Volume 160 — Kentucky Reports

<p>1. Obstructing Justice — Indictment—Sufficiency of Allegations.— Indictment for offense of obstructing justice held sufficient, it being alleged that an express company caused the removal of certain of its records from the jurisdiction of the court knowing that same would be called for by the grand jury, which removal was had for the purpose of hindering the grand jury in its investigations as to violations of law by the express company and others.</p> <p>2. Witnesses — Privilege Against Self-crimination. — The constitutional privilege against self-crimination does not extend to corporations —nor may it be asserted by officers and agents thereof in the corporation’s behalf. And a corporation cannot resist upon the ground of self-crimination, the demand of the state expressed in lawful process, confining its requirements within the limits which reason imposes in the circumstances of the case, that it produce before a grand jury its books and papers although they may contain evidence incriminating the corporation.</p>

<p>1. Prohibition — When. Writ of Will Issue by This Court. — When the judge of a circuit court is acting in a matter without the jurisdiction of the court, as for example entertaining an appeal from an inferior court when an appeal does not lie, this court will issue a writ of prohibition restraining him from hearing or determining the appeal.</p> <p>2. Prohibition — Waiver of Right to Apply for Writ — Remedy by Appeal. — Where an appeal was prosecuted from the county court to the circuit court, and the appellee in due time demurred to the jurisdiction of the court and moved to dismiss the appeal, which motions were overruled, he did not thereafter waive his right to apply to this court for a writ of prohibition by submitting to a trial of the appeal that resulted in a disagreement of the jury, pending which this writ was applied for. Nor does the fact that the petitioner has an adequate remedy by appeal from an adverse judgment of the circuit court deny him the right to apply for the writ when the circuit court is acting without its jurisdiction.</p> <p>S. Insane Persons — Right of Appeal from Judgment of County Court. —Under sections 978 and 2152, of the Kentucky Statutes, an appeal lies to the circuit court from a judgment of the county court adjudging that a person theretofore found incompetent to manage his estate has been restored to his proper senses, and this appeal may be prosecuted by the committee or any person interested in the estate of the incompetent, if the effect of the judgment of restoration' is to remove the committee, although the judgment may not in terms remove him.</p>

<p>Taxation. — Insurance Companies. — Where an insurance company, while authorized to and doing business in this State, issued policies of insurance, and afterwards withdrew from the State by removing its offices and agents, and reinsured its business in another foreign company, it remained liable, under sections 4228 and 4230a of the Kentucky Statutes, for the tax due on premhims collected by it or its successor after it had withdrawn its offices and agents from the State and reinsured its business in another company.</p>

<p>1. Attorney and Client — Alleged Misconduct of Attorney — Evidence. —In an action for specific performance, certain heirs intervene with a claim of misconduct of their attorney in inducing them to enter into a contract of sale of land, and ask a rescission. The evidence examined and held that the heirs were familiar with the land and its value; that they were impatient with the delay in clearing the title and obtaining the purchase price; that they agreed to the terms of sale before advising with their attorney, and that the attorney acted in good faith and as he believed for the best interest of his clients.</p> <p>2. Attorney and Client. — While the law requires that there must be the utmost degree of good faith between attorney and client, subjecting the transaction complained of to the closest scrutiny, it cannot be said that the attorney did anything, or failed to disclose anything, to the detriment of his .clients.</p> <p>3. Specific Performance — Action to Compel — Evidence.—A sale of the land in controversy being the intention of the parties as shown by the contract, the heirs had the right to demand conveyance in accordance with its terms.</p>

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

<p>1. Indictment — Opium—Indictment for Illegal Sale of — Sufficiency of. — An indictment found under Chapter 86, Acts of 1912, charging a sale of morphine for a purpose other than a legitimate use, is not bad on demurrer because of its failure to allege that morphine is an alkaloidal salt or derivative of opium. The word morphine has as well defined a meaning as the word whiskey and is well known to the generality of the people to be a derivative of opium, possessing great narcotic power and deadly effect as a poison.</p> <p>2. Indictment — Words—How Construed — Matters of Judicial Notice. —Section 137, Criminal Code, provides: “The words used in an indictment must be construed according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.” Matters of which the court will take judicia. notice need not be stated in a pleading (section 119, Civil Code); and the matters of which judicial notice may be taken are those which must have happened according to the constant and invariable course of nature, or are of such general or public notoriety that every one may be fairly presumed to be acquainted with them.</p> <p>3. Statutes — “Legitimate Use” — Meaning of — Failure to define does not Render Statute Void for Uncertainty. — Tie established rules of construction do- not require that the sufficiency of penal statutes should be measured by a technical standard that would impair their efficiency and make their enforcement difficult, if not impossible. The word “legitimate” in the statute is not used in its original sense of lawful, but in'its secondary sense of proper or warranted, as when we speak of a legitimate conclusion or a legitimate argument. Morphine is sold for legitimate purposes under the statute, when under the facts, a druggist or doctor, acting according to the ordinary usages of the profession and exercising ordinary care, would have made the sale. This is a question for the jury and should be so submitted to them by an instruction of the court.</p> <p>4. Evidence — Druggists and Physicians — Expert Testimony — When Permissible. — Druggists and physicians may testify as experts upon the question of whether or not a sale of morphine or other alkaloidal salt or derivative of opium, by retail, is for a legitimate use.</p>

<p>1. Master and Servant — Safe Place to Work. — The master must use ordinary care to furnish a servant a reasonably safe place to work, considering the purpose for which the place is intended and the strains that may be reasonably anticipated.</p> <p>2. Master and Servant — Failure of Servant to Exercise Ordinary Care — When Servant Cannot Recover for Injury. — If the servant subjects a platform upon which he is at work to a strain to which, in the exercise of ordinary care, he should not have subjected it, and but for this would not have been injured, he cannot recover.</p> <p>3. Master and Servant — Servant Not Required to Make an Inspection Before Beginning Work — May Assume that the Master Has Made the Place Reasonably Safe for Work. — The servant had the right to assume that the master had used ordinary care to make the platform reasonably safe for the work required of him. The servant was not required to make an inspection of the platform before beginning his work for the purpose of ascertaining whether it was reasonably safe. If, however, its dangerous character was so obvious as that a person of ordinary understanding and judgment, situated as he was, could, by the exercise of ordinary care, have discovered the danger in time to have prevented his death, there should be no recovery.</p> <p>4. Evidence — Expert Evidence — Will Not Authorize a Reversal, Although Incompetent, if Not Prejudicial. — The admission of expert evidence, although incompetent, will not authorize a reversal of the judgment if its introduction was caused by the act of the party complaining in himself first introducing expert evidence upon the same question, and the incompetent expert evidence, improperly admitted, was introduced for the purpose of ' merely refuting and contradicting what had first been testified to by the witness or witnesses of the complainant.</p>

<p>1. Easements — Obstruction ot Passway. — The rule is general that where one conveys a part of his estate he impliedly grants all those apparent or visible easements upon the part retained which were at the time used by the grantor for the benefit of the part conveyed, and which are reasonably necessary for the use of that part.</p> <p>2. Nuisance — Action to Enjoin Shoeing of Horses in Front of Store —Evidence.—In an action to enjoin the shoeing of horses in front of a store on the ground that it was a nuisance to the owner and his customers, evidence examined and held sufficient to support the judgment enjoining the nuisance.</p>

<p>1. Corporations — Report to Auditor of Public Accounts — Section 4078 of the Kentucky Statutes, which requires a corporation annually to make and deliver to the Auditor of Public Accounts, between the 30th day of June and the 1st day of October, a verified statement of its affairs in such form as the Auditor may prescribe, is mandatory; and it is the duty of every such corporation to make the report within the time prescribed by the statute.</p> <p>2. Corporations — Report to Auditor of Public Accounts — Form of Report — Auditor Not Required to Furnish. — There is no duty imposed upon the Auditor of Public Accounts to furnish the form for the report required by section 4078 of the Kentucky Statutes, upon which corporations are to make their annual returns to the Auditor of Public Accounts, except upon request.</p> <p>3. Corporations — Report to Auditor of Public Accounts. — The term “willful,” as used in section 4087 of the Kentucky Statutes, which makes the failure of a corporation to file its annual report with the Auditor of Public Accounts a misdemeanor, subject to a fine, simply means the voluntary act of a party, as distinguished from coercion; that he was free to report or not to report.</p>

<p>1. Master and Servant — Operation of Elevator — Instructions.—In an action for damages for personal injuries growing out of the dangerous and defective condition of an elevator, defendant cannot complain that the jury, in order to find for plaintiff, are required to believe more than was necessary for a recovery, or to pass on admitted facts.</p> <p>2. Master and Servant — Operation of Elevator — Instructions.—An instruction to the effect that the motive power by which an elevator is operated is a part of the elevator and may be considered In determining the condition of the elevator, is not erroneous on the ground that it gives undue prominence to certain facts, since the motive power is essential to the proper operation of the elevator, and without such instruction the jury might conciude that the defendants were under no duty to see that the motive power was in proper condition if furnished by someone else.</p> <p>3, Master and Servant — Operation of Elevator — Evidence.—Evidence that an elevator has frequently stopped during the same year is not too remote to be admissible, hut is competent for the purpose of showing knowledge on the part of defendant and an opportunity to repair.</p>

<p>1. Husband and Wife — Use of Wife’s Money by Husband — When Wife Cannot Recover. — Where a married woman delivered to her husband $900.00, which she had received as the proceeds of the sale of her property, for the husband to use in his business, and he used it by buying mules which he subsequently sold to a ,third person, and the unpaid money in the hands of the purchaser was subjected by attachment proceedings to the payment of the debts of the husband of the married woman, she can not recover the money from the purchaser of the mules.</p> <p>2. Action — Transitory Action — Joinder—Dismissal as Against NonResident. — Where a resident of another county is joined as defendant with a resident of the county in which a transitory action is brought, and the action is dismissed as against the resident defendant of the county, it should also be dismissed as against the non-resident defendant under section 80 of the Civil Code of Practice.</p>

<p>Appeal — Second Appeal — Appellee Entitled to Have Case Advanced. — On a second appeal tbe appellee is entitled to have the case advanced, and the appellant will not he allowed to dismiss the appeal without prejudice, after the appellee has filed the transcript in this court, and had the case docketed, although appellant paid and did not supersede the judgment.</p>

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

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

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

<p>Banks — Insolvency and Dissolution — Under the Banking Act of 1912 tbe Banking Commissioner is vested with authority to sell and convey tbe real estate of an insolvent bank of which he has taken charge under process of liquidation; and this he may do without an order of court, but he is required by law to report his acts to the court, and the Act provides the manner in which exception may be taken thereto.</p>

<p>1. Criminal Law — Indeterminate Sentence. — Where an offense or crime was committed before the indeterminate sentence law of 1914 went into effect, and while the indeterminate act of 1910 was in force, sentence should be pronounced under the act of 1910, although the indictment was found and the trial had after the act of 1914 went into operation.</p> <p>2. Criminal Law — New Law Mitigating Punishment. — Under section 465 of the Kentucky Statutes if a new law certainly mitigates the punishment that might have been inflicted for an offense at the time it was committed, then with the consent of the defendant, judgment may be pronounced under the new law.</p>

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

<p>1. Contracts — Services—Care and Attention of Invalid — Action Upon Contract for. — An action was brought by P. and wife upon an express contract for services performed by each of them in caring for decedent. The action abandoned by the husband and prosecuted by the wife. Held, as the verdict was for only $750.00, appellant was not prejudiced by an instruction authorizing the jury to award the wife $2,000.00, the original claim.</p> <p>2. Contracts — ^Services—Action for — Pleading—Continuance.—It was not error to refuse continuance in an action for services for the care of another because of the filing of an amended petition setting up an implied contract to conform to the proof, appellant having admitted an express contract to pay for services charged in the petition, and admitting the rendering of extra services.</p> <p>3. Contracts — Services—Action for Care of Decedent. — The petition alleging that the claim had been proved and payment demanded, an allegation was not necessary that demand had been made of administrator before suit was brought.</p> <p>4. Contracts — Action for Services for Caring for Decedent — Evidence. — The strict rule of evidence with reference to expert testimony does not apply to an action of this character, and it was competent for the neighbors to testify as to value of services without qualifying as experts.</p> <p>5‘. Contracts — Action for Services in Caring for Decedent — Evidence. —In this action, while it was incompetent for the wife to testify, her testimony complained of was not prejudicial to appellant, as it served to confirm his theory of the contract.</p>

<p>Reformation of Instruments — Action to Reform Deed — Mistake.— In an action to reform a deed, the question being whether there was a mistake in not excepting , certain timber rights from the conveyance, held, that the evidence supports the judgment of .the lower court to the effect that the timber sales in controversy were intended to be excepted from the deed, and not included in the warranty of title.</p>

<p>1. Insurance — Delivery of Policy — Failure to Deliver Before Death of Insured — Effect.—Where the application attached to a policj of insurance provides that the company shall incur no liability until the policy has been issued and delivered and the full first premium paid, and the insured dies before the first premium is paid or the policy is delivered to him, or to anyone else for him, the contract is not binding on the company.</p> <p>2. Insurance — Modification Not Attached to Policy — Kentucky Statutes, Sections 666, 679. — Under sections 666 and 679, Kentucky Statutes, a written policy of insurance cannot be modified by an agreement in the form of a' receipt, or in any other form, unless the alleged modification is attached to the policy.</p>

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

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

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

<p>1. Trial — Final Submission, to Jury — Section 371, Civil Code. — Under Section 371, Civil Code, there can be no final submission of a case to the jury until all the questions of law have been disposed of by the court, instructions and papers pertaining to the case have been actually delivered to the jury, and they are authorized, without further interposition or control of the court, to proceed to a judicial examination of the issue of fact submitted to them.</p> <p>.2. Dismissal and Non-suit — Voluntary Dismissal — Section 371, Civil Code. — Where a motion for a peremptory has been sustained, a verdict written out and the foreman of the jury directed to sign it, this will constitute a final submission of the case to the jury. within the meaning of Section 371, Civil Code, and plaintiff cannot then dismiss the action without prejudice.</p> <p>3. Dismissal and Non-Suit — Discretion of Trial Court. — An action may be dismissed without prejudice by plaintiff only under the circumstances prescribed by the code, and where it is too late to enter such a motion, the trial court is without discretion to entertain or pass on such a motion.</p>

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

<p>Logs and Logging — Sales of Standing Timber. — Reitz & Sons bought of Nall all standing timber larger than certain specified sizes, on a tract of land, and contracted with Bates and Wood therefor, the latter to cut and deliver the logs at stipulated prices, and the purchase price of the timber to be deducted from the proceeds of the logs. Bates and Wood claimed the right to remove certain standing timber and Nall refused to permit its removal, and they sued him for the value of the timber so sought to be removed. The jury found for defendant. Evidence examined and instructions found not prejudicial to plaintiff’s substantial rights.</p>

<p>1. Insurance — Action to Recover of Loss by Fire — Pleading—Verdict. — Where the proof shows that the whole property destroyed was owned by appellee, and the answer manifested no lack of ownership in the plaintiff, the failure of the petition to, allege ownership was cured by the verdict.</p> <p>2. Insurance — Action to Recover Loss of Barn and Tobacco — Instructions. — In an action to recover for loss by fire of tobacco and the barn in which it was housed, there being nothing in the evidence to indicate that the plaintiff caused or procured another to set it on fire, it was not prejudicial to fail to incorporate in the instructions the idea that the jury should find for defendant if plaintiff caused or procured another to burn the premises.</p>

<p>1. Railroads- — Operation.—Accidents at Crossings — Contributory Negligence of Person Injured. — In West Virginia, as the la-w of that State appears in evidence in this case, the person proposing to use a railroad crossing must stop, look and listen for an approaching train, and failure to do so is not excuséd by omission of statutory signals, and is negligence per se.</p> <p>2. Limitation of Actions — Computation of Period — Amended Pleadings. — Where an amended petition is filed in an action to recover for the death of a person struck by a locomotive at a railroad crossing, setting up additional grounds of negligence, a plea of the statute is unavailing; the cause of action is the death of the intestate, and an amended petition setting up additional grounds for a recovery does not state a new or different cause of action.</p>

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

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

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

<p>1. Adverse Possession — Use and Occupation. — The use by a railroad company of a side track for railroad purposes for the statutory, period, without consulting the abutting owners, and without any claim of ownership on their part, vests in the' railroad company title by adverse possession.</p> <p>2. Adverse Possession — Permissive Use. — In the absence of evidence showing under what arrangement a railroad company took possession of property on which it constructed a side track used by it for railroad purposes for the statutory period, it will rot be assumed that the use of the property was merely permissive, and therefore not adverse.</p>

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

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

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

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

<p>Patents — When Void for Uncertainty. — When the lines of a patent were not in fact' run in the survey upon which it was based, and it cannot be determined from the calls of the patent with any certainty what land it includes, the patent will be held void for uncertainty.</p>

<p>Master and Servant — Existence of Relation. — Plaintiff was given a permit to board defendant’s engines for the purpose of learning the duties of a fireman. The engineer of the train on which he was riding suggested that he board a heavier train going in the opposite direction, and which would pass a certain point running under “slow orders.” Plaintiff, of his own accord, left the train on which he was riding, and in attempting to board the heavier train was injured. Held, that in the absence of negligence on the part of those in charge of the trains, plaintiff assumed the risk of attempting to board the train which injured him, and the railroad company was not liable for such injury.</p>

<p>1. Municipal Corporations — Destruction of Property by a Mob.— Under section 8 of the Kentucky Statutes, a municipal corporation is liable in damages for injury to property by a mob if the city authorities have the ability to prevent the damage and have notice or good reason to believe that a mob will destroy or attempt to destroy the property; but no liability attaches unless the city authorities have notice or good reason to believe that a riotous assemblage is about to take place, or, after it has taken place, have notice in time to prevent the injury.</p> <p>2. Municipal Corporations — Destruction of Property by a Mob. — The ‘question of notice to the city is one of fact to he determined by the jury from the evidence.</p> <p>3. Municipal Corporations — Destruction of Property by a Mob — City Not Liable if Owner Contributes to Action of Mob. — Under the statute the city is not liable to the owner of the property who has contributed towards exciting or inflaming the riot, but before this provision of the statute can be invoked against the owner, it must appear that he did something to bring himself within its scope.</p> <p>4. Municipal Corporations — Destruction of Property By a Mob.— Duty of Citizens in Respect to Protecting Property. — The citizen may employ guards to protect his property, but his failure to do this, although he may have reason to anticipate its destruction by a mob, will not excuse the city from its duty to protect the property of its citizens. The statute imposes upon the city a liability, and this liability it can escape only by performing its duty as described in the statute.</p> <p>5. Instructions — -Erroneous Will Be Treated as Harmless if Not Prejudicial. — The giving of an erroneous instruction will not he ground for reversal unless it prejudices the substantial rights of the complaining party.</p>

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

<p>1. Carriers — Shipment of Live Stock — Action for Loss — Tariff Rates —Interstate Commerce. — In an action for damages for loss of interstate shipment of live stock while in transit, the evidence shows that the shippers accepted a freight rate which limited the recovery in the event of injury to $100.00 for each horse or mule. Held, the instruction complained of properly limited the recovery to $100 for each mule as stipulated in the bill of lading.</p> <p>2. Carriers — Shipment of Live Stock — Notice of Tariff Rates — Under Interstate Commerce law the shipper, as well as the carrier, is bound to take notice of the filed tariff rates, and so long as they remain operative are conclusive as to the rights of the parties, in the absence of facts or circumstances showing an attempt at rebating or false billing.</p> <p>3. Carriers — Shipment of Live Stock — Evidence—The statement in evidence of the veterinary that in his opinion the mules died from natural causes did not prejudice plaintiff’s case because there were facts tending to show that they died from such cause — colic, due to negligence in not properly watering and feeding.</p>

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

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

<p>1. Municipal Corporations — Right of Telegraph Company that has Accepted Federal Legislation to Use of Streets. — The Congressional legislation of 1866, conferring upon telegraph companies certain privileges, did not take from a city, the right to charge a telegraph company for using its streets a reasonable compensation.</p> <p>2. Municipal Corporations — License to Public Service Company to Use Streets. — Where a city passed an ordinance giving to a telegraph company the right to use its streets upon the payment of a fixed annual sum, the company, in accepting the ordinance, only obtained the right for the stipulated compensation to occupy the streets until such time as the city might see proper to revoke the license, but must pay the stipulated compensation so long as it uses the streets under the license. The license was revocable by the city at any time upon reasonable notice and conditions:</p> <p>3. Constitutional Law — Equal Protection .of the Law — Classification. —The equal protection clause of the Federal Constitution is not violated unless there has been exacted from the complaining party a charge not imposed on others who acquired their rights in substantially the same manner as the complaining party. It is not enough that' the complaining party and the other parties are engaged in substantially the same character of business. The business must be pursued under a like grant. Cities have a right to make reasonable classifications of grants and privileges and to attach dissimilar conditions and to impose dissimilar burdens upon each class.</p> <p>4. Limitation of Actions — Municipal Corporations — License Tax.— The limitation provided for in section 2515 of the Kentucky Statutes, that an action upon a contract not in writing shall be commenced within five years after the cause of action accrued, applies to a municipal corporation seeking to recover a license tax for the use of the streets, the use being granted to a company under an ordinance the provisions of which were impliedly accepted by the company not in writing, but by its use of the' streets.</p>

<p>1. Corporations — Doing Business With Want of Legal Organization as Defense. — Under section 566 of the Kentucky Statutes, a person who transacts business with a corporation organized under the laws of Kentucky, will not be permitted to rely upon the corporation’s want of legal organization as a defense to an action.</p> <p>2. Corporations — What Will Not Avoid Policy of Insurance on Stock of. — The acquisition by one stockholder of all the stock of a corporation does not constitute such a change of title and interest in the property owned by the corporation as will avoid a policy of insurance thereon, which provides for avoiding the policy in case there is a change of title and interest in the property insured.</p> <p>3. Evidence — When Declaration Deemed To Be Relevant — A declaration is deemed to be relevant if the declarant had peculiar means of knowing the matter stated, if he had no interest to misrepresent it, and if it was opposed to his pecuniary or proprietary interest; the fact that the witness may be prosecuted or disgraced by reason of his declarations does not render them competent in the absence of a pecuniary or proprietary interest.</p> <p>4. Corporations — Transfer of Stock for Fraudulent Purpose — Avoidance of Insurance Policy. — The transfer of all the capital stock of a corporation by the owner thereof to another person for a fraudulent purpose, does not constitute such a transfer of the possession of the insured property of the corporation as will avoid a policy of insurance which contains a provision that the insurance is to be void in case there should be a change of title, interest or possession of the property insured.</p> <p>&’. Contracts — Character of Misrepresentations That Will Render a Contract Void. — Misrepresentations which will render a contract fraudulent, includes only misrepresentations or suppressions of the truth in relation to the contract which is the subject of the litigation; the court will not go outside of the case for the purpose of examining the conduct of the parties in other matters, or question their general character for fair dealing.</p>

<p>1. Statutes — Interpretation of Penal Statutes — Rule.—In the interpretation of penal statutes, the evil should be looked to which is intended to be corrected as well as the history of the efforts to correct it.</p> <p>2. Gaming — Operation of Pool Room. — Act of 1908 — Indictment.—As to the contention that the indictment is not sufficient for the reason that the Act did not create a new offense, but provided a more drastic punishment for the common law offense of operating a pool room, in view of the evil aimed at, it can hardly be said that only a more drastic punishment was intended, and the indictment is held sufficient.</p> <p>3. Gaming — Operation of Pool Room — Provisions of Criminal Code. — • The indictment complained of used the language of the act itself and could not more certainly have indicated to the accused the nature of the accusation against him as well as the circumstances under which he was charged with having committed it.</p> <p>4. Gaming — Operation of Pool Room — Construction of Act — Section 51 Constitution. — As to the contention that the act is in conflict with section 51 of the Constitution in that it purposes to make it an offense to provide a room where there is no assemblage of persons, or to bet on anything except on a race or other contest run and decided, and does not indicate a purpose to make it an offense to maintain a place where money is received and deposited to be transmitted elsewhere to be bet, it cannot be said that there is anything in the act that does not relate directly or indirectly to the suppression of the places referred to in the title, or that has a natural connection with the subject.</p>

<p>1. Husband and Wife — Separate Maintenance — Action—Sufficiency of Evidence. — Evidence beld to sustain the finding of tbe chancellor that plaintiff was entitled to recover of ber husband separate maintenance and support for herself and child, and that an allowance of $85 a month was not excessive.</p> <p>2. Husband and Wife — Separate Maintenance — Award of Lump Sum. —While it is the general rule to award a lump sum as alimony in cases of absolute divorce, yet where there is a mere separation, and defendant’s chief source of income is from his profession, a monthly allowance may be made..</p>

<p>1. Master and Servant — Action Against Master ior Death of Servant —When Damages Not Recoverable. — Where the foreman of a coal tipple, for whose death the master is attempted to be held liable, had exclusive control of the tipple and was charged with the duty of inspecting it and the appurtenant premises, to see that both were kept in a reasonably safe condition for the use of himself and other servants of the master in the performance of his and their duties, at and about the tipple, although it was made to appear from the evidence that his death was caused by a defect in the construction of the tipple, which made the place of his work one of danger to him, the master should not have been held liable therefor, as it further appears from the evidence that the defect and place of danger was known to the foreman, or by the exercise of ordinary care in the performance of his duties as inspector of the tipple and premises, could have been known to him.</p> <p>2. Master and Servant — Care to be Observed by Master — Care Ordinarily Required of Servant — The Greater Care Required of Servant Standing in Relation of Representative of the Master.— Á servant, not charged with the duty of inspection, is not required to make a minute or detailed examination of the place where the master puts him to work, nor to take notice of any defect which would not be apparent to one who usually has neither time nor opportunity for more than a casual, hurried glance at the place of work or the instrumentalities, but is entitled to rely on the master’s having adequately discharged his primary duty of using ordinary care to make the place of work and instrumentalities of work reasonably safe for his use; hence, in such case, the master would be liable to the servant for an injury sustained by the latter, caused by any defect in the place of work or instrumentalities, that made them dangerous for the servant’s use, unless the defect or danger was so obvious that one situated as was the servant ought, by the exercise of ordinary care, to have discovered it. Where, however, the servant, as was the decedent in this case, is the representative of the master, and in control of the place of work and instrumentalities for doing it, as well as the manner of its performance, if he himself undertakes its performance, he assumes not only the risks as to dangers that are obvious, but also such as ordinary care on his part in inspecting the place or instrumentalities of work before beginning it, could have enabled him to discover.</p> <p>3. Master and Servant — Peremptory Instruction — When the Trial Court Should Give. — Where, as in this case, it was made to appear from the evidense, that the servant’s presence at and control of the tipple for eighteen months prior to the accident resulting in his death enabled him to know the defect in the tipple and the consequent danger of his attempting to perform his work in the manner adopted by him; and that if he did not actually know of them it was because of his evident failure to perform the duty of inspection required of him as foreman, the trial court should have held as a matter of law that his death was caused by his own negligence and by a peremptory instruction directed the jury to return a verdict for the defendant.</p>

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

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

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

<p>1. Railroads — Derailment.—When a badly worn and beveled rail concurs with a rigid truck and a bald driver locomotive, it is not an unwarranted deduction to account for a wreck in that way, when no other explanation is offered.</p> <p>2. Railroads — Proof of Previous Derailment. — It was competent to admit evidence of a derailment before this one if conditions were the same, so as to show knowledge on the part of appellant of the danger.</p> <p>,3 Railroads — Accident Caused From Derailment of Engine — Evidence. — It was a subject of legitimate inquiry whether before the accident, engines such as the one in use were being discarded or had become' obsolete, in order to support appellee’s ■ theory that appellant knew the danger in their use.</p> <p>4. Railroads — Action for Death — Expectancy—Instructions.—The instructions being right in form and principle, evidence examined and held to authorize a verdict for $19,011.00 where the decedent had an expectancy of 22 years and was earning $192.00 per month.</p>

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

<p>Evidence — Opinion Evidence — Conclusions of Witnesses in General. — Where the witness testifies to the price which was agreed upon by two others, for an interest in a tract of land, and upon cross-examination, it developed that the witness was not present when the trade was made and had not personal knowledge thereof, but that his testimony was a mere conclusion based upon a process of reasoning upon facts from which more than one inference was reasonably deducible, the testimony was irrelevant for lack of adequate knowledge of the subject-matter.</p>

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

<p>Appeal — Finding of Chancellor — Conflicting Evidence. — In an equitable action, where, upon consideration of the entire record, the mind is left in doubt and it cannot be said with any reasonable certainty that the chancellor has erred, the judgment will be affirmed.</p>

<p>Insurance — Indemnity—When Insurer Not Liable. — Under an imdemnity policy providing that no action shall lie except for money paid by the assured in satisfaction of a final judgment against him, the insurer is not liable, although the insured employed counsel and defended the suit, in which judgment had been rendered against another for a tort committed by him, the insured not being a party to the action, but having paid the judgment.</p>

<p>X Land. — When Execution Sale of Passes no Title — An execution sale of land encumbered by a purchase money lien as shown by the recorded deed in the county cleric’s office, passes no title to the purchaser, although the plaintiffs had brought a suit to foreclose their lien, and in that suit had recovered judgment under which the land had been sold and been purchased by the plaintiffs, but no deed had been made to them.</p> <p>2. Land — Appraisement—What Constitutes Failure to Appraise.— When the sheriff levied upon one tract of land and the appraisers appraised a different tract, as shown by the description given by the appraisers, there is a failure to appraise the land sold.</p> <p>3. Deeds — When Commissioner’s Deed Invalid. — A deed executed by the Commissioner and approved by the court after the case has gone off the docket is invalid, unless the case has been restored to the docket upon notice, and that proper notice was given will be presumed, nothing appearing to show the contrary.</p> <p>4. Deeds — Commissioner’s Deed — Delay in Making — A delay of twenty years to make a deed, after the sale has been confirmed, and the Commissioner ordered to make it does not prevent the deed being made.</p> <p>5. Land — Court Should Not Submit to Jury Legal Question Who Owned Land. — The court should not submit to the jury the legal Question, who owned the land, but should determine the law of the case himself. An instruction to this effect, however, is not prejudicial to the party who had no title.</p> <p>6. Deeds — When Clerical Error Will Not Render Deed Invalid. — A clerical error apparent on the face of the deed when read in connection with the record by which it was made, dbes not affect its validity.</p> <p>7. Judgment — Failure of Heirs to Join in Suit. — When two of the heirs refused to join in a suit, no judgment should be rendered for their interest.</p> <p>8. Action — Revival.—No revivor is necessary although one of the parties dies after the sale has been confirmed and the deed ordered to be made.</p> <p>9. Deeds — Deed to One Dead Passes Title to Heirs. — A deed to a person who is dead passes the title to his heirs as though made to them by name.</p> <p>10. Action — Statutes.—Section 2358a Ky. Statutes has no application to suits brought before its enactment.</p>

<p>1. 'Deeds — Trust Deeds — Effect.—Where the owner, of certain land contracts with another for the improvement and sale of the land, and, for the purpose of carrying out the contract, executes to his son a deed of trust to the property, with power of sale, the contract and deed should be considered together, and the son is authorized, after the grantor’s death, to make conveyance of the land.</p> <p>2. Conversion — Direction.—Money directed to be employed in the purchase of land, and land directed to be sold and converted into money, are to be considered as that species of property into which they are directed to be converted, without regard to the manner in which the direction is given.</p> <p>3. Conversion — Direction—Mandatory.—In order to effect an immediate conversion by deed of trust with power to sell, the direction to sell must be mandatory and not discretionary, and where the power is discretionary, the conversion dies not take place until the sale is made.</p> <p>4. Deeds — Deed of Trust — Fraud—Evidence.—Where, in an action to settle a decedent’s estate, certain heirs charged fraud and undue influence in the execution of a deed of trust by the decedent to his son, evidence examined and held not to sustain the charge of fraud and undue influence.</p>

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

<p>1. Homicide — Instructions—Evidence.—In a prosecution for murder, the evidence showing the killing to be unprovoked and without excuse, the defendant himself admitting that without necessity or excuse he ran his hand into his pocket for his pistol, an instruction was authorized which told the jury in substance that defendant could not rely upon the ground of self-defense or apparent necessity if he armed himself with a deadly weapon, sought out the deceased, brought on the difficulty and willingly engaged in the same until the.time he fired the shot that killed deceased.</p> <p>2. Criminal Daw — Mitigating Act — Trial—Instructions.—It was not error for the court not to give an instruction upon manslaughter, in view of the Act of 1914, the defendant’s attorney refusing to agree to it, as under section 465 Ky. Statutes, the provisions of the mitigating act cannot be applied unless the parties agree that it may.</p> <p>8. Criminal Daw — Instructions.—The failure to define the terms “feloniously” and “malice aforethought” is not prejudicial error.</p>

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

<p>1. Contracts — Sale of Engine — Contemplated Damages Prom Breach. —'Where in a contract for the sale of an engine to operate the stave manufactory ot the purchaser, there was an agreement by the seller to deliver the engine on board the cars at Cincinnati not later than three days after the date of sale, for its immediate transportation by the railroad company to the purchaser’s stave manufactory, and it was understood by the seller in making the contract that any considerable delay, beyond the third day, in delivering the engine on board the cars, would temporarily prevent the operating of the stave manufactory, and thereby cause a loss of profits to the purchaser in its business and deterioration in the quality and value of its stave timber then on hand, a delay by the seller of fifteen days in the delivery of the engine on board the cars, constituted a breach of the contract of sale, which entitled the purchaser to such damages as it sustained by way of loss of profits in its business, or deterioration in the quality and value of its stave timber, resulting from and directly caused by such delay.</p> <p>2. Instructions — When Error in as to Measure of Damages Will Compel a Reversal. — An instruction given by the trial court which omitted to confine the recovery of damages by the purchaser of the engine to such as were sustained by it, either in loss of profits in its business or deterioration in the quality and value of its stave timber or both, resulting during or from the delay of the seller in delivering the engine on board the cars at Cincinnati beyond the day fixed by the contract of sale for its delivery, constitutes reversible error.</p> <p>3. Instructions — Additional Instruction as to Measure of Damages— When Necessary. — As in this case the railroad company did not deliver the engine at the purchaser’s place of business until seven days after it had been placed on board the cars at Cincinnati by the seller, the trial court, in addition to a proper instruction as to the measure of damages, should have further instructed the jury that the seller of the engine was not liable for any damages that the purchaser thereof may have sustained, either by way of loss of profits in its business or deterioration in the value of its stave timber, during or resulting from the delay, if any, on the part of the railroad company in transporting the engine to appellee’s place of business in Whitley county, after it was delivered by appellant on board the cars at' Cincinnati.</p>

<p>-1. Bill of Exceptions — Bystanders’ Bill — Death of Judge — -Statutes— Construction. — Section 337, sub-section 5, Civil Code, should be -construed to authorize a bystanders’ bill, when the judge who presided at the trial -died after hearing a motion for a new trial, but before the time for settlement and filing of a bill of exceptions, since under such circumstances the bill could not be signed by the judge’s successor.</p> <p>2. Bill of Exceptions — Mode of Inserting Transcript. — Kentucky Statutes, section 4639, provides that the transcript may be used in making up a bill of exceptions, and section 4644 declares that a transcript when attested by the judge before whom the trial was had may be taken without being copied to the Court of Appeals to be used on such appeal. Held, that since section 4644 was only intended to save the cost of copying the transcript where the transcript is made a part of the bill of exceptions, “the same as if copied therein,” and has been approved by the judge presiding when the bill was filed the statute shall be regarded' as having been substantially complied with, and the- transcript may be used on appeal without having been copied into the bill of exceptions.</p>

<p>Wills. — Under a devise of property to be equally divided between A and B and the children of C, the division must be made per capita, the three children of 0 taking an equal share with A and B.</p>

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

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

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

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

<p>1, Trusts — May be Created by Parol. — A trust estate in personal property may be created by parol and proved by parol evidence.</p> <p>2, Trusts — Sufficiency of Evidence to Show Creation of Parol Trust. —Where a wife gave to her husband five thousand dollars and told him to put it in the bank for their son so that it might be used for his care and education, and the husband accepted the fund and placed it in the bank to his credit as trustee for the child, this created a trust for the benefit of the child.</p> <p>3. Trusts — Parol—Conversion of Trust Fund. — 'Where a trustee converted to his own use a trust fund in his possession, and after-wards, in an effort to correct the wrong, returned the fund to the donor who retained it for the purposes of the trust, the fund so retained by the donor was impressed with the character of the trust fund.</p> <p>4. Fraud — Gift by a Parent to His Child — When Fraudulent. — Where a parent, without valuable consideration, makes a gift to his child for the purpose of creating a trust fund for the benefit of the child, and the parent at the time is in debt, the gift will be void as to existing creditors as in violation of section 1907 of the Kentucky Statutes providing that “every gift made by a debtor of his estate without valuable consideration therefor shall be void as to his then existing liabilities.”</p> <p>5. Limitation of Actions — Of Action to Obtain Relief for Fraud or Mistake. — Under section 2519 of the Statutes an action for relief for fraud cannot be brought after the expiration of ten years from the time of the perpetration of the fraud.</p> <p>6, Limitation of Actions — Fraud—When Cause of Action Accrues.— Where a debtor' in fraud of the rights of a creditor made a gift to his child in 1900 by creating a trust fund for the benefit of the child, and in 1909 there was purchased with the trust fund property which was conveyed to the child, the debtor’s cause of action, which existed prior to the creation of the trust, accrued when the trust was created and not when the conveyance was made, and was barred by tlie ten year statute of limitations. The purchase was merely an incident following the fraud which was practiced when the trust was created.</p> <p>7. Limitation of Actions — When Statute of Suspended by Conduct of Debtor. — Under section 2544 of the Statutes providing in part that “where the doing of an act necessary to save any right is restrained, the time covered by the restraint shall not be estimated in the application of any statute of limitation,” the fact that the debtor resists, without obtaining an injunction or other prohibitory process, the collection of the debt, does not restrain the creditor from taking such action as may be necessary to secure his debt within the meaning of the Statute, and the Statute runs during the time the collection of the debt is so resisted.</p>

<p>Judgment- — On Demurrer — When. Not a Bar. — When a petition is dismissed on demurrer because it fails to state a cause of action the judgment will not bar another action on a sufficient petition to obtain the relief sought to be obtained in the dismissed petition.</p>

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

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

<p>1. Assignment — Judgment—Interest in Subject Matter — Parties.—• Where the assignee of plaintiffs’ judgment on the first trial of an action is made a party to the action on the second trial, plaintiffs will be permitted to prosecute the action jointly with their assignee;</p> <p>2. Trespass to Try Title — Deed—Conflicting Evidence. — Where in an action of trespass to try title, plaintiffs introduce a title bond and deed, and the evidence is conflicting, it cannot be said as a matter of law that the title bond and deed do not cover the land in dispute.</p> <p>3. Adverse Possession — Possession of Interference. — The actual occupancy of a junior title holder of that part of a tract of land which does not interfere with the elder grant does not give any possession to the part within the interference, although the elder patentee never actually entered upon any part of the land included in his patent.</p> <p>4. Adverse Possession — Continuous.—To constitute adverse posession, the possession must not only be open, notorious, adverse and peaceable, but it must be continuous.</p> <p>5. Adverse Possession — Acts of Trespass. — Mere acts of trespass such as cutting timber from land or taking coal therefrom are not sufficient to constitute adverse possession; nor will the planting of two or three crops of tobacco or potatoes or beans or corn during a period of 20 years constitute such possession.</p> <p>6. Trespass to Try Title — Conflict of Evidence — Peremptory.— Where in an action of trespass to try title plaintiff’s own evidence fails to show a continuous possession of the land, and the question, is one of conflict of evidence, held, that a peremptory instruction should have been given in favor of defendants.</p> <p>7. Adverse Possession — Action for Timber Taken Prom Land.— Period of Possession — Instructions.-—-Where plaintiff sues to recover the value of timber taken from land to which he claims title by adverse possession, the instructions should require the jury to believe that plaintiff had been in possession of the land for 15 years prior to the time the trespasses were committed, in order to authorize a finding in favor of plaintiff.</p>

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

<p>1. Deeds — Construction—Intention of Parties. — The intention of the parties as apparent in a deed should generally control in determining the property conveyed thereby; but if the intent is not apparent from the deed, resort may be had to the general rules of construction.</p> <p>2. Deeds — Construction—Intention of Parties. — Where ,the words used in a deed are uncertain, or ambiguous, and the parties have by their conduct given a practical construction thereto, the construction so put upon the deed by them will be resorted to, to aid in ascertaining their intention.</p> <p>3. Deeds — Description.—The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should .be regarded as inserted for a purpose, and should be given a meaning that will aid the description.</p> <p>4. Deeds — Every part of a deed ought, if possible, to take effect, and every word to operate.</p> <p>5. Deeds — Construction.—In determining the effect of a general clause or recital which may 'operate to extend a grant, such a construction should be given as will, if possible, carry into effect every part of the deed; but, where the construction is doubtful, the instrument should be construed against the grantor.</p> <p>6. Deeds — Description.—A particular description in a deed which is clear and explicit, and is a complete identification of the property intended to be conveyed, will not be varied or enlarged by a more general or less definite description, since in such a case the particular description will be considered as expressing the intent of the parties, rather than the general description.</p> <p>7. Deeds — Description.—A particular description may yield to a general description where the former is defective; where the grant is made certain und.er the general description, and is less than under the particular description; or where there is a clear intent to have the general description control.</p>

<p>1. Wills — Insane Delusion. — The fact that a testator reached a different conclusion from some of his relatives and practically-excluded them in his will from sharing in his estate for the reason, as alleged, that they were unkind to him and were against him when his barns were burned, does not make his belief such an insane delusion as to overcome the presumption of capacity to make his will.</p> <p>2. Wills — Undue Influence. — The objection to the will that it was the result of undue influence exercised on the part of one of the principal beneficiaries is not sustained by the evidence. It is at most a bare supposition without any tangible evidence to support it.</p>

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

<p>1. Guardian, and Ward — Appointment of Testamentary Guardian by Mother — Not- Formerly Allowed — Power to Make Conferred by Act of March 19, 1910. — Prior to the passage of the Act, General Assembly, 1910 (Acts 1910, page 93), which, amended Sections 2016, 2020, 2021, 2033, Kentucky Statutes, a mother of infant •children was without power to appoint by will a guardian for them; but such power was given her equally with the father by the act of March 19, 1910. Therefore the appointment in 1904 ■made by the will of a mother of a guardian for her infant children was void, although the appointment of the guardian, if made by the will of the father, would have been valid.</p> <p>2. Guardian and Ward — Maker of a Will Without Authority to Therein Empower Testamentary Guardian to Settle with His Infant Wards, or Pay Over to Them the Estate Devised, During Their Infancy. — A testator is without power by will to authorize a testamentary guardian to pay to his infant child, during the infancy of the latter, the estate held for him by the guardian. The exercise of such power by the guardian is not permitted by the law; and what the law does not permit a court cannot grant.</p> <p>3. Infants — Disability of Not Removable by Will. — The disability of an infant cannot be removed by the provisions of a will. His ■contracts are voidable at his election, and for this reason the law relieves him of the custody and control of his estate and places it, during his minority, in the hands of a guardian for its preservation and probable increase.</p> <p>4: Guardian and Ward — Exception Arising From the Marriage of Female Infant Repealed hy Statute. — Section 2025, Kentucky Statutes, providing: “The marriage of a female ward shall operate as a discharge of the guardianship, and entitle her to demand a settlement with her guardian,” having been repealed by Act, General Assembly of March 19, 1902, (Acts 1902, page 73), there is no longer any authority under the laws of this State for a guardian of a female ward to settle with and pay her her estate because of her marriage. There has never been in this State a statute which authorized a guardian to settle with his infant male ward and pay to him his estate; nor is such a thing now permissible under the laws of this State.</p>

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

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

<p>Fraud — Persons Liable — Husband and Wife. — Where a wife loans money to her husband’s brother and .takes' his note therefor, and her husband thereafter induces his brother to execute other notes, upon a promise to take up and return to him the note executed •to the wife, the latter is not affected by the alleged fraud of her husband.</p>

<p>1. Judgment — Transfer of Stock — Finding of Chancellor. — The judgment of the chancellor on a question of fact will not be disturbed, where, on the whole record, the mind is left in doubt as to the truth; and where a transfer of stock is absolute on its face, and the parties have treated the transfer as absolute and not as a mortgage, the finding of the chancellor that the transfer was absolute will not be disturbed.</p> <p>2. Banks — Transfer of Stock — The transferee of bank stock is liable to the creditors under the statute, although the transfer has not been recorded on the corporate books, it appearing that he was the real owner of the stock, and had failed to have the transfer recorded to avoid the statutory double liability.</p> <p>3. Banks — Transfer of Stock. — The transferee of bank stock who holds it for eighteen months without complaint, and in the meantime investigates the condition of the bank, cannot be heard after the failure of the bank to complain that the transfer to him was fraudulent.</p>

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

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

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

<p>1. Railroads — Federal Employers’ Liability- Act — Negligence Necessary to Recover Damages Under. — The Federal statute known as the Federal Employers’ Liability Act, does not define tbe character or degree of negligence necessary to a recovery; therefore, when an action is brought under the Federal Act in our State courts to recover damages for injuries sustained on account of the negligence of another employe which do not involve defects In cars, machinery or other equipment, the rules of law prevailing in this State must be looked to in determining whether the acts or omissions complained of amounted to negligence. The negligence that would authorize a recovery under one would authorize it under the other, and if the evidence is not sufficient to sustain it under one, neither will it be sufficient to sustain, it under the other.</p> <p>2. ¡Railroads — Care Required Towards Employe, Whose Duty it Was to Look Out for Trains, is Killed by Passing Train — Facts Stated. — Where it was the duty of the foreman in charge of a crew of men to keep advised of the time of the arrival of trains so that he might have the track clear and protect his men from, injury, the company did not owe him the duty of warning or lookout or reduction of speed, but only the duty of exercising ordinary care to save him after his peril was discovered.</p> <p>3. Railroads — Duty to Employes on and About Tracks. — When an employe working on or about railroad tracks is not charged, with the duty of keeping a lookout for trains, the company, in the operation of its trains, owes him a higher degree of duty than it does an employe whose duty it is to keep a lookout for trains.</p> <p>4. Railroads — Rules of Company — Application of. — The rules of a railroad company regulating the movements of its trains are only made and intended for the benefit and safety of those who are entitled to rely on them and who come within the class meant to be protected by the particular rules. Therefore, rules requiring trainmen to keep a lookout and give warning of the approach of the train and reduce 'its speed have no application to and do not protect an employe whose duty it is to keep a lookout for trains and keep the track clear and protect the men under his charge from injury by passing trains.</p>

<p>1. Master and Servant — Railroad Employe — Duty of Master and Servant — Hand-car.—It is the duty of a railroad company to exercise ordinary care to furnish and keep a hand-car for the use of its employes in reasonably safe condition, and it is the duty of the employe to exercise ordinary care for his own safety and to protect himself from danger if he knows of defective conditions in the car or if the defects are so obvious as that he should be charged with notice of them.</p> <p>2. Master and Servant — Railroad Employe Working on Hand-car— Care Required of. — The duty of inspection or of exercising care to discover defects in a hand-car is not imposed on a servant who is occupying a menial position under the supervision of a foreman.</p> <p>3. Master and Servant — Erroneous Instructions Defining Duty and Care of Servants. — In an action to recover damages for the death of a railroad employe killed by falling from a hand-car, it was prejudicial error to instruct the jury that there could not be any recovery for the plaintiff if the defective condition of the car could have been discovered by him by the use of ordinary care.</p> <p>4. .Master and Servant — Assumed Risk — Erroneous Instruction Defining. — In an action to recover damages for the death of ■ an employe killed on account of alleged defects in a hand-car,' it was prejudicial error to instruct the jury that the decedent assumed the risk arising from the operation of the car. They should have been told that he only assumed the risks incident to the employment after the railroad company had exercised ordinary care to furnish him a reasonably safe hand-car with which to work. If the hand-car was in a reasonably safe con'dition, the employe assumed the ordinary risks attending its operation, but if it was in an unsafe condition, he did not assume risks that might occur as a result of this unsafe condition.</p>

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

<p>1. Deeds — Construed in Connection with Patent and Survey Certificate. — Where a patent, the calls of which were incorrect, referred to the surveyor’s certificate and plat showing the correct courses and distances, which included a larger quantity of land and the patentee conveyed the land by the calls in the patent and the patent was referred to in the deed, the certificate of survey and plat became a part of the description in the deed and could be referred to to correct the erroneous calls therein.</p> <p>2. Deeds — Validity—Mistake as to Quantity — Effect.'—Where the intention of the parties was to convey all the land covered by a patent to the vendor, any mistake in the patent as to the land conveyed would not affect the patentee’s title, especially after the land had passed to innocent purchasers, though the grantor might have a claim for the price of the additional land.</p> <p>3. Deeds — Action to Recover Value of an Excess of Land — Mistake in Deed as to Quantity — Statute of Limitations — When a Bar to Action. — In this action to recover the value of an alleged excess of land claimed to have been included by mistake of the vendor in a deed made his vendees; the mistake being as to the amount to be paid for the land, not as to the piece of land sold and intended to be conveyed. Held, that as the action was not instituted within five years next after the discovery of the mistake nor within ten years next after the mistake was made, it is barred by the statute of limitations. Sections 2515-2519 Kentucky Statutes.</p>

<p>1. Verdict — Witnesses—Province of an Appellate Court. — It is not the province of an appellate court to declare what witness, or number of witnesses, should be believed by a jury, or in whose favor evidence, as a whole, preponderates; nor does the fact that a jury accepted the testimony of two witnesses, or even one, against that of' a greater number of opposing witnesses, justify an appellate court in setting aside the verdict on the ground of its being flagrantly against the evidence.</p> <p>2. Verdict — New Trial. — It is only when the verdict is glaringly excessive, and it appears at first blush to have resulted from passion or prejudice, that a new trial will be granted upon the ground that the finding of the jury was excessive.</p>

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

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

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

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

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

<p>1. Wills — Contest—Verdict—When Will Not Be Set Aside. — Unless the verdict of a jury in a will case is flagrantly against the evidence, it should not he disturbed.</p> <p>2. Wills — Contest—Evidence—Competency of — Hearsay.—Witnesses introduced for the purpose of giving evidence as to the mental capacity of- the testator may relate all facts and circumstances within their knowledge tending to show his mental capacity or want of it, but it is not competent to permit them to relate what other persons said about the condtion of his mind.</p>

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

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

<p>1. Land — Title—Maps.—In a case to try title where a map was referred to by the witnesses in locating conflicting lines, we can get no definite idea of the claims when the map is not with the record, and, therefore, cannot say whether the verdict was or not sustained by the evidence.</p> <p>2. Land — Adverse Possession — Champerty.—Where the proof shows that the land in dispute was enclosed and occupied adversely by appellee at the time appellant became the purchaser from the other claimants, held that appellee’s deed was champertous and void.</p> <p>3. Land — Occupying Claimants — Purchase ¡of Hostile Claim. — If one occupying land claiming it as his own, endeavors to purchase hostile claims of others, he does not thereby surrender his claim, nor admit superiority of the other claims.</p>

<p>1. Elections — Contest—Ballots Voted Openly. — Ballots voted openly on the table by voters who are not sworn as to their disability are illegal and cannot be counted; and where the number is small and it is reasonably certain for whom they were cast, the election should be purged of such illegal votes without throwing out the entire precinct, but where the irregularities are so widespread and far-reaching as to leave the mind in doubt as to how the election did go, they cannot be eliminated.</p> <p>2. Elections — Contest—Fraud—-Irregularities—Evidence.—In an election contest, held that the fraud, illegality and irregularities were so widespread that it could not be determined with any reasonable certainty which party was elected, and that the election should be declared void.</p> <p>3. Elections — Disability of Elector — How Ballot Should Be Voted— Section 1475, Kentucky Statutes. — Officers of election are not authorized by Section 1475, Kentucky Statutes, to mark the ballot of an elector unless the elector is blind or so physically disabled as to be unable to mark his ballot, and shall so declare on oath; where the elector states on oath that by reason of inability to read he is unable to mark his ballot, the clerk may make a pencil dot opposite the declared choice of candidates, and the elector shall be instructed to retire to the booth and mark the ballot.</p>

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

<p>1. Bills and Notes — Novation—Addition of New Name as Security to Renewal of a Note — When Not a Novation. — The addition, as surety, of a new name to the renewal of a promissory note, does not constitute a novation or discharge of the original note, or release the collateral pledged for the payment of the debt when the original note was executed; unless it is made to appear that such was the intention and understanding of the parties.</p> <p>2. Bills and Notes — Novation—How Effected. — A novation is a contract, and like other valid contracts must be supported by a consideration, which is the discharge of the original debt. If, therefore, the agreement does not, or was not intended to release the debtor from the old debt, it is not a novation.</p> <p>3. Bills and Notes — 'Surety—Married Woman Not Liable As. — Where the additional name signed to the renewal as surety was that of a married woman, she did not become liable thereon, and this was true whether her name appeared to the note as the first or last signer thereof. While, ordinarily, it will be presumed that the name appearing first on a note as an obligor is that of the principal debtor,' this presumption may be overthrown by the facts of the case or the conduct of the parties themselves; and it is admissible for one whose name appears first, or above that of another, on a note, to prove that his or her relation to the obligation is, nevertheless, that of a surety, and this he or she may do by parol testimony.</p> <p>4. Bills and Notes — Name of Obligor — When Signed by Another Without Authority — No Liability Imposed Upon Obligor. — Where the name of an obligor in a note, whether a principal or surety, is signed to a renewal thereof without authority from such obligor and without notice to the obligee of such want of authority, the latter can, nevertheless, recover on the original obligation as against both principal and surety.</p> <p>5. Insurance — Assignment of Policy as Security For Debt — When Its Cash Surrender Value May Be Recovered by a Creditor.— Where a note is secured by the assignment to the payee, by the obligor and his wife, of an insurance policy on the life of the former having a cash surrender value, the insurance company issuing such policy cannot, when sued with the obligor by the payee, resist the recovery by the latter of the cash surrender value of the policy, unless such assignment of the policy is forbidden by a provision of the policy, or, by its terms, the privilege of surrendering the policy and receiving its cash surrender value, is confined to the insured alone.</p> <p>6. Insurance — Assignment of Life Insurance Policy by Husband and Wife for Payment of Note of the Former — Continues as to Renewals Thereof. — Where the wife unites with the husband in the assignment of a policy of insurance upon his life to secure his debt, the assignment remains in force as to renewals of the same debt.</p> <p>7. Jurisdiction — Action by Creditor Against Debtor and Insurance Company — 1-Iow Process May Be Served. — In an action brought by the holder of a note secured by a policy of insurance on the life of the obligor, a non-resident, to subject the cash surrender value of the policy to the payment of the note, if summons be served upon the insurance company through the State Commissioner of Insurance and the obligor constructively summoned by a warning order, the court in which the action is brought will have jurisdiction to render a judgment subjecting, in the hands of the insurance company, such cash surrender value of the policy to the payment of the note.</p>

<p>1. Mines — Duty to Prop Roof. — Sub-section 7 of Section 2739b of the Kentucky Statutes, which requires a mine owner or operator to furnish props to the miner to be used by the miner in securing the roof of his room and at such other working places where, by law or custom of those usually engaged in such employment, it is the duty of the miner to keep the roof propped, does not impose the duty of propping the roof of the mine upon either the miner or the operator; that duty may, by agreement or custom, be imposed upon either the miner or the mine owner.</p> <p>2. Evidence — Competency of Under Section 2739b, Kentucky Statutes, Sub-section 7, Relating to Injuries Received in Mines. — In an- action by a miner for injuries received from the falling of the roof of a mine, it is competent, under Sub-section 7 of Section 2739b of the Kentucky Statutes, to show whether it was the duty of the miner or of the mine operator to prop the roof of the mine.</p>

<p>1. Sales — Sale of Personalty — When a Mortgage. — A provision in a contract of sale of a piano to the effect that no title or interest therein shall pass to the buyer until after the payment in full of the purchase money, and that until that time the ownership of the piano is to remain in the seller, is invalid; in such cases the title passes to the buyer, and the transaction will be treated as a sale of the piano, and a mortgage thereof back to the seller, with a lien for the purchase money.</p> <p>2. Sales — Sale of Personalty with Right to Retake Possession— When It May Be Done. — A provision in a contract selling a piano, which authorizes' the seller to retake possession of the piano in default of payment of the purchase price, is valid and enforceable, with the limitation, however, that the right to retake possession must not be exercised with such force as will amount to a breach of the peace, or an assault, or subject the seller to an action for trespass.</p> <p>3. Sales — Sale of Mortgaged Chattel by Mortgagee. — After having lawfully retaken possession of a mortgaged chattel, the seller may sell it, if so provided by the terms of his contract, at a fair public or private sale, and upon adequate notice to the owner.</p> <p>4. Mortgages — Foreclosure Forbidden. — A sale of a mortgaged chattel by the mortgagee under a power of sale, is a mere enforcing of the lien of the mortgagee, and does not violate Section 375 of the Civil Code, which forbids the foreclosure of a mortgage, whereby the mortgagor’s right of redemption of the mortgaged premises was barred or foreclosed forever, and the title forfeited without a sale.</p> <p>5. Mortgages — Mortgagee of Chattel in Possession — Duty of.— Where the seller of personal property retakes possession thereof under a contract of sale authorizing him to do so upon default in the payment of the purchase money, he holds it as the property of the buyer, for the purpose only of paying the debt upon it; the title of the buyer is not forfeited; and any surplus remaining after the payment of the debt is the property of the buyer, who will be treated as a mortgagor.</p> <p>6. Mortgages — Mortgagee of Personalty in Possession — Liability of —Liability of Mortgagor. — When a seller of personal property retakes possession thereof under a contract of sale which authorizes him to do so upon default in the payment of the purchase money, he is liable to the buyer for the actual value of the property so taken, and the buyer is liable to the seller for the unpaid purchase money — the one to be set off against the other.</p>

<p>1. Corporations — Officers of — Negligence — Liability. — Officers of corporations are not liable for the negligence of the corporation merely because of their official relationship to it; such liability only grows out of some - wrongful or negligent act or omission by the officer amounting to a breach of duty .and thereby making him a participant in the wrongful act.</p> <p>2. Corporations — Inspection of Boiler — Notice.—In this case it was not the duty of the president of the corporation to inspect the boiler which exploded and- killed the intestate; and he, having no notice of the defective condition of the boiler, was guilty of no breach of duty which made him liable.</p> <p>3. Corporations — Officers of. — Officers of corporations are not insurers of the fidelity of its subordinate employes.</p>

<p>1. New Trial — Discretion of Trial Court in Granting. — It is the universal rule of this court not to interfere with tbe discretion of a trial court in granting a new trial unless there has been an abuse of that discretion.</p> <p>2. New Trial. — Several grounds for a new trial having been given, and the court failing to say upon which it was granted, this court cannot say that it was granted because of a mistaken idea of the law; but, on the contrary, will assume that it was because of a belief that substantial justice had not been done on the first trial.</p>

<p>Warranty — Action for Breach — Evidence—Peremptory.—In an action for damages for breach of the “usual guarantee” in the sale of an automobile, where there was no competent evidence tending to establish the warranty claimed by plaintiff, the trial court properly directed a verdict in favor of defendant.</p>

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

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

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

<p>1. Deeds — Void—Voidable—A deed by one mentally incompetent is not necessarily void, and, unless there was unfairness or injustice, the deed should not be set aside.</p> <p>2. Evidence — Preponderance—Chancellor’s Judgment. — Where the evidence sustains the finding of the chancellor, the same will not be disturbed.</p> <p>3. Estoppel — Heirs Not Estopped to Set Aside Deed. — The heirs of a grantor in a deed are not estopped from seeking to set aside a deed for inadequate consideration and mental incapacity, where there was no representation that the old man was sane or competent and the party affected thereby was not ignorant of his condition, but had notice of the fact, and it is apparent acted contrary to the intention of the children, and was not induced to such action by any representation they made, and there was reasonable promptness in suing for rescission.</p>

<p>Master and Servant — Contributory Negligence — Pleading.—Under the prevailing practice permitting the plea of contributory negligence to be set forth in general terms, an instruction following the pleading will be generally sufficient on this subject.</p>

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

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

<p>1. Insurance — Reinstatement—Habits of Insured — Evidence.—On tbe issue as to the state of health of the insured at the time he was reinstated after being dropped, proof of his intemperate habits between the date of the application for insurance and the date of the reinstatement, is incompetent without a showing that his health was thereby impaired.</p> <p>2. Insurance — Declarations of Beneficiary — Evidence.—Declarations of the beneficiary in a certificate may be shown as substantive evidence; but declarations of her brother and sisters living in the house with her and the deceased, may not be shown as substantive evidence, unless at the time they were acting as agents of the deceased, and the declarations were made during the course of the agency.</p> <p>3. Insurance — Payment of Dues. — Proof that $15 was borrowed to pay the dues of the deceased is competent with other facts tending to show haste in the matter of making the payment.</p> <p>4. Insurance — Evidence.—Declarations of the beneficiary’s sisters inconsistent with their testimony on the trial, may be shown in rebuttal to impeach the witnesses.</p> <p>5. Insurance — What Not Competent in Action Upon Policy. — A judgment of the police court showing that the deceased had been fined on a charge of drunkenness and disorderly conduct after the date of the application, was incompetent.</p>

<p>1. Assumption of Risk — Action for Damages for Death' — Error in Instructions — When Prejudicial. — In an action to recover damages for the death of the plaintiff’s intestate employed by the defendant as the keeper of a trap-door used in its mine to prevent the escape of fresh air from the mine, such death having been caused, as alleged, and as there was some evidence to show, by the negligence of the defendant’s motorman in failing to give the intestate the customary signal of the coming of an electric motor and cars and running the motor against the trap-door and over the intestate, it was prejudicial error for the trial court to instruct the jury that the intestate “assumed all the risks and hazard of his employment.” The law is not as stated in the instruction, for the decedent did not assume all the risks of his employment, but only such as were ordinarily incidental to the employment; and the general rule is, that whether the servant assumes the risk or not is a question for the jury where men of ordinary "judgment, on the facts, might reasonably differ in opinion.</p>

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

<p>1. ¡Deeds — Contingent Remainder. — The rule is well settled that where the devise or grant over is to the children of a life tenant, although they may not be named, or to the children, naming them, they take a vested estate in remainder; but if the devise or grant over is to the heirs of the life tenant, unless the word “heirs” means “children” the heirs take only a contingent remainder subject to be defeated by their death before the death of the tenant.</p> <p>2. Deeds — Remainder—When Contingent. — Where real estate was conveyed to the grantor’s daughter for life, and is then “to descend to the heirs of her body in fee simple,” the remainder-men took an estate contingent upon their surviving their mother; and a child who died before his mother died, took no estate Whatever in the land.</p>

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

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

<p>Elections — Contest—Issual of Mandate. — The mandate in a contested election case may be issued immediately,- but an order of court must be obtained directing it to be issued.</p>

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

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

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

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

<p>1. Contempt — Of Court — Defined.—Contempt of court is confined to acts or conduct amounting to disrespect of or indignity to the judge or court, or interference with or disobedience of the processes, orders or judgments of a court, or some obstruction of the due and proper administration of justice in a pending case, or some misconduct of an officer of the court.</p> <p>2. Contempt — Power of Court to Punish for. — The power to punish for contempt is inherent in all courts. Its existence is essential to order in judicial proceedings and to the enforcement of orders, judgments and writs of courts, and consequently to the due administration of justice.</p> <p>S. Contempt — Acts Not Constituting Contempt. — Where a physician, in contemplation of a pending suit by a party to recover damages for personal injuries sustained by the alleged negligence of another, treated the party in a professional way for the purpose of making evidence that would sustain the action that was soon afterwards brought, when he knew the party was not injured, he was not guilty of contempt, and could not be proceeded against or punished by contempt proceedings, although he might have been proceeded against and punished by indictment. If, however, in a pending suit a physician had been guilty of this conduct, it would be a contempt of court.</p> <p>4. Contempt — Prosecution for Not. Bar to Indictment in Prosecution for the Same Offense. — There are some offenses that are at the same time contempts of court and indictable crimes, and in this class of cases punishment for contempt will not bar punishment under indictment for the larger offense.</p> <p>5. Contempt — When Attorney or Officer of Court May Be Punished for. — An attorney or officer of the court who is guilty of conduct calculated to embarrass the court in the performance of its duties, or who attempts by improper methods to secure or suppress evidence or obtain favors by deceitful means, would be guilty of an offense punishable in a contempt proceeding, although this conduct or these acts were not committed in a pending case. A higher standard of duty is exacted of court officers than is demanded of others, and they might be guilty of contempt of court by committing acts that would not amount to contempt if committed by other persons.</p> <p>6. Witnesses — Evidence—Prosecution for Securing False Evidence or Suppressing Evidence. — Where a person, in aid of a contemplated suit, endeavors to persuade a party .that he has been injured by the negligence of another, when in fact the party has not been injured, and this is ltnown to the person prevailing on him to say he is, such person is guilty of the common law misdemeanor of obstructing justice and may be punished for this offense by a fine in any amount or by imprisonment for any time oi both by such fine and imprisonment. And this offense is complete when the person attempts by fraudulent methods to secure the institution of the suit, although it may never be brought.</p>

<p>1. Mines — Section 2739b, Subsection 7, Ky. Stats. — Where the use oí headers is customary or necessary in propping the roof of a mine, the mine owner should supply them in order to comply with section 2739b, subsection 7 of the Kentucky Statutes.</p> <p>2. Mines — Assumption of Risk. — Where the miner was under contract to dig the coal and take care of the slate, and the company was to furnish props, headers, etc., the miner did not assume the risk of falling slate that seemed sound, where the company had failed to furnish headers as requested.</p>

<p>1. New Trial — Newly Discovered Evidence. — A new trial will not be granted where, tbe ground of reversal was not relied on in the lower court in the motion for a new trial.</p> <p>2. Husband and Wife — Incompetency of Husband to Testify. — A wife took poison and in an action by the wife against a physician for failure to label the poisonous medicine prepared for the husband, the fact that the husband carried other medicine from the physician to the wife, did not constitute him such an agent of the wife as to render his evidence competent in her behalf.</p>

<p>Principal and Agent — Facts Insufficient to Show Agency. — Where tbe wife owned a farm that was operated and managed by ber busband, wbo was also engaged in speculating in tobacco, tbe wife, altbougb sbe would be liable as principal for the acts of ber •busband in tbe management of her farm, could not be held responsible for his losses incurred in speculating in tobacco or for bis failure to perform contracts growing out of tobacco speculations.</p>

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

<p>Deeds — Construction and Operation — Estates and Interests Created. — Where the term “heirs of her body,” is used interchangeably with the words “her children,” and it is apparent that the latter were used in the primary sense and the former as descriptive, they will be construed as words of purchase, not of limitation.</p>

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

<p>1. Sales — Breach of Warranty — Remedies of Buyer — Compliance With Conditions of Contract. — A contract for the sale of a traction engine warranted the machine, and provided that if within five days from its first use it should fail t'o fill the warranty, notice should be given to the seller and reasonable time allowed to remedy the defect, and if, after notice and opportunity to remedy had been provided, the machine could not be made to fill the warranty, the machine should be returned by the buyer. The purchasers, with knowledge of certain defects, retained and used the machine for a period of 10 months without offering to return it. Held, that as the purchasers failed to return or offer to return the machine within a reasonable time, the sale became absolute, and the, purchasers’ liability on the purchase money notes was fixed.</p> <p>2. Sales — Warranty—Authority of Local Agent. — Where, under the terms of a written contract of sale of a traction engine, agents were not authorized to make, any change in the contract, and after the contract and purchase money notes had been executed, the agent told the purchasers to take the engine home or try to take it “at the company’s risk and the company’s expense,’’ such representation was not within the agent’s authority, and did not operate as a waiver of a condition of the contract requiring the purchaser to return or offer to return the engine within a reasonable time.</p>

<p>1. Eminent Domain — Condemnation—Right of Way by Telegraph Company of Railroad Right of Way — Construction of Section 4679a Ky. Stats. — Under Sec. 242 and Sec. 248 of the Constitution, the County Court may impanel a jury of 12 men in a proceeding by a telegraph company to condemn a right of way of a railroad company under Sec. 4679a Ky. Stats, and the Statute is valid.</p> <p>2. Eminent Domain — Condemnation—Form • of Judgment. — The form of judgment given in section 7 of the act is to be read with section 3, of the act; tbe act means that the court must determine what is appropriated.</p> <p>3. Eminent Domain — Condemnation—Section 4679a Ky. Stats. — Validity. — The invalidity of the provision of section 8, as to the telegraph company taking possession on giving bond as therein provided does not render the act invalid.</p>

<p>1. Criminal Law — Continuance.—Where a motion is made for the continuance of a criminal ease at the same term at which the indictment was found, upon the ground of the absence of a witness, it is not error for the court to overrule the motion and proceed with the trial, instructing the jury, under section 189 of the Criminal Code, that it must treat the statements attributed to the absent witness, as true.</p> <p>2. Criminal Law — Statement of Co-conspirator. — Upon a trial for •conspiracy to murder, a statement made by one of the conspirators before the murder as to what her co-conspirator would do in carrying out the conspiracy, is competent evidence upon the trial of the co-conspirator.</p> <p>3. Criminal Law — Continuance—Practice.—Where the affidavit as to what an absent witness would testify has been taken as true, as provided by section 189 of the Criminal Code, it is error to admit proof impeaching the character of the absent witness.</p> <p>4. Criminal Law — Dying Declaration. — A dying declaration made to different persons upon separate occasions may be shown by parol evidence, although the last statement was reduced to a writing, which was subsequently destroyed by fire.</p> <p>5. Criminal Law — New Trial — Newly Discovered Evidence. — The general rule is that a new trial will not be granted for newly discovered evidence which is not decisive in character, and which merely goes to impeach a witness; but where the newly discovered evidence bears directly upon the principal issue on trial, and • may have a preponderating influence upon another trial, a new trial should be granted, although the newly discovered evidene® tends only to impeach one of the principal witnesses.</p>

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

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

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

<p>.1. Master and Servant — Helper in Mine. — Where a head miner, employed in mining coal at a fixed price per ton, employs a “helper” or assistant, who is paid by the mine owner out of the money due the head miner, the relation of master and servant exists between the “helper” and the mine owner.</p> <p>‘2. Mines — Duty to Prop Roof. — Subsection 7 of section 2739b of the Kentucky Statutes, does not impose the duty of propping the roof of a mine upon the miner, or the mine operator; that duty may, by agreement or custom, be imposed upon either the miner or the mine owner.</p> <p>3. Practice — Contradicting of Witness by His Deposition. — Under section 597 of the Civil Code, the deposition of a witness taken by the defendant may be read to contradict and impeach the witness who testifies orally upon the trial; but if the oral testimony is not contradicted by the deposition, a refusal of the trial court to permit the deposition to be read is not a reversible error.</p> <p>4. Negligence — Assumption of Risk. — A servant is not called upon to set up his own unaided judgment against that of his superiors, and he may rely upon their advice and still more upon their orders, notwithstanding misgivings of his own. The servant’s dependent and inferior position is to be taken into consideration in determining whether the servant has been guilty of contributory negligence.</p> <p>6. Negligence — Assumption of Risk. — Risks incurred under coercion are not assumed.</p>

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

<p>1. Verdict — When Will Not Be Set Aside. — The verdict of a jury will not be set aside because the jury credited certain witnesses rather than others.</p> <p>2. Railroads — Passenger Alighting From Train — Contributory Negligence. — A person who steps from a slowly moving passenger train as it is starting from a station is not per se guilty of contributory negligence. Whether he acted as a man of ordinary prudence might be expected to act under the circumstances is ordinarily a question for the jury.</p> <p>3. Railroads — Assisting Passenger on Train. — A person who goes on a train to assist a passenger to get on with notice to the defendant of his intention may recover if the train is started without giving him a reasonable time to get off.</p>

<p>1. Wills — Construction of. — Under a will providing that a testator’s wife wlio was the executor should hold and manage the testator’s farm as «he should think best for the interest of herself and the children or that in case she should find that she could not manage the farm and stock profitably she might rent it out or have it worked on the shares, or if it should be the desire of his wife to dispose of the estate both real and personal, she might dispose of it by a private or a public sale and distribute the proceeds as directed in the will, the wife was not required to elect at the death of her husband whether she would hold the farm or sell It but might rent It out for some years and if she found this unsatisfactory she might sell the property.</p> <p>2. Wills — Construction of. — The will being of record and all parties interested having notice of its proceedings, the widow is .not estopped to exercise her power of sale by the fact that one of the sons bought out others upon the ground that she had elected not to sell the property, she having, in fact, not said or done anything to mislead him.</p> <p>3. Wills — Codicil—Construction of. — The original will providing that the wife should have $8,000 if the property was sold and in case the estate should realize more than $24,000 then she should receive one-third of the entire amount of the proceeds of the sale, and a codicil providing that if the estate, be it more or less than $24,000, the wife should have $8,000; the original will is modified by the codicil and the wife is entitled to only $8,000 when the property is sold, although it may bring $48,000.</p>

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

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

<p>Municipal Corporations — Officers, Agents and Employes — Liabilities on Official Bonds. — Tbe marshall of a city of the fifth class is not liable on his official bond for the acts of one-day policemen appointed pursuant to the provisions of Section 3629, Kentucky Statutes.</p>

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

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

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

<p>1. Land — Ejectment—Natural Monuments — Definite Location. — While ordinarily natural monuments and not distances control, yet the natural monuments must be located with reasonable certainty.</p> <p>2. Land — Ejectment—Natural Monuments — Distances — Conflict.— Evidence. — In an action in ejectment, held, that in view of the doubt, confusion and uncertainty as to the proper location of the natural monument called for, the distance called for by the patent, and not the natural monument, should control.</p>

<p>1. Wills — Tenant of Determinable Fee — Alienation.—The power of a tenant of a determinable fee to alienate or devise it cannot, properly speaking, be said to be, in any way restricted; he may alien at pleasure, and the assignee or devisee takes a like estate of inheritance, determining upon the happening of the event which would have determined it in the hands of the donee or his heirs.</p> <p>2. Wills — Descent—Construction.—Where land is devised to the testator’s daughter upon the condition that if she should, at any time, die without leaving ■ issue her portion of the estate should go to her brothers and sisters then living, or their descendants then living, per stirpes, the daughter takes a fee defeasible only upon her dying without leaving issue; and she having conveyed the estate during her life-time, her surviving children have no interest therein.</p>

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

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

<p>1. Evidence — -Incompetent—Prejudicial.—Where plaintiff, in an action on an insurance policy, was permitted, over defendant’s ■objection, to testify to communications between her and her ■deceased husband, and concerning verbal statements of transactions with and acts done or omitted to be done by her husband, and such evidence had an important bearing on the suicide and insanity previsions of the policy; held, that its admission was ■prejudicial to the substantial rights of the defendant.</p> <p>2. Insurance — Action on Policy — Instructions.—In an action on an insurance policy containing a provision invalidating the policy if the insured “become so far intemperate, or use opiates, cocaine, chloral or ether narcotics or poison to such an extent as to impair his health,” the instructions should he substantially in the language of the policy itself, and an instruction is erroneous which requires the jury to believe that the insured died as a result of one of these causes.</p>

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

<p>Bills and Notes — Bill of Exchange — Limitation.—A negotiable note is not placed upon the footing of a bill of exchange as long as it remains in the hands of the payee, and therefore the five-year statute of limitation provided by section 2515 Kentucky Statutes, does not apply.</p>

<p>1. New Trial. — In case of a default judgment, motion for a new trial does not come too late, if made during tlie same term of court at which the judgment was rendered, although more than three days after judgment.</p> <p>2. Corporations — Process—Service of. — Section 571, Kentucky Statutes, requiring corporate agent to be designated upon whom process may be served, does not annul the Code provisions with reference to service of process. Service upon the corporation’s chief officer or agent in the county where the action is brought, although not the designated statutory agent, is sufficient to bring the corporation before the court.</p> <p>8. New Trial. — Ignorance or negligence of defendant’s attorney which resulted in default judgment against it, does not constitute such accident or surprise as will authorize a new trial.</p> <p>4. New Trial — Malicious Prosecution — Advice of Counsel — Torts.—■ The rule that advice of counsel is good defense to actions for malicious prosecution, does not apply to a motion for a new trial of, and is no defense to an action for ordinary tort.</p>

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

<p>Fraud — Deeds.—Although the execution of a deed was procured by fraud, persons having no connection with the fraud and no notice of it, who acquired, in good faith, liens on the property while the title was in the fraudulent vendee, are not affected by his fraud, and are entitled to subject the property to the payment of their lien debt.</p>

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

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

<p>1. Judgment — Vacation or Modification by Same Court — Sec. 518, Civil Code. — In an action to set iiside a judgment partitioning lands, held that the facts constituted a case of unavoidable casualty or misfortune, preventing a party from appearing or defending, under Section 518, Civil Code, and that plaintiffs were entitled to relief.</p> <p>2. Land — Partition—Court Without Authority ‘ to Direct Commissioners — Section 499, Civil Code. — Under Section 499, Civil Code, the court has no authority to partition land, or direct the commissioners how to make the division, but where a party is entitled to such relief, the partition should he set aside and new commissioners appointed to make proper partition.</p>

<p>Appeal — When Rehearing Will Be Granted. — Where judgment was reversed on an imperfect record, and appellee did not know of the defect, and had no reasonable opportunity to discover it, rehearing will be granted appellee on the corrected record if it shows that the judgment should not be reversed. Former opinion will be withdrawn and the judgment affirmed.</p>

<p>1. Taxation — Delinquent Tax Sales — Limitation.—The act of 1912 providing a limitation for actions brought to enforce delinquent tax sales does not apply to actions brought before its passage.</p> <p>2. Taxation — Assessment—Purchaser Without Notice. — An assessment in the name of E for wife is insufficient to sustain a sale as against a purchaser of the property from the wife without notice.</p> <p>3. Taxation — Tax Sale — Liens.—The tax sale though voidable gives the purchaser thereat a lien for his money and interest. 1</p> <p>4. Judgment — Offer to Confess — Costs—Interest.—An offer to confess judgment not being accepted, the plaintiff not recovering more must pay the defendant’s costs thereafter but is entitled to interest on the money.</p>

<p>1. Conspiracy — Evidence.—Under a charge of conspiracy to intimidate by throwing lighted cannon crackers into and about the cell where the person sought to be intimidated is incarcerated, it was error to permit evidence to the effect that a month or more before the occurrence there had been found on a farm near the town packages of large fire-crackers, there being nothing in the evidence to connect either of the alleged conspirators with the ownership or possession of these packages.</p> <p>2. Conspiracy — Evidence.—Even if the connection of either one of the conspirators with this package had been established, it would have been inadmissible as evidence of a conspiracy charged to have been formed a month or more later.</p> <p>3. Conspiracy — Evidence.—Under such a charge evidence that repeated occurrences of a similar nature had occurred in the town, with which neither of the conspirators is shown to have been connected, was inadmissible.</p>