p>1. Appeal — Instructions—When Not Reviewable. — Where on appeal instructions complained of are not identified as having been give'n by the trial court or properly made a part of the Dill of exceptions, they will not he reviewed hy the Court of Appeals; and in such state of case the only question to he determined by the Court of Appeals is, whether the pleadings are sufficient to support the verdict.</p> <p>2. Appeal — Clerical Error — Effect of on Appeal. — Where in an action against the principal and his sureties in a bond, the former obtains a verdict over against the plaintiffs on a counter-claim, the fact that the sureties in the bond are by the judgment erroneously made parties to the recovery does not affect the validity of the judgment. Such error being but a clerical misprision, may be corrected in the court below.</p> <p>3. Appeal — Incorrect Copying of Record — When Condemnation is authorized.- — When the record on an appeal is so incorrectly copied by the clerk of the circuit court as to manifest a total disregard of the requirements of section 2, rule 5, of the Court of Appeals, it will be condemned by that court, which may deprive such clerk of all or a part of his fees for such copying.</p>

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

<p>1. Master and Servant — Appliances—Master’s Duty. — The master is only required to furnish implements or means for work which are reasonably safe for those exercising ordinary care for their own safety, and need not furnish the very best obtainable.</p> <p>2. Master and Servant — Assumed Risk — Federal Employers’ Liability Act. — The doctrine of assumed risk is abrogated by the Federal Employers’ Liability Act only where the injury grows out of a violation of some Federal statute enacted for the safety of employes, and where plaintiff’s claim does not grow out of such a Violation the doctrine of assumed risk applies.</p> <p>3. Master and Servant. — Injury to Employe — Assumed Risk — Peremptory. — Where plaintiff, a section laborer, was injured by the rebound of a rail which had been dropped by him and the other members of the crew, without negligence on their part, held that the danger of being struck by it was one of the risks ordinarily and usually incident to the employment, and one which plaintiff assumed, and that the trial court properly directed a verdict in favor of the defendant.</p>

<p>1. Appeal — When Original Papers Will Not Be Ordered Transmitted to Tbis Court. — The original papers in a case will not be ordered to be transmitted to tbis court unless an inspection of them is necessary, or they are so bulky that tbe copying of them will cause great and unnecessary cost or delay; and tbe facts as to tbis must be shown.</p> <p>2. Appeal — Transmission of Papers to Court of Appeals — Inspection. — Where the inspection of original papers is necessary, tbe application for an order for their transmission to tbis court should identify the papers so that they may be identified in the order by this court.</p>

<p>Master and Servant — Care Required of Master. — Where a fireman was killed by the explosion of a stationary boiler, and there was evidence to show that the boiler was equipped with a water glass as well as water gauges, and that the water glass had been broken a sufficient length of time before the explosion to enable, the master, who knew that it was broken, to supply a new one, it was negligence not to do so. When machinery is equipped with more than one safety appliance, and one of these appliances is better adapted to use by unskilled persons than the other, it is the duty of the master to use reasonable care to keep all of the appliances in working order so that the unskilled servant may have all the protection that the conditions surrounding him reasonably permit.</p>

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

<p>1. Municipal Corporations — Treasurer—Selection of Depository. — A city of the fourth class is not prohibited by sections 3554 and 3555 of the Kentucky Statutes, prescribing the powers and duties of the city treasurer, from designating by ordinance the depository in which the treasurer must keep the funds of the city.</p> <p>2. Municipal Corporations — Treasurer—Selection of a Depository.— A city council may, without express power so to do, select a depository for the city funds, unless the treasurer is given authoriay by the statute to make the selection.</p> <p>3. Municipal Corporations — Liability of Treasurer. — If the treasurer selects the depository in which the funds are to be kept, he is responsible on his bond for the integrity and solvency of the institution, but if the depository is selected by the city council and the treasurer directed by it to keep the funds of the city in the depository so selected, the treasurer is not liable for the solvency or the integrity of the depository.</p>

<p>Deeds — Action to Cancel Tax Deed — Evidence.—In an action to cancel a tax deed, tbe question being one of fact, evidence examined and lield sufficient to authorize tbe judgment canceling the deed.</p>

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

<p>1. Appeal — Filing Motion in Vacation. — A motion filed in tbe clerk’s office during vacation on due notice will be treated as though entered in court on that day.</p> <p>2. Evidence — When Certificate by Officer Not Competent. — A certificate by an officer as to a fact which he is not authorized by law to certify, is not competent as evidence.</p> <p>3. Appeal — Filing Transcript in Election Contest. — In an election contest case this court has power in its discretion to extend the time for filing the transcript.</p> <p>4. Appeal — Filing Transcript — Motion for Extension of Time. — To warrant an extension of the time for filing the transcript, the appellant must show that it was impracticable for him to obtain the transcript and that he used due diligence to obtain it; and only such additional time as may be necessary to complete the transcript will be allowed.</p> <p>5. Appeal — Filing of Transcript. — A proper showing not being made, the motion for an extension of time will be overruled.</p>

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

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

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

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

<p>Criminal Law — Trial at Term Indictment is Found — Continuance.— It is error for tbe trial court to refuse tbe defendant a continuance where a trial is ordered at the indicting term, if he has filed his affidavit showing due diligence in attempting to procure the attendance of material absent witnesses and setting forth the facts to which such absent witnesses would, if present, swear, unless, with the consent of the Commonwealth’s attorney, such statements of the absent witnesses are admitted by the Commonwealth to be true and so read to the jury.</p>

<p>Intoxicating Liquors — Possession of Federal License not Alone Sufficient to Show Violation of Law — Must Be Evidence ot Possession of Liquor. — In a prosecution for the violation of the local option laws under section 2557b, Kentucky Statutes, while the possession of the special license shall be prima facie evidence of guilt, such possession of the license is not alone sufficient; it must be supplemented by evidence that accused at the time of the filing of the information, or within the statutory period previous thereto, had the liquor in his possession.</p>

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

<p>1. Appeal — Bill of Exceptions — Tender of — Revivor.—When time ia - given the appellant in the circuit court until the next term to file ' a bill of exceptions, and one of the appellees dies before the next term, the bill of exceptions should be tendered within the time allowed; but before it can be filed and made a part of the record, the action should be revived against the representative of the decedent, and the case may be continued for this purpose.</p> <p>2. ■ Appeal — Revivor.—If the proper steps were not taken at that term to revive the action they may be taken at the next term.</p> <p>2. Appeal — Will Not Be Dismissed Because Bill of Exceptions Not Properly Piled. — An appeal will not be dismissed because the bill of exceptions was not properly filed, but stands as if there had been no attempt to file a bill of exceptions.</p>

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

<p>1. Judgment — Newly Discovered Evidence — Diligence.—A judgment will not be reversed for newly discovered evidence which is not . decisive in character, or where it is not shown that proper diligence was used to obtain the evidence.</p> <p>2. Judgment — When Will Not Be Reversed. — A judgment will not be reversed on the ground that it is against the evidence unless it is palpably against the evidence.</p>

<p>Exemptions. — Exempt property cannot be subjected to tbe payment of a judgment for a fine by attachment.</p>

<p>1. Carriers — Carriage of Passengers — Ejection of Passengers and Intruders — Failure to Pay Fare. — If a passenger fails to produce a ticket or to pay fare, tbe carrier has the right to eject him, using no more force than is reasonably necessary for that purpose.</p> <p>2. Carriers — Carriage of Passengers — Ejection of Passengers and Intruders — Tender or Payment of Fare to Avoid Ejection. — The general rule is that where a passenger has been in part expelled from a train, as where the carrier’s servants have signalled' for the stopping of the train, the passenger cannot then tender- a ticket, or offer to pay fare and thus entitle himself to transportation and thereby make his expulsion wrongful'. However, where the passenger was asleep and the conductor after trying to awaken him, took him out on the platform of the coach for the purpose of ejecting him, and there the passenger became awake, it might be claimed with some show of reason that, under such circumstances, it would be the duty of the carrier to desist from the ejection upon the tender of a ticket or otter to pay fare. But where no ticket was ever tendered and no otter to pay fare was ever made by the passenger, the ejection was within the carrier’s rights.</p>

<p>1. Mortgages — Compounding Felony — Validity of Mortgage Given Therefor. — In order to avoid a mortgage given to prevent a prosecution for a criminal offense, there must be shown as an inducement for the execution of such mortgage, a promise not to prosecute. Mere apprehension of such prosecution is not enough to render void a mortgage given in settlement of money due from a fire insurance agent to the companies represented by him.</p> <p>2. Mortgages — Requisites and Validity. — A note and mortgage executed for the purpose of paying money due from a fire insurance agent to the companies represented by him, are not void where there is no agreement not to prosecute although there may have been an intimation that there would be a prosecution unless such settlement was effected.</p>

<p>Consolidated Appeals from Pike Circmt Court.</p>

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

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

<p>Petition for Writ of Mandamus.</p>

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

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

<p>Appeal — Taxation-^Suit to Enjoin Collection of Tax — Jurisdiction of Court of Appeals. — In a suit to enjoin tbe collection of a tax ■on. the ground that the. plaintiff’s' property is not subject to taxation, the Court of Appeals has jurisdiction irrespective of, 'the amount of the tax, and an appeal lies from a judgment dismissing the petition, although no injunction was granted in the circuit court.</p>

<p>• 1. Husband and Wife — Deed Executed to Husband With Wife’s Consent — Heirs of Wife Cannot Recover from Husband. — Where land is bought with the money of the wife and deeded to the husband with her consent, no trust arises, and the heirs of the wife cannot recover it from the husband.</p> <p>3. Descent and Distribution — Heir Cannot Sue for Personalty of Decedent. — The heir cannot sue for the personal property of the decedent; the cause of action for this is in the personal representative.</p>

<p>1. Mortgages — Executed by Husband Pending Suit by Wife for Divorce — Void as to Wife. — A mortgage executed by the husband pending a suit by the wife for divorce and alimony, which embraces all the property of the husband subject to execution, is void as to the wife, being in hindrance of her rights, the mortgagee having notice of the suit.</p> <p>2. Mortgages — Liens.—One who- furnisb.es money to a debtor to pay a mortgage debt, has no lien on the property mortgaged to secure the debt.</p>

<p>1. Judgment — What Essential to Validity. — It is essential to the validity of a judgment that it be entered upon the order book of the court, and signed by the judge; an unsigned judgment is no judgment at all.</p> <p>2. Appeal — Time of — Signing of Judgment. — Where a judgment was spread upon the order book more than two years before an appeal was taken but was not signed by the judge until a much later date, which was within two years from the time the appeal was granted, the appeal was granted within two years from the rendition of the judgment and will not be dismissed.</p> <p>3. Deeds — Fraud of Grantor — Transfer for Valuable Consideration— When Creditors Cannot Attack. — Where a transfer is for a valuable consideration, creditors cannot attack it because of the fraudulent intent of the grantor, where the grantee neither had, (1) actual notice of such intent, nor (2) notice of any fact or facts calculated to put him on inquiry and which would lead to a discovery of such intent, nor (3) participated in the fraud.</p>

<p>1. Schools and School Districts — Levy of School Tax — How Collected. — A county school tax levied under section 4426A-9 of the Kentucky Statutes, by the county fiscal court, is a State tax as distinguished from a municipal, county or district tax, and is to be collected by the collector of State taxes.</p> <p>2. Schools and School Districts — Levy of School Tax — Certification by County Clerk — Mandamus.—Where a statute requires the county court clerk to make out and certify tax bills under a school tax levy, either as a State tax or as a county tax, and the clerk declined to make out and certify said school tax hills as a State tax, mandamus will lie to compel him to do so. .</p>

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

<p>1. Criminal Law — Continuance.—Under section 189 Criminal Code where a trial is had at the appearance term, and the defendant has shown proper diligence, the Commonwealth will be required to admit as true the evidence of such absent witnesses as shown in the affidavit filed.</p> <p>2. Homicide — Instructions.—Where two defendants were jointly-indicted for murder by stabbing deceased, the defense being that one of them did the cutting to protect the other, who was his brother, an instruction that required the jury to believe the defendant’s theory of the case, and that shifted the burden to defendants is manifestly wrong.</p>

<p>1. Criminal Law — Nuisance—Evidence oí Reputation of House.— Under an indictment charging defendant with maintaining a nuisance by permitting “divers evilly disposed people to assemble and engage in drunkenness and loud and boisterous language,” evidence that the reputation of the house for peace and good order is bad will not sustain a conviction.</p> <p>2. Criminal Law — Nuisance—Evidence—Competency.—Under an indictment charging defendant with maintaining a nuisance by permitting “divers evilly disposed people to assemble and engage in drunkenness and loud and boisterous language,” evidence that the reputation of the house as a whiskey selling place is bad is not competent.</p> <p>3. Criminal Law — Nuisance—Evidence—Sufficiency.—Under an indictment for maintaining a nuisance by permitting persons to assemble and indulge in drunkenness and disorder, evidence that persons were seen coming from defendant’s premises with bundles under their arms which witness took to be whiskey, and that persons were seen drunk about 100 yards from defendant’s premises, but witness did not know from which direction they came, is not sufficient to sustain the charge of maintaining a nuisance by permitting persons habitually to assemble and engage in drunkenness, in the absence of evidence to the effect that any one ever heard loud or boisterous noises coming from defendant’s pJace, or ever saw any one on his premises or coming from his premises intoxicated.</p>

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

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