Volume 161 — Kentucky Reports

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

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

<p>1. Judgment — Must Be Signed. — It is indispensable to the validity of a judgment that it shall be entered in a book provided for that purpose, and signed after being so entered by the presiding judge or justice of the court.</p> <p>2. Judgment — To Be Signed by Successor. — Under section 977 of the Kentucky Statutes, a circuit judge has the right to sign any orders of court left unsigned by his predecessor in office.</p> <p>3. Courts of General Jurisdiction — Presumption.—Every presumption is in favor of the regularity of the proceedings of courts of general jurisdiction; their judgments cannot be collaterally attacked unless the want of jurisdiction appears upon the record.</p> <p>4. Insane Persons — Idiot—Inquest Every Five Years. — Under section 2167 of the Kentucky Statutes the court is required, every fifth year after the first inquest was held upon an idiot, to hold another inquest before any order shall be granted by the court for the maintenance of the idiot out of his own estate, or out of the State Treasury.</p> <p>5. Insane Persons — Idiot—Committee—Appointment of. — Section 2167 of the Kentucky Statutes authorizing the holding of quinquennial inquests upon idiots does not authorize the court to appoint a new committee for the- idiot upon the holding of such subsequent inquests; the committee originally appointed is to continue in office unless removed as provided by law.</p> <p>6. Insane Persons — Committee—When Removable. — Where a committee of an idiot has been appointéd, and has executed bond, he can not be removed except for cause.</p> <p>7. Executors and Administrators — Who Entitled to be When Next of Kin is Incompetent to Act. — Under section 3896 of the Kentucky Statutes which authorizes the court having jurisdiction to grant administration of a decedent’s estate to the relations of the decedent who apply for the same, preferring the surviving husband or wife, and then such others as are next entitled to administration, “the relations” or next of kin of the deceased are those persons who take the personal estate of the deceased under the statutes of distribution.</p> <p>8. Executors and Administrators — Committee of Idiot Distributee Entitled to Appointment. — When, the person who is next of kin and entitled to qualify as administrator under section 3896 of the Kentucky Statutes is an idiot having a committee, it is proper for the court to appoint the committee as administrator, he being the person in charge of the estate of the idiot who as next of kin, would be entitled to qualify as administrator, were he competent to act.</p>

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

<p>Appeals from Franklin Circuit Court</p>

<p>Appeal from Taylor Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Green Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Nicholas Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Mercer Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Washington Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Pendleton Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Lincoln Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Bobertson Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Marion Circuit Courts Same vs. Same.</p> <p>Appeal from Harrison Circuit Court.</p> <p>Same vs. Same.</p> <p>.Appeal from Christian Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Ohio Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Gallatin Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Carroll Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Owen Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Grant Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Boone Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Clinton Circuit Court.</p> <p>Same vs. Same.</p> <p>Appeal from Garrard Circuit Court.</p>

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

<p>1. Land — Infants—Sale for Reinvestment. — Where an infant owner of a reversion or remainder in real estate is not made a party to a suit for the sale of the same, the sale for reinvestment cannot be justified under section 491 of the Civil Code.</p> <p>2. Land — Sale for Reinvestment. — Joint ownership by two or more persons and indivisibility must concur before a sale of real estate can be had under section 490 of the Civil Code.</p> <p>3. Land — Sale Under Section 490, Civil Code. — Indivisible property owned in remainder by one child cannot be sold under section 490 of the Code upon petition of the owner of the life estate.</p> <p>4. Judgment — When Should Be Set Aside. — Where a judgment for the sale of real property is absolutely void, it is the duty of the court to- set the same aside on his own motion without regard to the sufficiency of the exceptions filed thereto.</p>

<p>1. Costs. — In a suit brought by one for the benefit of others, it was not error for the court to award cost against the others on account of a pleading needlessly filed by them.</p> <p>2. Deeds — -Maintenance—Title.—A deed made to ancestor in consideration of support and maintenance and With restriction of alienation, an order of court canceling ancestor’s conveyance made in violation of the restriction, places the title in ancestor’s heirs-at-law under all the restrictions of his deed.</p> <p>3. Deeds — Construction.—Where a deed conveys, “a certain tract or parcel of land,” without any qualifying or limiting descriptive terms, the grant will not be limited to surface or mineral or any- . thing less than all of the land, although at the time grantor may have believed that the surface only was valuable.</p> <p>4. Deeds — -Alienation Clause. — Mere knowledge by the grantor of the fact that grantee had sold the land in violation of an alienation clause will not amount to consent unaccompanied by other facts which will operate as an estoppel.</p> <p>5. Limitation of Action — Minerals.—As to mineral rights, the statute of limitation does not begin to run against those in possession until some act of interference, ownership or control is exercised by those claiming the minerals.</p> <p>6. . Land- — Forfeiture.—The doctrine of forfeiture only applies to a right which one at some time was legally entitled to maintain, but one cannot forfeit something which he never had.</p> <p>7. Land — -Alienation—Perpetuities.—A restriction of alienation during the lifetime of the grantor is neither unreasonable nor in violation of section 2360, Kentucky Statutes, condemning a restriction of alienation in perpetuity.</p>

<p>1^ Judgment — Vacation, for Failure to Serve Process — Burden of Proof. — A party. may have a judgment vacated on the ground that he was not served,with process, yet he who seeks to have this done assumes the burden of proving the facts essential to entitle him to the relief asked.</p> <p>2. Judgment — Vacation for Failure to Serve Process — Proceedings Anterior to Judgment — Presumption.—Where a party seeks to vacate a judgment on the ground that he was not served with process, presumptions will he indulged, requiring evidence to overcome them, of the regularity and validity of the proceedings in the case anterior to judgment, and of the correctness of recitals in the record.</p> <p>S. Judgment — Vacation for Failure to Serve Process — Evidence.— Where, 18 years after the rendition of a judgment, a motion is made by one of the defendants to have it set aside because he, at the time of the institution of the action, was an infant under 14 years of age and was not properly served with process, and the order book and the judgment show that a guardian ad litem was appointed and defended for the infant defendant and the judgment recites that he was duly served with process by delivering a copy of the summons to his mother, with whom he resided, evidence held insufficient to overcome the presumption of regularity in the proceedings and of the truth of the recitals shown by the judgment, or to justify the conclusion that no process was served on the infant defendant.</p>

<p>1. Vendor and ■ Purchaser — Bona Fide Purchasers — Constructive Notice and Facts Putting on Inquiry. — Mere inadequacy of consideration is- not sufficient to constitute constructive notice of the adverse claims of third parties, thereby withdrawing from the pur- • chaser the. protection of the rule, that a bona fide purchaser is not affected by the claims or title of third persons; ’ hut one is’ not a bona fide ’ purchaser where the consideration ' paid ’’is grossly' inadequate, or the inadequacy is so ■ palpable as to' raise’ a conclusive inference that the' purchaser abstained from ■ -'-inquiry' for-the very purpose of ¿voiding notice..</p> <p>2. Adverse Possession — Hostile Character of Possession — Possession Becoming Adverse After Amicable. Entry. — Where a possession was in its origin amicable, it requires open acts of renunciation sufficient to raise a-presumption of notice thereof-upon the part of the legal title holder, in order to constitute such a disseizin as will initiate an adverse possession and -set the - statute ; in motion. •</p>

<p>Witnesses — Competency—Member or Shareholder of Corporation — ■ Transactions With Decedent. — The shareholders of a banking corporation were incompetent to testify concerning the acts, statements of, and transactions had by them with, a deceased assistant cashier of the bank in respect of his relations to the bank, in an action against his estate, brought by the surety on the bond executed by him to the bank for the faithful performance of his duties, to recover the amount of an alleged misappropriation by the deceased, of funds of the bank, the surety having paid to the bank the amount thereof. Such testimony is forbidden by sub-sections 2 and 7 of section 606 of the Civil Code of Practice.</p>

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

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

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

<p>1. Contracts — Jurisdiction—Action Against Corporation — Civil Code, Section 72. — Under Section 72 of tbe Civil Code, an action may be brought on a contract against a corporation in tbe county in which the contract is made or to be performed.</p> <p>2. Contracts — Where Made — Acceptance.—A contract is executed at the place where the acceptance is made.</p> <p>3. Contracts — Where Made — Acceptance.—A contract was signed by defendant in Powell County and mailed to plaintiffs in Harlan County, where it was signed by plaintiffs and returned by mail to defendant. Held, that the contract was completed in Harlan County.</p> <p>4. Contracts — Alteration—Immaterial.—Where defendant executed a contract and mailed it to plaintiffs, who, before signing, changed the figure “3” in 3,000 to “2,” held, that this did not invalidate the contract or qualify the acceptance of the offer, where the words “three thousand” were written out, and the word “three” was not changed, but was clear and legible, and where the parties proceeded to carry out the contract as if no change in its terms had been made or attempted.</p> <p>5. Contracts — Logging Contract — Failure to Brand Logs — Evidence. —Where plaintiffs sought to recover, under a logging contract, the value of certain logs alleged by plaintiff to have been lost because they were not branded, and it not appearing in the contract that it was defendant’s duty to brand the logs, held under the evidence that plaintiffs were not entitled to recover.</p> <p>6. Contracts — Logging Contract — Shrinkage- Evidence — Finding of Jury. — Where plaintiffs sought to recover under a logging contract, for shrinkage of certain logs, and the evidence was conflicting, held that a finding in favor of plaintiffs on this item was not excessive or flagrantly against the evidence.</p> <p>7. Appeal — -Separate Findings by Jury. — Where a jury makes two separate findings in plaintiffs’ favor, one under an erroneous instruction and one under a proper instruction, the judgment may be reversed for the erroneous item and affirmed as to the other.</p>

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

<p>1. Divorce — Proof Not Authorizing a Divorce a Vinculo May Be Sufficient To Authorize a Divorce a Mensa et Thoro. — Where all the evidence introduced for the wife shows that she has a strong affection for her husband and child, is regardful of her marital duties and is not of a fault-finding or complaining disposition; and further, that the husband is fault-finding and wholly unappreciative of the obligations he owes to the wife and fails to provide a support for her and their child; and such evidence is uncontradicted by any evidence introduced by the husb/and, the presumption will not be indulged from her leaving him that she did so without fault upon his part. In such case the husband does not relieve himself of blame by merely showing that the wife left him. His testimony must go farther and show some cause for her doing so. Evidence examined and held sufficient to authorize the granting to the wife of a divorce a mensa et thoro.</p> <p>2. Children — Custody of Child — When It Should go to Mother.— Where parents are separated by divorce, although prima facie the abstract right and duty of the father are superior to those of the mother, yet the court dissolving the union should confide the care and custody of their infant child to the parent most trustworthy and capable; and if neither of them shall be worthy of such a trust, the interest of the child may authorize the transfer of the custody to a third person. If the child has reached years of discretion its wishes will be considered, but will not always control. As between the parents the tendency of the courts is to give a very young child to the mother. In this' case,, the child being only three; years of age and the mother being, shown by the- evidence in all respects fitted to have its care and training, the action -of the circuit court in giving its. custody to the mother is approved.</p>

<p>1. Trusts — Resulting Trust — Wliat Is — When. Enforceable. — Where a trust is raised by equity in behalf of one who has been imposed upon by another, it is enforced to work out justice and in spite of the intention of one of the parties. Such a trust, though frequently called a resulting trust, is, more strictly, a constructive trust. But in order to establish a resulting or constructive trust by parol proof, such proof must be of the most convincing character.</p> <p>2. Trusts — Deed from Father-in-law to Son-in-law — When No Implication of Trust Arises. — Where a deed, made in 1847 by the grantor to the husband of his daughter, for the recited consideration of ■“natural love and affection to his (the grantor’s) daughter,” and “the full sum of eleven hundred dollars, in hand paid” by the grantee (son-in-law), the receipt of which is acknowledged, conveyed him eleven hundred acres of land, the son-in-law being the only grantee named in the deed and its language vesting in him alone a fee simple title to the land conveyed; and there was never any intimation from the grantor or grantee, though the former lived thirty-five and the latter sixty-five years after the-conveyance, that a trust was intended for the benefit of the grantee’s wife; and the only evidence offered to establish the trust were certain fugitive statements of the wife, not made in the presence of her husband or father, that the land conveyed by deed to her husband came from her father or had been given her by her father; held, that there was a failure to establish the trust.</p>

<p>1. Master and Servant — Injury to Servant — Mines—Duty to Prop— Custom of Mine. — While ordinarily it is the duty of the master to furnish the necessary props, and the duty of the miner to prop his own room, yet where a room has been practically worked out, and is used as a roadway for a loaded car to reach the entry, the question whether it is the master’s or the servant’s duty to prop the roof over the roadway will depend on the custom of the mine.</p> <p>2. Master and Servant — Injury to Coal Miner — Duty to Prop — Evidence — Question for Jury. — Where plaintiff, a coal miner, was injured by falling slate while working in a room which had been practically worked out and was being used for a roadway, held, that there was sufficient evidence that it was the master’s duty to prop the roof over the roadway, and that he had failed to do so, to take the case to the jury.</p> <p>3. Master and Servant — Injury to Coal Miner — Removal of Props by Miner. — Where the master has propped the roof of the room in which a coal miner is working, and the props are knocked down by tbe miner, tbe miner cannot recover for injuries resulting from falling slate caused by tbe removal of tbe props.</p>

<p>1. Taxation — Sale of Property of Married Woman — Rights of Purchaser — Redemption.—Under sections 4156 and 4160, of the Kentucky Statutes, the land of a married -woman sold for taxes may be redeemed at any time within five years from the date of sale, and the purchaser cannot get a fee simple title to the property until the right of redemption has- expired, although he may get possession of the property by giving the notice provided for in sections 4151-2-3.</p> <p>2. Taxation — Sale by Revenue Agent — Deed by Auditor — When May Be Made. — Under section 4154 a revenue agent is not authorized to sell the land of a minor, lunatic, married woman or person under disability until the right to redeem given by section 4156 and 4160 has expired.</p> <p>3. Taxation — Possession of Purchaser — Lien of for Taxes and Improvements — Rents.—When a purchaser buys land at a tax sale and gives the notice provided for by sections 4153 and 4156, he may take possession of the property and retain the same until it is redeemed, or until the right of redemption expires, at which time he may get a fee simple title. But if the property is redeemed the purchaser will have a lien for the amount of the purchase price, with the interest and penalties provided for by the statute, as well as a lien for money expended in recording deeds and certificates, with legal interest thereon. He will also have a. lien for lasting and valuable improvements -made to the extent of the amount they increase the vendible value of the land, but should be charged with rents during the time he has had possession,</p> <p>4. Taxation — Purchaser at Tax Sale — When Must Give Notice to Owner — Effect of Notice on Rights of Purchaser. — The purchaser at a revenue agent’s sale, under section 4154, is not required to give notice to the owner, but if the purchaser at a collector’s or sheriff’s sale is an individual he must give the notice required by section 4153. or section 4156, whichever is applicable, or else he will not be entitled to the land but only to a lien for the amount paid for it, with legal'interest. But if-he gives the notice, he’is entitled to interest and penalties as provided in section 4151-2.</p> <p>6. Taxation — Sale of Real Property — Duty of County Attorney to Give Notice — Effect of Failure. — Where land is bought in- by the - State, county and taxing district, the county attorney and sheriff should give notice to the purchaser, as required by sections 4153 and 4158, but the failure to give this notice does not affect the rights of the purchaser.</p>

<p>Monopolies — Trusts and Other Combinations In Restraint of Trade — Criminal Prosecutions. — A prosecution upon an indictment found under the Act of May 20, 1890, Kentucky Statutes, sections 3915 to 3921, commonly known as the Anti-Trust Statute, and the Act of March 21, 1906, Kentucky Statutes, section 3941a, commonly known as the Pooling Act, is controlled by the opinion of the United. States Supreme Court in the case of International Harvester Company of America v. Commonwealth of Kentucky, 234 U. S., 216.</p>

<p>1. Prison Commissioners — Powers o? Board of — Convict Labor.— Under section 3807 of the Kentucky Statutes'the Board of Prison Commissioners lias authority to hire out the convict labor, and is invested with large authority to enable it to exercise the power conferred.</p> <p>2. Prison Commissioners — Hiring Convict Labor — Power of Board to Renew and Consent to Assignment of Contract.' — Under the statute the Board of Prison Commissioners has the power to renew the contract for a term of years when it is so stipulated in the contract, and also the power to consent to the assignment by the contractor of its contract, and the assignee has the same right to demand a renewal of the contract as the original contractor would have had.</p> <p>3. Public Policy — Convict Labor. — As the Legislature of the State has for many years continuously and by the enactment from time to time of various laws authorized its boards having charge of the penitentiaries of the State to lease the convict labor, and this legislative authority was conferred by the Constitution, these legislative enactments manifest that the public policy of the State is in favor of hiring out the convicts, and the courts are not at liberty to interfere with the validity of contracts made by the Board of Prison Commissioners upon sentimental or humane grounds. The question of the control and disposition of the convict labor is purely an administrative function lodged in the law making department of the State.</p> <p>4. Agents — Public Agents and Boards Created by Statute — Powers of. —The public agents and boards created by statute are limited by the provisions of the statute creating them. They have no right to exceed the powers conferred by the statute or to prejudice the rights of the State by acts not fairly authorized by the statute. There must be in every instance authority, express or implied, for the acts of the board or agent found in the statute.</p> <p>5. State — Suit Against — When Agent of State May Be Sued. — Section 231 of the Constitution provides, in substance, that the State shall not be sued without legislative permission, but agents or boards created by the State, whether quasi corporations with the right to sue and be sued or not, may be compelled to do something that the State authorizes them to do, or be restrained from doing things that the State does not authorize them to do, when it is necessary to compel or restrain, as the case may be, to prevent injury or injustice to the complaining party.</p> <p>6. State — Agents of the State — Public Agents — Suit Against. — Public agents of the State ought not to be allowed to perpetrate a wrong or commit a breach of contract and prevent the injured party from seeking redress in court by shielding themselves behind the barrier that the State, upon grounds of public policy, has erected for its protection against suits, unless the suit falls plainly within the prohibited class. The Commonwealth does not desire to wrong any of its citizens or any one else. It wants, as do all well-governed states, to do what is right.</p>

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

<p>1. Deeds — Obtained by Fraud and Undue Influence — Evidence of. — t When a suit is brought to set aside a conveyance on the ground of fraud or undue influence, the court must of necessity look to circumstances rather than to facts, to the situations of the parties, to the conditions that surround them, to the attitude that they oc-* cupy toward each other, and the influences that control their actions, and putting together these various things determine whether the transaction ought to be upheld or not.</p> <p>2. Deeds — Action to Set Aside for Fraud or Undue Influence— Burden of Proof. — When a deed is made by an old and feeble person to a young person who has the care of him, there at once arises a strong presumption of undue influence on the part of the grantee, and there is put upon him the burden of showing that the gift or conveyance or favor of value, whatever it may be, was not obtained by any improper methods.</p> <p>3. Deeds — Cancellation of for Fraud or Undue Influence — Facts.— Where a man 78 years old, in feeble health and dependent condition, conveyed his property to one of his sons in consideration of care and attention, the burden was upon the son to show by convincing evidence that it was the free and voluntary act of the grantor, and failing to do this, the deed should be set aside and the son have reasonable compensation for his services.</p>

<p>Adverse Possession — Nature and Requisites — Character and Elements of Adverse Possession in General. — The actual possession of land (where the legal title holder is not in actual possession under his deed, may be acquired by an entry upon and actual inclosure or other equivalent physical occupancy of a portion of the land claimed, accompanied by a claim to additional land not so held by actual inclosure or other equivalent physical occupancy, in which event, if the claimant enters under color of title his paper title is evidence of the extent of his claim as to such additional lands, or if he enters without color of title, the extent of such additional claim may be evidenced by a well-marked line or well-defined boundary. But, where the legal title holder of the land upon which such entry is made, is in actual possesssion under his deed, then the entrant will be deemed to acquire actual possession of only so much of the land as he disseizes the legal title holder of, by actual inclosure or other equivalent physical occupancy.</p>

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

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

<p>Attachment — Quashing, Vacating Dissolution or Abandonment — Reinstatement. — Under Section 270 of the Civil Code, it is required that a copy of the record be presented to a judge of the Court of Appeals when a motion to reinstate an attachment is made, and this includes not only the pleadings, but also the evidence heard and considered by the trial court on the motion to discharge. If the evidence so heard and considered by the trial Judge was oral, it should be preserved and certified as bills of exceptions in ordinary actions are required to be certified upon appeal. If the evidence so considered was by depositions, a transcript thereof should be prepared and certified as is required in equitable actions upon appeal, and unless the order discharging the attachment sufficiently identifies the depositions so considered by the trial judge, the transcript should be accompanied by a certificate of the trial judge showing that the depositions therein contained were so read and considered upon the hearing of the motion.</p>

<p>1. Attorney and Client — Employment—Duration.—Ordinarily the employment of an attorney continues as long as the suit or business upon which he is engaged is pending, and comes to an end with the completion of the special task for which the attorney was employed.</p> <p>2. Attorney and Client — Conclusion of Relation at Common Law.— At common law the obtaining of a final judgment- was such a determination of a suit as brought the relation of attorney and Client , to a close.</p> <p>3. Attorney and Client — Setting Aside _ Judgment. — An authority to prosecute a suit gives no authority to.an attorney to set aside the judgment which he obtained under his employment.</p> <p>4. Attorney and Client — Husband and Wife. — Where a wife disavowed her husband’s employment of an attorney who had obtained a judgment for the wife, the attorney had no authority to set aside the judgment. '</p> <p>6. ■ Courts — Modification of Judgment. — A court of continuous session has control over its judgments for- sixty days; thereafter it is without power to1 modify or set asicje a judgment, except by petition and upon the grounds specified ..in sections 518 and -520 of the Civil Code, of Practice.</p>

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

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

<p>1.. Nuisance — Temporary Damage to Keal Property — Measure of Damages. — Where a nuisance is temporary, the measure of damages, where the property is occupied by plaintiff, is the diminution in the value of the use of the property during the continuance of the nuisance or injury, and if the property be rented, it is the diminution in its rental value during the continuance of the nuisance or injury.</p> <p>2. Nuisance — Measure of Damages — Instructions.—In an action for damages for injury to real property resulting from a nuisance, an instruction which permits a recovery both for the diminution in the value of the use of the property and for annoyance and discomfort to plaintiff’s family, is erroneous and prejudicial.</p>

<p>Contracts — Evidence—Petition for Rehearing Overruled. — The petition for rehearing is overruled, it being determined that on the facts as presented the plaintiff should recover. (F-or original opinion, see 160 Ky., 28.)</p>

<p>Pools — Trusts.-—In a penal action against tbe International Harvester Company, following tlie opinion, of the IT. S. Supreme Court, 234 IT. S., 216, the judgment of the lower court is reversed.</p>

<p>Pools — Trusts.—In a penal action against tbe International Harvester Company, following tbe opinion of tbe U. S. Supreme Court, 234 U. S., 216, 589, tbe judgment of tbe lower court is reversed.</p>

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

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

<p>1. Bills and Notes — Presumption of Payment. — A note will be presumed paid where the circumstances indicate that it was included in a later note for a larger amount and both the parties for a number of years after this treated it as paid.</p> <p>2. Judgment — Finding of Chancellor. — The finding of the chancellor on a question of fact will not be disturbed where the evidence leaves the truth doubtful.</p>

<p>1. Damages — Special Damages — Misjoinder.—In a suit for damages to business and credit resulting from a series of malicious wrongful acts, tbe fact tliat each act named is ground for special damages, will not make a misjoinder when the damages are sought for the greater wrong.</p> <p>2. 'Railroads — Shippers.—The law recognizes and establishes the * right of a shipper to every privilege and facility for shipment accorded by a railroad company to other shippers.</p> <p>3. Verdict — Excessive Damages. — Before the court is authorized to reverse because the verdict is excessive, it must be so excessive as to strike one at first blush as being the result of passion or prejudice.</p> <p>4. Evidence. — The admission of incompetent evidence Is not reversible error unless objected to at the time. •</p> <p>5'. Damages. — In the face of a persistent and aggressive wrong, practiced for a purpose without justification in law or morals, it is not the policy of courts to draw close distinctions to determine with unerring accuracy whether the damage is too remote.</p> <p>6. Abatement — Grounds—Pleading.—If the petition does not show the ground of abatement, a demurrer will not raise the question, and to rely upon it one must plead it affirmatively, else an answer will waive it.</p> <p>7. Abatement — Suits—Pending of Two Suits. — To abate an action by reason of tbe pendency of another suit, the two actions must not only be pending at the same time and prosecuted at the time the objection is made, and both be pending between the same parties, but they must both be prosecuted for identically the same cause of action.</p> <p>8. Jurisdiction — Interstate Commerce Act. — The Interstate Commerce Act does not deprive the State courts of their common law jurisdiction.</p> <p>9. Interstate Commerce Commission — Jurisdiction.—The Interstate Commerce Commission has exclusive jurisdiction to grant relief from unreasonable interstate freight rates and to establish reasonable ones.</p> <p>10. Interstate Commerce Commission — Rates.—An order of the Interstate Commerce Commission as to the reasonableness of an interstate freight rate is conclusive, and a rate or classification of a commodity once established by it may be taken advantage of by anyone affected thereby.</p> <p>11. Damages — -Rates.—Reparation for damage by reason of unreasonable interstate freight rates may be sought either before the Interstate Commerce Commission or before the courts.</p> <p>12. Interstate Commerce Commission — Rates.—The finding of reparation by the Interstate Commerce Commission for unreasonable rates on interstate shipments is merely a recommendation, for it cannot compel payment, and its orders in this respect are only prima facie correct.</p> <p>13. Interstate Commerce Commission — Special Damages. — The fact that the Interstate Commerce Commission may have recommended the payment of special damage which flows from violation of a Federal law is no reason why the State court may not take cognizance of a suit based in part upon another result of that act, which, when connected with many other acts of a different nature, will show a wilful and malicious purpose, and give rise to a common law cause of action.</p>

<p>1. Courts — Duty of Magistrate to Issue Warrant. — Under Section 31, Criminal Code, it is the imperative duty of a magistrate to issue a warrant whenever lie shall be satisfied from the information given him on oath that there are reasonable grounds for believing the charge.</p> <p>2. Judgment — Mandamus Will Not Lie to Control. — Mandamus will lie to compel an inferior tribunal to act, but not to control its judgment.</p> <p>S. Courts — Ordinances.—It was error for tlie court to dismiss a petition to compel a police judge to issue a warrant for the violation of a city ordinance, where the pleadings show that the ordinance is valid, and the affidavit was sufficient.</p>

<p>1. Constitutional Law — Counties—Creation of New County — Liability of New for Indebtedness of Old. — Section 65 of tbe Constitution, providing that territory stricken off of one county and added to another, or formed in whole or in part into a new county, shall be liable for its proportion of the indebtedness of the county from which it has been taken, is self-executing, and territory stricken from an old county is liable for its proportion of the debts of the county from which it was taken, although there is no legislation on the subject.</p> <p>2, Counties — How Liability of Territory Stricken from County Ascertained — Payment of. — Where there is no legislation on the subject, the old county may bring a suit in equity against the new county for the purpose of having determined the proportion of the indebtedness of the old county that should be paid by the territory stricken from it, and when the amount has been ascertained, the fiscal court of the new county may be compelled by mandamus to make a levy on the property in the territory cut off sufficient to pay the indebtedness.</p>

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

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

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

<p>1. Executors aad Administrators — Sales Under Order of Court— Purchase by Executor or Administrator. — Where an executor or administrator purchases the property of his decedent, equity will, upon seasonable application, either set aside the sale or declare the purchase a trust for the benefit of those interested in the estate; and it is immaterial whether the purchase is made directly, or indirectly through the medium of an agent.</p> <p>2. Executors and Administrators — Sales Under Order of Court — Purchase by Executor or Administrator — Voidable.—The purchase by an administrator or executor of the property of his decedent is not void, but voidable at the option of persons interested in the estate.</p> <p>3. Executors and Administrators — Sales Under Order of Court— Purchase by Executor or Administrator — Ratification—Laches.— The right to have a sale to an executor or administrator of his decedent’s property set aside or adjudged a trust must he exercised within a reasonable time after the irregular purchase has become known to' the person seeking its avoidance, acquiescence in the sale for a long time will create a presumption of ratification.</p> <p>4. Tenancy- — -Joint Tenancy — Purchase of Adverse or Outstanding Title — Mutual Rights and Liabilities. — A joint tenant cannot purchase or otherwise acquire for his own benefit an outstanding title or encumbrance against the joint estate; but such sale will inure to the joint benefit of him and his co-tenants, provided the other tenants elect within a reasonable time to avail themselves of such adverse title and contribute their ratable share of the expense of acquiring -it.</p> <p>5. Executors and Administrators — Joint Tenant — Purchase by — Trust —Laches.—Where property of a decedent is purchased by the administrator, who is also a joint tenant with the other heirs, fail- • ure on the part -of the other heirs for a period of over ten years to attack the sale or to contribute their ratable share of the expense of acquiring it, will defeat their right to have the sale set aside or adjudged a trust in their favor.</p> <p>6. Deeds — -Commissioners’ Deeds — Failure to Recite Names of Parties — Title.—A commissioner’s deed, even though it fails to recite the names of the parties to the proceeding, passes the title of all the parties to the action, as shown hy the record.</p>

<p>1. Trial — Continuance—Affidavit For. — Although the record does not show that the attorney for the Commonwealth agreed that an affidavit for a continuance might be read as the depositions of the absent witnesses it is apparent that such was the fact because the court overruled a demurrer to the affidavit and proceeded with the trial, and on the trial permitted the defendant to read the affidavit as the deposition of one of the absent witnesses.</p> <p>2. Trial — Continuance—Affidavit for. — Where a defendant waives the right to have introduced as a witness one who is mentioned in the affidavit, and declines to take advantage of the offer of the court to give him the benefit of the evidence of another absent wimess who is sick in bed, he cannot complain.</p> <p>3. Trial — Continuance—Witnesses.—Where the evidence of the absent witness would, as disclosed by the affidavit, not be material if he were present, there is no ground for continuance.</p> <p>4. Evidence — Infants—Testimony of — When Inadmissible. — Where an eight-year-old infant discloses on her preliminary examination that she understood the nature of an oath, and what the consequences would be if she swore falsely, her testimony was properly permitted.</p> <p>5. Evidence. — Evidence examined and held sufficient to uphold the verdict.</p>

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

<p>Land — Action of Trespass to Try Title — Adverse Possession— When Patent Cannot Prevail Against. — In an action to recover damages for the cutting of timber by the defendants on land claimed by the plaintiffs, where the weight of the evidence shows that the plaintiffs, under a deed to their ancestor, entered upon and held actual, adverse and continuous possession of the land, on which the cutting of the timber was done, to a well defined, marked boundary, for more than fifteen years before the institution of the action, the defendants cannot justify the cutting of the timber by showing that the land is embraced within the boundary of a patent issued to their ancestor, -older in date than the deed of plaintiffs’ ancestor. Nor will such possession in the plaintiffs, as indicated, be defeated by yet another patent, older in date than that of defendants’ ancestor also .embracing the land, as the plaintiffs’ possession, being in the lap of both patents, must prevail over the senior as well as the junior patent, although as between the patents the senior in date would prevail.</p>

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

<p>'Appeals from Johnson Circuit Court.</p>

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

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

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

<p>Appeal — Mandate.—The mandate shall not issue until after thirty days after the decision is rendered either in civil or criminal cases, unless the court in delay cases otherwise direct.</p>

<p>1. Agency — Contract Creating. — A contract appointing an agent in designated territory, which authorizes him to employ at his expense, sub-workers, and provides that the principal may terminate the contract as to all or any part of the territory if his work is not satisfactory, by giving certain notice, creates an exclusive agency.</p> <p>2. Agency — Contract of — Breach.—Only certainty to a common interest is required in a pleading, and an allegation that applications were sent in from the agent’s territory, and that his territory was encroached upon, is sufficient to show a breach of a contract for an exclusive agency.</p> <p>3. ' Contracts — Performance.—Where the things to be done by the plaintiff are subsequent in point of time to the things done by the defendant, the plaintiff need not aver performance; his failure to perform is matter to be set up by the defendant.</p>

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

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

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

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

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

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

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

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

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

<p>Master and Servant — Master’s Liability for Injuries to Servant— Tools, Machinery, Appliances and Places for Work — Mines, Quarries and Excavations. — The duty to make safe the place where a goal-miner is at work may be imposed upon either the miner or the mine operator, by agreement or by custom; and where not fixed by agreement, it depends upon the custom in force in the mine at the time. This custom may be shown by witnesses who have proper qualifications to testify upon the subject. The safe place doctrine does not apply where the servant is engaged in work of such nature as to cause a constant change in the conditions as to safety of the place where he is at work; and extracting coal is a work of that kind.</p>

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

<p>Trial — Evidence.—Where the evidence showed in a very convincing way that the plaintiff was entitled to the relief sought, rulings of the trial court excluding offered circumstantial evidence tending in an indirect way to disprove the plaintiff^ contention, did not prejudice the rights of the defendant.</p>

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

<p>1. Title — Sale Under Voidable Judgment. — Title under a sale made under a voidable judgment is subject to be defeated by proper proceedings to set aside the judgment.</p> <p>2. Land — -Setting Sale Aside — Liens.—The purchaser having sold the land and his vendee not being made party to the suit to'set aside the sale until after he had made a mortgage upon it, the mortgagee has a lien which is not defeated by a judgment setting the sale aside.</p> <p>3. Mortgages — Title.—A judgment foreclosing the mortgage in a suit between the mortgagor and mortgagee does not affect the rights of persons not parties to the action, the legal title being in the mortgagor, remains in him as to them.</p> <p>4. Land — -Liens—Rents.—The mortgagee- having bought the land at such a sale and conveyed it to another, his vendee takes the lien which he had and having enjoyed the use of the land rents should be set off against interest.</p> <p>5. Title — Possession.-—Possession which is not continuous for fifteen years will not confer title; and a holding under one rightfully in possession is not adverse.</p> <p>6. Limitation of Actions. — Limitation does not run against a lien holder while in possession of the property.</p>

<p>1. Municipal Corporations — Streets—Original Establishment of Grade — Change of Grade Where Street Not Constructed. — Where the grade of an alley is established, but tjhé'j alley is not constructed according to the grade, a city may establish a new grade and construct the alley in accordance with that grade, without subjecting itself to liability to the property owner who acquired his property and made all of his improvements before the establishment of the original paper grade.</p> <p>2. Municipal Corporations — Establishment of Grade — Injury to Property — Instructions.—An instruction authorizing a recovery if the jury believe that the city engineering department, in establishing the grade of an alley adjoining plaintiff’s property, was guilty of Culpable negligence,, is erroneous, since no recovery can be had for the original establishment of the grade unless the city’s engineering department is guilty of corruption or bad faith.</p> <p>3. Instructions — Measure of Damages. — An instruction which furnishes to the jury no guide for determining the amount of damages that should be assessed is erroneous.</p>

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

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

<p>1. Evidence — Former Evidence — Grounds for Admission in General— Mode of Proof. — In an action upon a policy of fire insurance, where the defense was that insured had set fire to the property, it was error to exclude evidence of what a witness, since deceased, had testified upon insured’s examining trial upon a charge of arson for the burning of the house in which the insured property was stored; and where the testimony of such deceased witness was taken down by a stenographer, while her notes and transcript were not themselves evidence, still it was proper to use them as an aid to memory and to refresh recollection.</p> <p>2. Insurance — Estoppel—Waiver or Agreements Affecting Right to Avoid or Forfeit Policy — Implied Waiver in General. — While it is the rule that the insurer by treating or recognizing a policy as still in force may waive a forfeiture which under the stipulations of the policy it had the right to assert, this rule has reference only . to forfeiture for breach of promissory warranties or conditions subsequent contained in the contract; and does not apply where the insured himself sets fire to the property covered by the policy. There is no stipulation for forfeiture in such event. The insured simply cannot recover for loss caused by bis own wrongful act.</p> <p>3. ■ Trial — Reception of Evidence — Objections—Sufficiency and Scope. —Where objection was made to tbe competency of a witness; and tbe witness was competent to prove certain relevant facts to which she testified, a general objection to her competency would not reach the relevancy of a particular question or answer.</p>

<p>1. Land — Obligation to Convey — Lapse.—Where an extension of time to purchase is given, the obligation to convey will lapse at the expiration of the extended time.</p> <p>2. Pleading — Equities.—Under a prayer for “all proper relief,” the court is warranted in fixing the equities as shown by the pleadings and proof.</p> <p>3. Dower — Mines.—Dower will not attach to unopened mines, but mines opened any time during coverture are subject to dower.</p> <p>4. Waste. — A sale or commercial use of minerals or timber by a doweress is waste.</p> <p>5. Parties — Judgment.—Where one is not a party to an action, his interest in the subject matter is not affected by the judgment.</p>

<p>Appeal from Letcher Circuit Court.</p> <p>1. Adverse Possession — Entry and Cutting of Timber — Boundaries.— An occasional entry and cutting of timber on a tract of land by the occupant of an adjoining tract, although both tracts were conveyed by the same deed and the boundary of the tract in dispute is well marked, will not constitute adverse possession of the adjoining tract against one in constructive possession under a senior patent.</p> <p>2. Land — Constructive Possession. — The law does not recognize two constructive possessions of the same land at the same time, and in case of conflict of titles, depending on constructive possession, the older title will prevail.</p> <p>3. Land — Action to Recover Possession — Instructions.—In a suit to recover possession of a tract of land, where both parties claim under patents, it was error for the court to refuse to give a peremptory instruction in favor of plaintiff, when it appears that he was the holder of the elder patent, and the defendant had not been in the actual adverse possession of the land in dispute for as much as 15 years.</p>

<p>Argument of Counsel — Time That Should Be Allowed for — Error in Limiting. — The time that should be allowed to counsel for argument in a jury trial is largely in the discretion of the trial court and this discretion will not be interfered with unless it plainly appears to have been abused. But in a hotly contested jury case, where a number of witnesses testify concerning conflicting issues, it is reversible error to limit argument of counsel to ten minutes.</p>

<p>Married Women. — Contract of. — Where a married woman and her husband executed a contract agreeing to pay a contractor a stipulated sum for building a house on land owned by the husband, a part of the consideration to be paid by the conveyance of a lot of ground owned by the married woman, she was a principal in. the contract, at least to the extent of the value of the lot, and this being so, it was not error to give a personal judgment against her for a sum less than its value.</p>

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

<p>Master and Servant — Injury to Servant — When Master Not Liable. —The master is not liable for an injury to the servant brought about by a defect created by the servant in the progress of the work; and there can be no recovery for the death of a miner caused by a fall of slate which occurred by reason of a change of conditions made by him and his “buddy,” or partner in the work.</p>

<p>¡L. Principal and Surety — Assignment—Liens.—Where one becomes-the surety of a debtor to enable him to raise money to pay a debt, secured by a lien, under an agreement that the secured debt is. to be assigned to the surety to indemnify him, and the debt is. actually assigned to the surety by the creditor pursuant to the agreement, the assigned debt, together with the lien to secure it, remains in force for the benefit of the surety.</p> <p>2. Principal and Surety — Assignment.—But if no assignment be made to the surety, and his contract remains entirely in parol, it is unenforcible.</p>

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

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

<p>1. Trial — Reopening of Case — Refusal.—Where a plaintiff rested his case, and the defendant made a motion for a peremptory instruction, it was within the discretion of the trial court to reopen the case and permit the plaintiff to introduce further evidence; and unless there has been an abuse of discretion, the ruling of the trial court in refusing to reopen the case is not a reversible error.</p> <p>2. Trial — When Question of Negligence May Be Decided As One of Law. — Where there is no room for an honest difference of opinion among intelligent men as to whether the conduct of the defendant was that of an ordinarily prudent man, in view of the facts and circumstances surrounding him, the question of the defendant’s negligence may be decided by the court as one of law.</p>

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

<p>1. Master and Servant — Injury to Servant — Negligence.—Where a person drives through a door or under a trestle, right before his eyes, he must take notice of the size of the door or of the trestle, and not place himself in a position where there is a liability of his being struck.</p> <p>2. Master and Servant — Injury to Servant — Negligence—Evidence.— Where plaintiff, a driver in the employ of a third person, engaged in delivering staves to defendant, was directed l>y defendant’s foreman to drive under a trestle when the usual passageway was blocked, and while endeavoring to avoid a line of stumps was struck by a bolt on the trestle and injured, held, that as his position on the wagon brought him in close proximity with the trestle and the trestle and the stumps were right before his eyes, and with knowledge of their existence he deliberately took the chance of coming in contact with the trestle, he was guilty of negligence in failing to exercise ordinary care for his own safety, and the facts did not warrant a recovery.</p>

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

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

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

<p>Appeal — Amount in Controversy — Dismissal.-—Where the amount in controversy is less than $200, exclusive of interest and cost, the appeal -will be dismissed.</p>

<p>Instructions — Measure of Damages in Personal Injury Case.— Tbe instruction on the measure of damages in this personal injury suit, although not aptly worded, was not prejudicial.</p>

<p>1. Criminal Law — Jury—Manner of Selection Not Subject to Exception. — Under Section 281 of tbe Criminal Code tbe action of the trial court in ordering a jury to be summoned is not subject to exception, and so when the court ordered the sheriff to go to a certain part of the county and select jurors, his action was not subject to review by this court.</p> <p>2. Criminal Law — Evidence—Motive—Ill-will.—It is a uniform rule in criminal practice in homicide cases to permit the Commonwealth to give evidence of any pertinent facts or circumstances tending to show ill-will or bad feeling on the part of the accused toward the deceased, or a motive that may have contributed to influence the commission of the act.</p> <p>3. Criminal Law — Evidence—Remoteness.—The question of the remoteness of evidence introduced for the purpose of showing threats, or other relevant acts tending to establish motive, goes rather to the weight than to the competency of this character of evidence.</p> <p>4. Criminal Law — Evidence—Admonition of Court to Jury Respecting. — Where evidence of other offenses is competent, it is the duty of the court to admonish the jury, at the time of its introduction, of the purpose for which it is admitted; but when the evidence merely goes to show the state of feeling on the part of the accused towards the deceased, it is not required that the trial judge should give any admonition to the jury.</p> <p>6 Criminal Law — Evidence of Good Character of Deceased — When Admissible. — The general rule in homicide cases is that it is not competent to introduce evidence for the purpose of proving the good character of the deceased until his character has been assailed, and evidence of assaults made on the accused by the deceased is not such an attack on the character of the deceased as would authorize the admission of evidence of good character; but when it was competently shown that the deceased was ill-mannered or insulting towards men and women and children generally, it would be admissible to prove his good character in these respects, although the evidence might not be directed toward establishing that he was a violent, dangerous or quarrelsome man.</p> <p>6 Criminal Law — Evidence—In Rebuttal — Practice.—The correct practice is that both parties should introduce in chief all of the evidence they have tending to support their respective contentions, but it is allowable to introduce in rebuttal evidence that might have been introduced in chief,, and as a general rule the time of introducing evidence is left to the discretion of the trial judge and will not be interfered with unless it has been abused. Criminal Law — Rebuttal Evidence — Practice.—When the Commonwealth or the defense is allowed to introduce material evidence in rebuttal, whether it be for the purpose of contradiction or evidence in chief, the other side should also be allowed to introduce evidence to explain away or contradict this rebutting evidence.</p> <p>8. Criminal Law — Argument—Time Allowed for. — A reasonable time should always be allowed for argument, and what is a reasonable time must of necessity be left almost entirely to the discretion of the trial court, but in a homicide case, where there are a large number of witnesses and much conflicting evidence, an hour is not sufficient time in which to enable counsel to present his case.</p>

<p>1. Master and Servant — Safe Place to Work — Delegation of Duty.— It is the duty of the master to furnish the servant a safe place to work, and he cannot relieve himself of this duty by delegating it to others.</p> <p>2 Master and Servant — Inspection—Contributory Negligence. — It is not the duty of the servant to inspect the place where he works in the absence of a contract or special assumption of that duty, and his failure to do so is not contributory negligence.</p> <p>3. Continuance — Discretion—Evidence.—It is not an' abuse of discretion to refuse a continuance on account of an absent witness where an affidavit of what he will prove is admitted as evidence.</p>

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

<p>1. Taxation — Increase of Valuation Returned by Taxpayer — Notice to Taxpayer — Section 4053, Kentucky Statutes. — Where the assessor or board of supervisors, after a taxpayer has duly returned his assessment, make an additional assessment for the same year, the taxpayer is, under Section 4053, Kentucky Statutes, entitled to notice, not only where the items actually listed by him are increased in value by the assessor, but also where the assessment has been increased by the assessor’s adding to-the tax list returned by the taxpayer additional items of taxable property.</p> <p>2. Taxation — Invalid Assessment — Injunction.—Where an assessment returned by a taxpayer is increased without notice to the taxpayer as required by statute, and the assessment is therefore invalid, relief by way of injunction is proper.</p>

<p>1.. Injunction — Restraint of Criminal Proceedings. — While ordinarily an injunction will not lie to restrain criminal proceedings;, yet where plaintiff’s property right is involved, and it appears that there will be a multiplicity of suits, and irreparable injury will follow unless the prosecutions are enjoined, a court of equity may properly interfere.</p> <p>2. Injunction — Questions Which May Be Considered. — Where an injunction is sought, and the facts are sufficient to justify the interference of a court of equity, the court will pass on all questions that are necessarily involved.</p> <p>3 Easements — Obstruction—Section 4354, Kentucky Statutes. — The obstruction by a railroad company of an easement across its tracks by permitting cars to stand thereon for an unreasonable length of time, is not affected by Section 4354, Kentucky Statutes, imposing a fine of ten dollars upon “any person who shall put any obstructions in a passway, or shall prop open, pull down, injure, or leave open a gate erected across the same,” since the obstructions referred to in the statute are held to amount to a nuisance which may be abated by the owner of the passway, and the owner of the passway would not have the right to go upon the railroad’s right of way and remove its cars.</p> <p>4. Easements — Obstruction—Belief.—An easement over a railroad track is subject to the reasonable use by the railroad company of its right of way, but if the railroad company wilfully or negligently obstructs the passway beyond the reasonable necessities of the prudent operation of its road, relief will be afforded.</p>

<p>1. Railroads — Negligence—Presumptions.—In a suit against a railroad company to recover damages for killing a person, there is no presumption of negligence against the company, any more than there is a presumption of contributory negligence upon the part of the deceased; it is incumbent upon the plaintiff in such an action to prove negligence upon the part of the company’s servants in charge of the train, or facts from which such negligence can be reasonably inferred.</p> <p>2. Personal Injuries — Action For — What Complaining Party Must Show. — In an action to recover damages for personal injuries, the complaining party must not only show the injury, but he must also produce some evidence tending to show that the defendant was to blame; mere proof of the injury, with attending circumstances showing that the party charged with neglect may have been blameless or may have been at fault, will not be sufficient.</p> <p>S. Negligence — Submission to Jury.- — When the question is one of negligence or no negligence, it is well settled that where the evidence is equally consistent with either view — the existence or non-existence of negligence — the court should not submit the case to the jury, because- the party affirming negligence has failed to prove it.</p>

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

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

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

<p>Divorce — Cruel and Inhuman Treatment — Evidence.—Evidence hald insufficient to show treatment of a character calculated to destroy permanently the peace and happiness of the wife, and show a settled aversion on the part of the husband for her, continued not less than six months, so as to warrant a divorce.</p>

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

<p>1. Conversion — -Unlawful Conversion of Personal Property — Owner’s Remedies. — Where one illegally obtains the possession of personal property by purchase at a void sale and converts it to his own use, the owner may bring an action to set the sale aside, or to recover the specific property; or he may sue for the value of the property because of -its illegal conversion.</p> <p>2. Corporations — Sale of Corporate Property — Power of Board Directors. — Action of the board of directors of an incorporated ferry company in ordering a sale of all the corporate property, though approved by the stockholders, did not, in the absence of a resolution to that effect, operate as a dissolution of the corporation; as it might have obtained another franchise and other property in lieu of what had been sold, and continued its business.</p> <p>3. Corporations. — When Board of Directors May Act Without Approval of the Stockholders. — Although the board of directors, with the approval of the stockholders of the corporation, may have ordered the sale of the corporate property at a time and place fixed by resolution, if the board of directors, acting upon information received before the sale, became convinced that to make it at the time fixed would result in the sacrifice of the property and great loss to the stockholders, it had the right, a majority of the board acting, to postpone the sale, without awaiting action upon the part of the stockholders.</p> <p>4. Corporations — Action by Board of Directors — Called Meeting— When Participation of Majority of Board’s Members Sufficient. — • The rule that all directors are entitled to notice of special meetings, and that acts done or business transacted without such notice is invalid, like most other rules, is subject to some exceptions. Emergencies may arise which will excuse the giving of notice to all the directors of a special meeting, the emergency demanding immediate attention to save the corporate property and to save expense. Another exception to the rule is that notice may be dispensed with where all the directors are present and participate in the proceedings. The only object of notice is' that the directors have an opportunity of being present at the meeting and taking part in the proceedings. Where, in a case of emergency, a special meeting is held without notice, hut at which all the directors are present, if one of them, upon learning the object of the meeting, leaves to keep from participating therein, such action as may be concurred in by the members constituting a majority of the board, remaining at the meeting and participating therein, will be as legal and binding for all purposes as if all the directors constituting the board of directors had been notified of the time and place of the meeting and had attended same.</p>

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

<p>1. Wills — Use of Intoxicants by Testator — Mental Capacity — Undue Influence. — Proof with reference to intoxicants and the long continued use of the same by the testator, was competent as affecting his mental capacity as well as his susceptibility to undue influence.</p> <p>2. Wills — Scintilla Rule. — The scintilla rule applies to will contests as well as other cases.</p> <p>3. Wills — Undue Influence — Instruction Upon — It is the duty of the court to give an instruction on undue influence where all the circumstances taken together raise that question.</p>

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

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

<p>Mechanics’ Liens — Rights of Materialman When Material Furnished to Person Holding Under Executory Contract — Burden of Proof. — Section 2464 of the Kentucky Statutes provides that if the owner to whom material is furnished claims under an executory contract and this contract is rescinded or set aside, the mechanic’s lien shall follow the property into the hands of any person to whom it may come, but the lien shall be only to the extent that the actual value of the property has been enhanced by the improvement. Therefore when material or labor has been furnished to a person holding under an executory contract that has been rescinded or set aside, it is. essential, in a suit to enforce the lien, that there should be both pleading and proof on the part of the plaintiff of the extent to which the value of the property has been enhanced by the improvement. And if an issue is tendered •upon this point by the defendant, the burden is upon the person asserting the lien to show the extent to which the actual value of the property has been enhanced.</p>

<p>1. Municipal Corporations — Damages—Garbage.—In an action, against a city for damage to property by reason of maintaining a city dump near tbe same, the city can not escape responsibility by showing that individuals also dumped some refuse there, where it is shown that its dump boss was there during all working hours and had control of the situation.</p> <p>2. Municipal Corporations — Garbage.—Although, in the collection and distribution of garbage the city discharges a governmental function, it has no right to take or injure private property, or the use thereof, without making compensation therefor.</p> <p>3. (Municipal Corporations — Private Property for Public Use — Compensation. — Under Section 242 Constitution, cities and other corporations invested with the privilege of taking private property for public use must make compensation therefor.</p> <p>4. Municipal Corporations — Suits Against. — In an action to recover against a city it was not proper to show that it had satisfied other similar claims, but where counsel for the city asked the witness on cross-examination if he had a suit pending against the city, it was competent to show that his suit was terminated.</p> <p>5. Argument of Counsel — Bill of Exceptions. — This court will not consider an objection to improper argument of counsel where the same is not certified in the bill of exceptions.</p>

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

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

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

<p>Appeal — By County Attorney on Order of County Court — Employment of Counsel. — When an appeal is taken from an order of tbe fiscal court by tbe county attorney -on tbe order of tbe county court, tbe fiscal court bas authority to employ counsel to represent that court on appeal.</p>

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

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

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

<p>1. Eminent Domain — Value of Property Condemned — Measure of Damages — Instruction.—In a condemnation proceeding, an instruction authorizing the jury to fine, for the defendant the market value of the property and defining the market value as “that price it would bring when it was offered for sale by one who desires but is not obliged to sell it, and is bought by one who is under no necessity of buying it,” was proper.</p> <p>2. Eminent Domain — Appeal to Circuit Court — When Value of Property Determined — Evidence.—In a condemnation proceeding, where an appeal is prosecuted to the circuit court, evidence of the value of the property condemned should be confined to its value at the .time of the trial.</p> <p>,3. Eminent Domain — Obligation to Take Property After Judgment.— A judgment in a condemnation proceeding does not impose on the party seeking to condemn the absolute obligation to take the property.</p> <p>4. Eminent Domain — Improvements Erected After Commencement . of Action — Instruction.—So long as a party acts in good faith and as an ordinarily prudent business man would do under like or similar circumstances, he is not to be deprived of the value of such reasonable improvements as he may make after the commencement of a condemnation proceeding, and it was not error to refuse an offered instruction authorizing the jury to make a deduction for any improvements made after the proceeding was instituted.</p> <p>5. Eminent Domain — Evidence—Opinion of Witnesses Without Facts to Support Them — Discretion of Trial Court. — In a condemnation proceeding, where there had been no sales of similar property sufficiently near in point of time and circumstances to afford a fair basis in measuring the market value of the property condemned, it was not error to permit witnesses to give their opinions without qualifying themselves by stating facts upon which their opinions were based; the determination, of the qualifications of such witnesses rests largely in the discretion of the trial judge.</p> <p>6. Eminent Domain — Qualification of Witnesses — Value of Opinions ■ — Question for Jury. — In a condemnation proceeding where a witness possessing some knowledge of the subject gives his opinion as to the value of the property, it is proper to cross-examine him as to the extent and accuracy of his knowledge and the facts on which such knowledge is based, and the value of his opinion is then for the jury.</p> <p>7. Evidence — Value of Property — Opinion of Witnesses. — Persons may testify to the value of property, although no sales have been, made to their knowledge of that or similar property.</p> <p>8. Eminent Domain — Evidence of Value — Opinions of Witnesses— Exception to General Rule. — Evidence of value in condemnation proceedings furnishes an exception to the general rule that witnesses are to state facts and not express opinions.</p> <p>9. Eminent Domain — Value of Property Condemned — Uses—Evidence. — The market value of property may be estimated by reference to the uses for which it is suitable, having regard to-the existing business or wants of the community, or such as may be reasonably expected in the near future.</p> <p>10. Eminent Domain — Rejection of Material Evidence — Not Prejudicial — In a condemnation proceeding, the rejection of the sheets upon which defendants had scheduled their property for taxation held not prejudicial, in view 01 the fact that, though admissible, they threw but little light on the actual value of the-property assessed, and necessarily had but small weight with the jury.</p> <p>11. Eminent Domain — Damages Not Excessive — Evidence.—In a condemnation proceeding, evidence examined, and held, that a verdict of the jury fixing the value of the property at $43,000 was-not excessive.</p> <p>12. Appeal — Limitation of Review — Condemnation Proceeding — Verdict. — In a condemnation proceeding, where six witnesses for plaintiff fixed the value of the property at from $2,500 to $5,000. and nine witnesses for the defendant fixed its value at from $40,000 to $65,000, this court has no authority to disregard entirely the evidence and the finding of the jury, and fix the market value of the property at what, in the opinion of the court, would be fair and right under the circumstances.</p> <p>13. Appeal — Misconduct of Counsel — Objection Sustained by Trial Court. — A judgment will not be reversed for misconduct of counsel, where the court in each instance sustained objections to the language complained of and admonished the jury not to consider it.</p>

<p>1. Workmen’s Compensation Act — Invalidity of — Employer and Employee — Section 54 Constitution. — While it may be within the power of an employee to waive, by contract, the recovery limit which section 54 of the Constitution inhibits the Legislature from making, if such contract is freely and voluntarily made, the restrictions in this act so limit the right of recovery as to render it violative of the constitution.</p> <p>2. Constitutional Law. — The Legislature has no right to say to one of its citizens that “unless you accept the provisions of a law impairing your constitutional rights, it will take from you other rights more valuable.”</p> <p>3. Workmen’s Compensation Act — Constitutional Law. — In the light of section 54 of the Constitution the contract as provided for in the act must be treated as compulsory and void.</p> <p>4. Workmen’s Compensation Act — Violative of Section 241 of the Constitution. — The provisions of the act that take from the personal representative or estate of deceased employee, who left no one dependent surviving him, any part of the compensation due such person or estate, and directs its payment in the fund provided by the act for the benefit of others, is in violation of Section 241 of the Constitution.</p> <p>6. Workmen’s Compensation Act — Constitutional Law — Section 241 of Constitution. — It follows, therefore that such parts of the act as give to the board created by it compensation without the voluntary contract of the employee, the right to recover from the employer for the death of the employee leaving no dependents, and such other parts of the act as are coercive are unauthorized and void.</p> <p>6. Workmen’s Compensation Act. — While the Court looks with favor upon a workmen’s compensation act that would deal justly with employer and employee, one that would permit both to voluntarily take shelter under its provisions, it cannot consent that the Legislature has the power to put such an act into operation by means of compulsory contracts.</p>

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

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

<p>1. New Trial — Newly Discovered Evidence. — A new trial will not be granted on the ground of newly discovered evidence where it serves only to corroborate the evidence establishing the very facts to which proof has already been introduced.</p> <p>2. Trial — Practice.—Where a plaintiff tenders the issue and it Is accepted as tendered, the plaintiff should abide the result, although it was possible to have presented a stronger case.</p> <p>3. Negligence — Contributory Negligence — Instructions.—in an action, for personal injuries where the plaintiff’s evidence raised the question of contributory negligence, it was not error for the court to instruct upon that point.</p>

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

<p>Master and Servant.- — Where a servant negligently operates a motor in a mine with the trolley in front and is killed by reason of the trolley jumping from the wire and breaking against the Toof of the mine, no recovery may be had for his death.</p>

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

<p>Prisons — 'Parole or Discharge of Prisoner. — Where a prisoner was convicted in 1906 of the crime of murder and his punishment fixed at confinement for life, he is not entitled to a parole as a matter of right after serving five years, having gained no rights under the Parole Act of 1910 of that nature.</p>

<p>Prisons — Parole of Prisoners. — One convicted of forgery in 1912 and sentenced under the Indeterminate Sentence Law of 1910, must serve the minimum term of imprisonment fixéíl by law for that crime, before eligible to parole. Kentucky Statutes 3801 does not affect him, or operate to give him the benefit of the .commutation for good behavior provided for tnerein.</p>

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

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

<p>1. Sales — Of Machinery — Guarantee of Satisfaction — Rights of Purchaser. — Where machinery is sold under a guarantee that it will operate to the satisfaction of the purchaser, he has the right to determine for himself whether it is giving satisfaction, and if it does not give satisfaction, he has the right within a reasonable time to return it.</p> <p>2. Sales — Of Machinery — Guarantee of Satisfaction — Reasonable Time to Return. — If machinery is bought under a guarantee that it will work in a manner satisfactory to the purchaser, he has a reasonable time in which to discover whether it will work to his satisfaction or not and a reasonable time after making the discovery that it is not satisfactory in which to return it, but if he fails to return it within a reasonable time he must pay for it. What is a reasonable time depends on the facts and circumstances of each particular case and is a question for the jury, unless the evidence plainly shows a state of facts that authorize a directed verdict.</p> <p>3. Sales — Of Machinery — Guarantee of Satisfaction — Time in Which Purchaser May Return — How Affected by Promise of Seller to Repair. — Where machinery is bought under a contract that it will give satisfaction to the purchaser, and it fails to do this, the fact that the seller makes repairs every time complaint is made, will not extend the reasonable time in which a return must be made, unless the seller requests the purchaser to keep the machine under a promise that he will make it operate in a satisfactory manner, or unless the seller, by his course of dealing, has induced the purchaser to believe that he may keep the machine without losing his right to return it within a reasonable time.</p>

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

<p>1. Master and Servant — Employers’ Liability Act. — The Federal Employers’ Liability Act literally construed, imposes liability for the negligent acts of the employer’s officers, agents and employees; but in the absence of Federal Court rulings to the contrary, it may not fairly be said that by this Act Congress undertook to abrogate the fundamental principles of common law-in respect of che vicarious responsibility of the master for the negligent acts of his servants. At the time of the enactment of the statute, it was the well-established doctrine of the common law that the master is responsible for the negligent acts of his servants while acting as such, although unauthorized or even forbidden by the master, provided the same were committed in the course of the servants’ employment; and the act in question should not be construed, therefore, to impose legal liability upon the master except for negligent acts of his servants committed in the course of their employment.</p> <p>2. Master and Servant — Master’s Liability for Servant’s Acts — Course of Employment. — A work-train standing on a sidetrack awaiting the passing of another train had upon it section foremen and their crews who had been ordered aboard it for the purpose of unloading track ballast. One of the section foremen under the mistaken belief that the switch connecting this side track and the main track on which the other train was approaching had been left open, shouted to the section men to jump off, that the trains, were going to collide. He, himself, jumped off and ran across the main track followed by another section foreman and some of the men, one of whom was thereby killed by the locomotive of the passing train. Held, that such act was performed within the course of his employment, imposing liability upon the master.</p>

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

<p>1. Constitutional Law — Section 51, Constitution — Amendatory Act.— An Act entitled “An Act to amend charters of cities of the third class,” which proceeds in effect to amend Section 3459, Kentucky Statutes, by adding an additional section, without setting forth, or re-publishing the section proposed to be amended, is violative of Section 51 of the Constitution, which provides that no law shall be amended by reference to its title only, but so much. thereof as is amended shall be re-enacted at length.</p> <p>2. Municipal Corporations — Cities of the Third Class — Street Improvements — Ordinance—Validity.—A street improvement ordinance in a city of the third class, enacted pursuant to an unconstitutional law providing for street improvements on the ten year bond plan, is invalid where there is no other statute authorizing such improvements on that plan.</p>

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

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

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

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

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

<p>1. Competition — What Is Unfair Competition. — Unfair competition is the passing off or attempting to pass off upon the public the goods or business of one man as that of the goods or business of another. Any conduct which tends to produce this effect is unfair competition, and the means employed are wholly immaterial.</p> <p>2. Competition — What Is Unfair Competition. — Where for a long term of years a retail business is conducted at the same place in a city, under the same firm or corporate name, it is unfair competition for other persons to organize a corporation and adopt a part of the corporate name of the older corporation and operate a similar business under such corporate name two blocks from the older business.</p> <p>3. Competition — What Is Unfair Competition. — Even though the incorporators of a new corporation adopt the name used in good faith and without purpose to injure the older concern or to confuse or mislead the public, it is still unfair competition if it tends to produce such result. .</p> <p>4. Landlord and Tenant — Lease—Contracts.—It would be inequitable to cancel a lease obtained by the newer corporation upon the place where it operates its business because, as alleged by the older corporation, the lessor to the newer corporation had violated his contract with it.</p>

<p>1. New Trial- — Malicious Prosecution — When Granting of Not Error. —Where it is complained, on appeal, that the Circuit Court twice granted the defendant, in an action for malicious prosecution, a new trial; that following the third trial of the case and the return of a verdict for the defendant, plaintiff was refused a new trial, and her motion to substitute the judgment entered on the verdict returned fob her on the first or second trial for that rendered for defendant on the third trial, was overruled, the Court of Appeals will review the rulings and judgment of the Circuit Court on the first and second as the third trial. But where it is shown by the record, as in this case, that the granting of each of the new trials was authorized because of errors committed by the Circuit Court in instructing the jury, and that the rulings and instructions of the Circuit Court on the thira and last trial, were free from substantial error, the judgment rendered on the last trial will be affirmed.</p> <p>2. Malicious Prosecution — Probable Cause — Instruction Defining— What it Should Contain. — The instruction as to probable cause, given both on the first and second trial, was improperly confined to a definition of the term in the abstract. In an action for malicious prosecution what facts constitute probable cause is a question of law for the court, but the court should tell the jury what facts constitute probable cause, and let them determine, in such case, whether these facts are proved. This was done on the third and last trial.</p> <p>3. Malicious Prosecution — Malice—I-Iow Defined. — The meaning of the word “malice” or “maliciously” depends largely upon the subject to which it is applied. In the law of malicious prosecution it requires the mental condition or purpose. It is not a mere' fiction of law, but it must be malice in fact. Therefore, the malice in a malicious prosecution is not, while it may be, ill will to the individual; but it is any evil or unlawful purpose, as distinguished from that of-promoting the justice of the law. The instruction. defining malice on each of the three trials did not correctly state the law, but being more favorable to the plaintiff than she was entitled to have it given, and prejudicial to the defendant alone, the error of the court in giving it on the last trial is not ground for a reversal.</p>

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

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

<p>Contracts — Rescission—Evidence.—In an equitable action seeking a rescission of a contract for the sale of land on the ground of false and fraudulent misrepresentations as to value and productiveness, the evidence is examined and it is found that even il the.representations as alleged were made, they were substantially true.'</p>

<p>1. Insurance — Verdict—'Intendment After Verdict — Pleading.—Although the petition in an action on an insurance policy was defective because of its failure to allege that the goods destroyed had any value and what their value was, yet where the issue as to value was fully contested by the parties and passed upon by the commissioner, and considered by the court on exceptions, the doctrine of intendment after the verdict will be applied.</p> <p>2. Insurance — Proofs of Loss — Avoidance of Policy. — False statements made under oath in proofs of loss must be intentionally made -to avoid the policy; innocent mistakes or exaggerated estimates of value will not have that effect.</p> <p>8. Insurance. — Concurrent insurance is such as insures, to- any extent, the same interest insured hy the original policy, against the same casualty, and covering the same or part of the same time, on such terms that, in event of loss, the insurers will hear the same proportionally, according to the terms of their policies. It is not essential that the latter policy shall insure the property to the same extent, and only to the same extent, as does the original policy. The fact that the first policy had a three-quarter value clause in it and the second policy did not, will not make the latter policy non-concurrent.</p> <p>4. Insurance — Books—Evidence.—Where in a fire the hook-of the mercantile establishment showing its cash sales was destroyed, in ascertaining the amount of such sales in order to find how much property was destroyed, the bank deposits of the concern, together with the unpaid accounts and notes, afford the best basis of reaching the amount of sales.</p> <p>5. Insurance — Issue as to Extent of Loss. — Upon the issue as to how much merchandise was destroyed, the commissioner, after ascertaining the amount of sales, wrongfully deducted therefrom the amount of the expenses of running the business; such expenses to the extent they were paid out of bank deposits should neither be added to nor taken from the amount of sales, but to the extent that they were paid out of money not deposited in bank, or out of merchandise, should have been added to rather than subtracted from the amount of sales.</p> <p>6. Commissioners — Allowance—Pees.—Section 1740 of the Kentucky Statutes definitely and arbitrarily fixes the amount which a commissioner may be allowed for each day he is actually engaged in a case at $3.00; and Section 396 provides that even that allowance shall not be made until the commissioner had filed in court a written statement under oath showing the number of days he has so acted. These requirements are mandatory and must be followed.</p>

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

<p>1. Contracts — Writings—Construction.—In construing a writing the court will read it in the light of the circumstances under which, it was executed and the purpose of its execution.</p> <p>2. Contracts — Writings—Construction.—A writing authorizing A to cut timber at a point named in the contract will not be construed as a sale of timber not cut by him when the writing was only intended to authorize a cutting of some timber to force an adverse claimant to bring therefor a suit to be defended by the owner of the land.</p>

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

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

<p>Appeal — Dismissal.—If tbe appeal bond in an election contest is not given in 30 days after tbe judgment in tbe circuit court, tbe court cannot allow it to be executed thereafter and the appeal must be dismissed.</p>

<p>1. Railroads — Action for Damages for Death — Signals—Negligence— Question for Jury. — Where, in a suit to recover damages from a railroad company for negligently killing a person walking upon its tracks, there was evidence that the train was running at an unreasonable speed, upon a dark, drizzly night, over a public street that was constantly used by pedestrians, and that the engineer failed to sound his whistle after he had discovered the presence of the deceased upon the track, the determination of the question of the company’s negligence, and of the decedent’s contributory negligence, was for the jury; and the defendant’s motion for a peremptory instruction was properly overruled.</p> <p>2. Instructions — Submission of' Question to Jury by. — It is a well-settled rule that both the plaintiff and the defendant have the right to have their respective theories of the case properly presented to the j’vy; and where a party offers m instruction which is not technically correct, it is the duty of the court to prepare and give a proper instruction on that point.</p> <p>3. Instructions — Measure of Damages. — A clause in an instruction giving the measure of damages for the negligent killing of the plaintiff, which authorized the jury to take into consideration his age and the probable duration of his life, was erroneous, because it specifically called the jury’s attention to certain facts; it was not sufficiently prejudicial of itself, however, to justify a reversal.</p> <p>4. Streets — Dedication.—The dedication of a public street cannot be shown by the opinion of an individual that the citizens of the town had a right to use the street.</p>

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

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

<p>1. Gifts — Gift Inter Vivos. — To constitute a valid gift inter vivos, the purpose of the donor to make the gift must be clearly and satisfactorily established, and the gift must be complete by actual, constructive, or symbolical delivery without power of revocation.</p> <p>2. Gifts — Inter Vivos. — To constitute a gift inter vivos, the property must be delivered absolutely, and the gift must go into immediate • effect. Where future control over the property remains in the donor until his death, there is no valid gift inter vivos.</p> <p>3. Trusts — Creation of. — When a settlor is possessed of the legal title to the subject-matter of the settlement he may create a valid trust thereof, either by a declaration that he holds the property in trust, or by a transfer of the legal title to the property to a third party upon certain trusts. If he makes himself the trustee, no . transfer of the subject-matter is necessary; but if he make a third party trustee, he must transfer to him the subject of the trust in such a mode as will be effectual to pass the legal title .</p> <p>4. Trusts — Creation of. — A mere intention to convey property in trust is not sufficient to create a trust, if the proper steps are not taken for the purpose of making a valid transfer of the legal title to the intended trustee.</p> <p>5. Trusts — Disposition of Note in Trust — When Not Complete.— Where the owner of a note left it in the hands of his agent, and frequently declared his intention of giving the note to a ward of the agent, but never carried out the intention by endorsing dr delivering the note so as to pass the legal title to the guardian, there was no valid disposition of the note in trust.</p>

<p>■Carriers — Validity of Contract That Shipper Must Present Written Claim for Damages Within Prescribed Time — Waiver.—A contract of carriage providing that a shipper who has a claim for damages for injuries sustained by the property in shipment, must present the same in writing to designated agents of the company within ten days after the delivery of the property at destination, is a valid and reasonable condition, but the written notice may be waived by the act, conduct or assurances of the agent to whom the written notice could be delivered.</p>

<p>1. Damages — Surface Water — Overflow of. — In an action to recover for overflow of property, where all the evidence shows that it was an unprecedented and extraordinary rain and there is no proof to show that ordinary prudence could have provided against it, there is no liability.</p> <p>2. Damages — Surface Water — Overflow of. — If the flood crest below and above the obstruction is higher than the level of the property damaged, and this height is reached by the water independent of the obstruction, the flooding of the property is inevitable, and there is no liability.</p>

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

<p>1. Telegraphs and Telephones — Submission to Jury. — Upon an issue whether it was the duty of a telephone company to maintain a telephone line at the point where an accident happened, the evidence is examined and held sufficient to justify the submission of that question to the jury.</p> <p>2. Telegraphs and Telephones — Evidence.—Where in a personal injury action the real issue' was not whether the defendant had been guilty of negligence, but whether the duty was imposed upon it of maintaining a telephone line at the point of the accident, evidence is permissible that after the accident employes of the company had worked on and repaired the line at that place.</p> <p>8. Verdict. — Evidence of injuries examined and held that a verdict for $5,000 is not excessive.</p> <p>4. Continuance — Evidence.—A defendant is not entitled to a continuance as a matter of right because of its failure to get the evidence, prior to the trial, of the plaintiff as if under cross-examination, where on the trial there was nothing in the evidence of the plaintiff which took the defendant by surprise or that it was not in every way ready to meet.</p>

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

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

<p>1. Railroads — Rule Prohibiting Employes Riding on Pilot — Use of Pilot as Temporary Step. — The use of a pilot as a temporary step in mounting an engine is not a violation of a rule prohibiting employes from riding on the pilot of an engine.</p> <p>2. Railroads — Rules—Violation.—A rear brakeman who is left by his own train, and is required by the company’s rules to catch the next train and attempt to overtake his train, does not violate a rule requiring the rear brakeman to see that the train approaching in the rear of his train is stopped, by attempting to mount the approaching train while in motion.</p> <p>3. Railroads — Rules—Instruction.—Where plaintiff, an employe, in attempting to mount an engine, slipped from a step attached to the pilot beam and was injured, an. instruction telling the jury to find for defendant if they believed' plaintiff used the step in violation of a rule prohibiting employes from riding on the pilot was properly refused, since such rule did not apply to the use of the pilot as a temporary step in mounting the engine.</p> <p>4. Instructions — Refusal—Question Covered by Other Instruction.— Held not error to refuse an offered instruction on a phase Of the case covered by another instruction.</p> <p>5. Master and Servant — Injury to Servant — Railroads—Assumed Risk — Instruction.—Where plaintiff, an employe, in attempting to mount an engine, slipped from a step attached to the nilot beam and was injured, and there was evidence that the step was defective, and no evidence that plaintiff knew of this defective condition or that it was plainly observable, held that he did not as a matter of law know and appreciate the danger and therefore assume the risk of injury.</p> <p>6. Verdict — Not Excessive. — A verdict of $10,000 held not excessive where plaintiff, a brakeman 28. years of age, fell under a train and his leg was so badly injured as to require amputation eight inches from his body.</p> <p>7. Master and Servant — Injury to Servant — Contributory Negligence —Federal Employers’ Liability Act — Damages.—In an action for damages for personal injuries under the Federal Employers’ Liability Act, even if it be admitted that plaintiff was guilty of contributory negligence, it was for the jury to compare' his negligence with that of the defendant, and after ascertaining the full amount of the damages, to award plaintiff such proportional part; thereof as the negligence attributable to the defendant bore to the entire negligence attributable to both.</p> <p>8. Evidence — Railroads—Customary Violation of Rule — Where plaintiff was injured by slipping from a step on the pilot beam in attempting to mount a moving engine, it was competent to prove a customary violation of the rule for the purpose of counteracting the effect of defendant’s evidence that the step was designed for use by shopmen, only, and was not intended for use by trainmen.</p>

<p>■1. Railroads — Yards—Car© Reguired in Movement of Trains in. — In railroad yards where a number of employes are engaged in various kinds of labor, it is the duty of the railroad company, in the movement of its engines and cars, to anticipate the presence of these employes on the tracks and to move its cars and engines at a reasonable rate of speed, keep a lookout, and give warning of their approach. And in the' movement of cuts ■ of cars there should be on the front a person ‘in a suitable position to warn employes of their presence.</p> <p>• 2. Railroads — Yards—Duty to Employes in Movement of Trains.— In yards where the presence of employes on tracks must be anticipated, the duty of giving warning of the movement of trains, keeping a lookout, and running them at a reasonable rate of speed is for the protection of all employes in or about the yards whether they be engaged in work or standing or moving about, except that employes who are themselves charged with the duty of looking out for the movement of engines and cars are not entitled to this protection.</p> <p>3. Railroads — Yards—-Duty in Movement of Cars — Negligence.— Where an employe went in front of the north end of a standing car for the purpose of urinating, with his face toward the car, and a cut of cars was shunted in on the north end of the track on which he was standing, without any person on the forward end of the front car to give warning of its presence or to control its movements, the company was liable in damages for the death of the employe thus standing who was killed when the cut of cars came in collision with the car in front of which he was standing.</p> <p>4. Railroads — rYards—Duty in Movement of Cars — When Company Not Negligent. — Where an employe, for the purpose ef urinating, goes between standing box cars, where he would be concealed from view of a brakeman in charge of a cut of cars moving on the same track, the company is not guilty of negligence if the employe is killed by the collision of the moving car» against the cars between which he was standing.</p> <p>5.. Railroads — Yards—Duty of Foreman to Protect Employes — Custom — Usage.—Where it is the custom or usage in a yard for employes to go between cars for the purpose of urinating, or they are so directed to do by their foreman, it is the duty of the foreman, if he knows that an employe is standing between the cars for the purpose indicated, and knows or by the exercise of ordinary care should know that a moving cut of cars is about to come in collision with the cars between which the employe is standing, to give the employe warning of the danger, and if he fails, the company will be liable.</p> <p>6. Railroads — Employers’ Liability Act — Instructions—Practice.—In administering the Employers’ Liability Act in our courts the practice and procedure followed in the trial of common law actions generally should be observed in the trial of cases arising under this act, except in so.far as the act itself modifies or changes them.</p> <p>7. ¡Railroads — Employers’ Liability Act — Weight of Evidence — Instructions. — if the evidence in a case under the Employers’ Liability Act would be sufficient to take the case to the jury and support a verdict if the suit had been brought under the State law, it would be sufficient to take the case to the jury and support the verdict if it was brought under the Federal law.</p> <p>8. Evidence — Scintilla Rule — Peremptory Instruction. — The scintilla rule as applied in our practice does not mean that the case should be summitted to the jury when there is merely a “spark” or a “glimmer” of evidence, but means that when there is some evidence to support the plaintiff’s case the court will not take the case from the jury, nor will the court, upon all the evidence, take the case from the jury merely because the evidence on one side may be stronger than the evidence on the other, but will, when there is conflict in the evidence, leave the disputed questions of fact to the jury.</p> <p>9. Instructions — Peremptory—When Should Be Given. — If on the trial of a case it appears that, admitting the plaintiff’s testimony and every fair inference that is reasonably deducible from it to be true, he has still failed to make out his case, the court should take the case from the jury.</p> <p>10. Evidence — Speed of Trains — Condition of Rails. — It is competent to permit qualified witnesses to testify as to the speed at which cars were running and to describe the condition of the rails and tracks.</p> <p>11. Evidence — Rules—Proof of — Practice in Obtaining. — Written rules, established bly a railroad company for the conduct of its business, are the best evidence, and when a party to a suit desires to introduce as evidence these rules, or to prove their contents, he should give notice to the company that he wishes a copy of the rules to use on the trial, and if the company fails to produce the rules, then their contents may be shown by qualified persons.</p>

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

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