Volume 163 — Kentucky Reports

<p>Estoppel — Equitable Estoppel — Denying Validity of Partition Accepted and Acquiesced in — Denying That Mortgage Conveys What it Purports to Convey. — Where part of the tenants in common of a certain tract of land, procured a partition thereof by act of the parties, and the widow and three children conveyed to the other two children a certain parcel of the common estate, and the tw.o who procured the deed to be executed, accepted it, took possession of that part of the farm so laid off to them, mortgaged and sold it, they will not be heard in an action instituted some sixteen years after the deed was made, to say that it was invalid because unauthorized under the will of their father from whom the farm was derived, or because one of the grantors in the deed was incompetent; and they are likewise estopped from asserting that one to whom they mortgaged the part laid off did not take by the mortgage and subsequent decretal sale, such interest as the mortgage purported to convey and include.</p>

<p>1. Land — Suit to Set Aside Sale of. — In a suit to set aside a sale of land under execution because more land was sold than was necessary to pay the debt, the fact that the sheriff offered publicly to sell the land to any one who would take a. less quantity and pay the debt and received no bid, was sufficient proof that it was necessary to sell all of it.</p> <p>2. Land — Sale of Under Execution. — When no one will take a less quantity of land and pay the debt, then the debtor should accept the excess which the land brought on sale as a whole rather than have the sale declared void.</p> <p>3. Land — Sale of Under Execution. — It was sufficient compliance with the Statute to advertise a sale of 4 acres to pay the debt. The possible sale of a -less quantity is such a matter of law as to put all parties on notice that it will be offered alternatively.</p>

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

<p>1. Insurance — Indemnity Insurance Policy — Character of Indemnity ■ — Action on — When and By Whom May Be Instituted. — A policy affording indemnity against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered by any person or persons, resulting by reason of the use, ownership or maintenance of the assured’s automobile; and which provides: “No action shall be brought against the company under or by reason of this policy unless it shall be brought by the assured for a loss * * * that the assured has actually sustained by the assured’s payment in money of a final judgment rendered after a trial in a suit against the assured « * is a policy of indemnity against loss actually sustained and paid in money by the assured, and only entitles the assured to bring an action upon the policy against the insurer after a judgment shall have been recovered against the assured by ona who has sustained an injury from the assured’s automobile, and after such judgment shall have been paid in money by the assured.</p> <p>2. Insurance — Right of Insurer to Defend Action Brought Against Assured by Person Injured — Effect of Defense by Insurer — Judgment Against Assured Does Not Conclude or Estop Insurer.— Where the insurer, by the terms of the policy reserves the privilege of defending or settling claims for damages covered by the policy, and the assured undertook therein to furnish all needful assistance in making such defense, and that he would not voluntarily assume any liability to the person injured, interfere in any negotiations or legal proceedings that might be conducted by the insurer on account of any claim for such damages, made by the person injured, nor settle such claim at his (assured’s) own cost without the written consent of the insurer, the fact that the insurer made defense for the assured in an action brought against the latter for damages by the person injured, did not obligate it (the insurer) to make the defense successful or make it liable upon the judgment if the defense should be Unsuccessful, as other provisions of the policy prevent the judgment from having such effect and expressly declare that the only liability it imposes upon the insurer is liability for loss actually sustained and paid in money by the assured, after a final judgment recovered' against the latter by the person injured.</p> <p>3. Contracts — Privity of Contract — Doctrine of — When not Applicable. —Whatever obligation arises out of a contract is due to the person to whom the obligation exists or is made; therefore, an action for the breach of a contract can, as a rule, be brought only by one who is a party to the contract. An exception is allowed in the case of the third party, for whose benefit a contract is made. In such case he may be allowed to bring an action in his own name, but it must be made to appear that when the contract was made some obligation or duty was owing from the promisee in the contract to the party to be benefited, and not merely that the performance of the contract might be made to benefit him. But the doctrine of privity of contract cannot be invoked in an action brought on an indemnity policy like that involved in this case, brought by one not a party thereto, to enforce satisfaction of a judgment for damages he has recovered, against the assured’s administrator for injuries inflicted by the assured’s automobile, as the policy was not written for his protection or even remotely for his benefit, its sole object being to indemnify the assured against a loss sustained and actually paid by him. Insurance under such a policy is a matter wholly between the insurance company and the assured, in which the third person, the party injured, has no legal or equitable interest. This is necessarily so where, as here, the doctrine of privity of contract is excluded by the terms of the policy, which makes it a contract exclusively for the benefit of the assured, and confines to him the right of action against the insurance company, which ‘even he cannot bring until he sustains a loss by the payment in money of a liability.</p> <p>4. Contracts — Cannot Be Made for Parties by a Court of Equity — • Enforced According to Its Terms. — A court of equity has no right to make a contract to suit one of the parties. It must take the contract as it finds it and determine the rights of the parties from it as they, themselves, make or leave it.</p> <p>5. Insurance — Attachment—Will Not Lie in the Absence of a Cause of Action. — Where, as in this case, the policy of insurance imposes no liability upon the insurer in the absence of a showing of loss actually sustained and paid in money by the assured or his administrator in satisfaction of the judgment obtained against the administrator for damages sustained to a third person, there is no indebtedness owing by the insurer and nothing in its hands going to the estate of the assured that can be subjected by garnishment to the satisfaction of the judgment in favor of such, injured person.</p>

<p>Insurance — Contract of Insurance Complained of as Champertous —Not Subject to Attack by Stranger. — The contract here involved, •complained of as being in part champertous, is not in fact champertous. If, however, it could be so regarded, its validity could not be attacked by a stranger to the contract, whose rights are in no way affected by it. Other questions involved in this case are decided in Fidelity & Casualty Co. v. Martin, 163 Ky., 12, and fully set forth in the syllabus of the opinion.</p>

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

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

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

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

<p>1. Master and Servant — Empolyers’ Liability Act — Amendment of Petition. — When the cause of action arises under the Federal Statute but suit is brought under the State law, or by some person not authorized to maintain an action under the Federal Statute, defects in the original petition may be cured by an amendment that does not set up a new and distinct cause of action, filed after the expiration of two years from the accrual of the cause of action, as the amendment will relate back to the filing of the original petition.</p> <p>2. Master and Servant — Employers’ Liability Act — Contributory Negligence of Employe — Effect of. — Under the Federal act, if the plaintiff’s negligence contributes with the defendant’s negligence to the , production of the injury, this does not defeat his cause of action but only lessens the amount of damage he may have. ■ It is only when plaintiff’s act is the sole cause of the injury and the defendant’s act is no part of the cause that the defendant is free from liability under the act. No degree of negligence on the part of the plaintiff, however gross or proximate, can, as a matter of law, bar recovery if there was also concurring negligence on the part of the defendant.</p> <p>3. Damages — Employers’ Liability Act — Instructions—Measure of Damages. — Where the evidence shows that both the plaintiff and the defendant were guilty of concurring acts of negligence that produced the injury complained of, the court, on the subject of the plaintiff’s negligence diminishing his amount of recovery, should tell the jury that if they believed from the evidence that the injuries received by the plaintiff were caused by the negligence of the defendant but were contributed to by the negligence of the plaintiff, then they will diminish the damages, if any awarded the plaintiff, in proportion to the amount of negligence attributable to the plaintiff, so that the plaintiff will not recover full damages but only a proportional part bearing the same relation to the full amount as the negligence attributable to the defendant bears to the entire negligence attributable to both.</p>

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

<p>Limitation of Actions — Computation of Period — When Cause of Action Accrues to Enforce Liability Created by Section 4130, Kentucky Statutes. — Section 4130 Kentucky Statutes provides that the county, State and taxing district shall have a lien on the real estate owned by a sheriff or thereafter acquired by him to secure the funds coming into his hands as such sheriff; the right to enforce this liability accrues when the sheriff’s settlement is approved and recorded in the office of the clerk of the county court, and it, like an action to surcharge such settlement, is barred after five years from that date.</p>

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

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

<p>1. Accounts — Action on — Plea of Payment. — In an action to recover the balance of a merchandise account where the defendant admits purchase, and claims payment, the plea of payment is not good to any extent unless he alleges the extent of payment.</p> <p>2. Payment — Burden of Proof — Pleading.—Where payment is properly plead, the burden of proof is on defendant to establish it, and the court erred in his failure to find for plaintiff where defendant’s proof did not show payment.</p> <p>3. • Accounts — Action on — Partial Payment. — Where plaintiff’s salesman agreed to allow a credit of $24.50, the defendant was entitled to a credit for that sum under the facts proven.</p>

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

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

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

<p>1.- Principal and Agent. — Knowledge of tbe acts of an agent, within the scope of his authority, are imputed to his principal.</p> <p>2. Principal and Agent — Ratification.—If a principal ratifies an un-authorized act of an agent, it is an adoption of his agency, and the principal is bound by the acts of the agent, if at the time of the ratification the principal was acquainted with the facts.</p> <p>3. Principal and Agent — Authority of Agent to Bind Principal. — A principal is bohnd by the acts of an agent as between him and a third party, where the transaction is within the scope of the agent’s apparent authority, though not authorized in expressed terms.</p> <p>4. Principal and Agent. — An agent, who has authority to purchase for cash, does not bind the principal, when he purchases upon' credit.</p> <p>5. Principal and Agent. — If an agent, not authorized to purchase upon credit, does so, and the principal receives the property and holds it, he must pay for it.</p> <p>6. Principal and Agent. — If a principal ratifies the acts of one, who without authority professes to act for him, he must adopt all of the acts throughout.</p> <p>7. Principal and Agent — When Corporation Not Chargeable With Notice. — As a rule a corporation is not chargeable with notice of facts, because of knowledge on the part of an officer or agent, where the latter is dealing with the corporation in his own interest, or where for any reason, his interest in the matter is adverse to that of the corporation, so that communication of the knowledge by him can not be presumed.</p> <p>8. Principal and Agent — When Knowledge of Agent Imputed to Principal. — Where an agent of a corporation is ostensibly acting for his principal and within the apparent scope of his authority as agent, in dealing with an innocent third party, but is really acting for himself, and with the design of cheating the third party or the principal, the law will impute the knowledge of the agent to the corporation.</p> <p>9. Principal and Agent — Where Obligation of Agent Accepted Principal Not Liable.- — As a general rule -where a party dealing with an agent, and with knowledge who the principal is, accepts the personal obligation of the agent, the principal is not liable for the debt, but this rule does not apply where the innocent third party is induced by the fraud of the agent to accept such obligation.</p>

<p>1. Trial — Instructions—When Duty of Court to Give. — In a civil case, it is not the duty of the court to give instructions to the jury, except the parties offer them in writing, but if the court does undertake to give an instruction upon any point of the case, it is required to give a correct instruction.</p> <p>2. Trial — Instructions—When Duty of Court to Give. — If a party to a civil suit offers an incorrect or defective instruction, it is the duty of the court to reject it, and to give a correct instruction upon that point of the case.</p> <p>3. New Trial. — A motion for a new trial, based upon a claim of newly discovered evidence, must be supported by affidavits showing its truth.</p> <p>4. New Trial — Newly Discovered Evidence — Motion Must Be Supported by Affidavits. — A motion for a new trial, on account of newly discovered evidence, must not only be supported by the affidavit of the proposed witness, stating that he had not communicated the facts to the party before the trial, but by the party’s affidavit showing the facts were unknown to him until after the trial.</p>

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

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

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

<p>1. Libel and Slander — Words Actionable Per Se. — Spoken words are actionable per se only wben they clearly and unequivocally import that the person spoken of is guilty of some felony or other crime of such turpitude as to render him liable upon indictment to some infamous punishment.</p> <p>2. Libel and Slander — Actionable Words When Spoken of Employment, Profession or Trade. — Words spoken of a person in respect to his employment, profession or trade, to be actionable, must be spoken of some business employment, profession or trade in which the complaining party is engaged and in the conduct of which he has sustained some injury on account of the slanderous words.</p> <p>3. Libel and Slander — Words Affecting Office — When Actionable— Juror. — The office in respect to which an injury may be sustained by slanderous words means some public position with honors, emoluments or profits, the enjoyment of which may be affected by the words. A juror does not hold such an office as this. He holds no office or employment that could be affected in a pecuniary way by slanderous words.</p> <p>4. Libel and Slander — Difference Between Libel and Slander.— Many words that would be sufficient to furnish the basis of an action for libel would not sustain an action for slander, as any written or printed words are libelous that tend to disgrace the person about whom'they are written or to render him odious, ridiculous or contemptible.</p> <p>5. Libel and Slander — Juror.—It was not actionable to say of a juror that he returned a verdict which he knew to be wrong and that was a travesty on justice and a shame and-disgrace to the community, as they did not impute to the juror the commission of any offense for which he might be indicted and punished.</p> <p>6. Jury — Exemption from Punishment. — A juror cannot be subjected to punishment for any decision he may render, and the motives that influence him cannot be made the subject of a criminal investigation unless, as provided in Section 2256 of the Kentucky Statutes, he takes, or agrees to take, a bribe to give, or refrain from giving, a verdict, or is influenced by corrupt favoritism or ■partiality.</p> <p>7. Jury — Action for Slander by. — If words are spoken generally of a jury, or applied to a jury as a whole, that impute to the jury the commission of some crime involving moral turpitude or a violation „of the Statute for which the individual members might be indicted and punished, an action will lie by any member of the jury, although no one of them was designated by name in the spoken words.</p> <p>8. Libel and Slander — Privilege—Attorney.—The privilege that protects an attorney extends only to speeches made by him that are pertinent to the case in which he is engaged when the remarks are made. If he goes entirely out of the record to indulge in slanderous expressions either against a party, witness or third person, which have no relation to the cause or subject-matter of the inquiry, he may be sued in slander.</p>

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

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

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

<p>1. Insurance — The Contract — Reformation of Insurance Policy.— Policies of insurance may be reformed when grounds therefor have been plainly made out.</p> <p>2. Insurance — Estoppel—Waiver—Knowledge of Agents. — The knowledge of an insurance agent acting within the apparent scope of his authority is imputed to the insurer unless the insured was aware of such agent’s limited powers.</p> <p>3. Reformation of Instruments — Action—Relief.—A policy of insurance may be reformed in equity; and having acquired jurisdiction for that purpose, a court of equity will retain it in order that full and proper relief may be granted, and will enforce the policy as reformed by a decree for tbe payment of the loss where such decree is proper.</p>

<p>1. Intoxicating Liquors — Search For and Seizure of Liquors — Confiscation — Contraband.—Under Chapter 78, Acts of 1914, any judge or justice of the peace may, when affidavits of three or more reputable persons are filed with him, by his warrant, cause any house in local option territory to be searched for the detection of liquors kept there for purpose of sale, and arrest the person in charge of the house.</p> <p>2. Intoxicating Liquors — Search and Seizure — Warrant—Affidavit for. — The absence of such affidavits cannot serve as a defense to the prosecution, and no steps attacking the warrant having been taken in the courts below, and no reference made to it in the motion for a new trial, it is too late to raise the question in this court.</p> <p>3. Intoxicating Liquors — Act of 1914 — United States License. — So far as distillers are concerned, the Act of 1914 repeals so much of Section -2557b, which makes the possession of United States license prima facie evidence of guilt.</p> <p>4. Intoxicating Liquors — Local Option Law — Sections 2558, 2558a, Kentucky Statutes. — Sections 2558 and 2558a, exclude distillers from the provisions of the local option law as to sales of whis- • key of their own manufacture by wholesale, but a distiller is not protected by that exception where the whiskey was kept for sale and the sales made at his residence or in quantities of less than five gallons.</p> <p>5. Intoxicating liquors — Local Option — Violation of Law. — Where an agreed statement of facts showed that appellant, a distiller, had 13 gallons of whiskey at his residence in local option territory for the purpose of putting it up into packages containing less than 5 gallons each, and had received mail orders with money enclosed in payment for the same, and had already put up four packages and marked and labeled the same in the name of the purchaser, and intended to deliver the same to a common carrier for shipment to parties in Tennessee, he is guilty of having whiskey in his possession for purposes of sale in local option territory, notwithstanding the fact that the same was not to be consumed by parties in Kentucky.</p> <p>6. Intoxicating Liquors — 2569a Kentucky Statutes — Repeal of. — The Act of 1914 repeals Section 2569a of the Kentucky Statutes to the extent that a common carrier is now permitted to receive and transport at and between points in Kentucky liquors subject . to the restrictions imposed upon them by the Act of 1914.</p>

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

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

<p>1. Land — Action Quia Timet — What Petition Must Allege — Defect is Cured By Answer. — In an action quia timet the petition must describe the land, allege both the plaintiff’s title to and possession thereof, and the nature of the claim asserted to the land, or such part thereof as may be involved, by the defendant; also that it is hostile to the plaintiff’s title and possession and casts a cloud thereon. Where there is an essential compliance with the above requirements, except in the matter of specifically alleging what part of the land is claimed by the defendant and describing same, but this omission is supplied by the defendant’s answer in making definite what part of the land he 'claims or is asserting an interest in and the precise nature of such claim or interest, it will be treated as having cured the defect in the petition.</p> <p>2.' Land — Oral Partition of — Effect of Fifteen Years’ Subsequent Adverse Possession Under — Estoppel as to Subsequent Purchaser. —An oral partition of land by tbe joint owners is within the statute of frauds and, therefore, unenforceable as a contract or agreement, but where such oral partition is followed by the separate, actual, continuous and adverse possession of each, and acquiesced in by all the parties, their heirs or vendees, for more than fifteen years, it will vest in each partitioner the title to .that portion of the land allotted to him or fier; and a subsequent purchaser, after fifteen years, from an heir at law of an infant party to such oral partition, with knowledge thereof and of the subsequent holding under and recognition of the oral partition by all the parties thereto, will be estopped to assert claim to or interest in any of the land received by the other joint owners in such partition, and so actually and adversely possessed for fifteen years’ subsequent thereto.</p>

<p>1. Schools and School Districts — Territorial Limits oí Districts. — It ' is wholly within the power of. the General Assembly to fix the territorial limits of common school and graded school districts, and this power may be delegated to subordinate governmental agencies.</p> <p>2. Schools and School Districts — Boundaries.—Two adjacent sections of two counties may constitute either a common school or graded school district.</p> <p>3. Schools and School Districts — Annexation of Territory. — It is not taking property without due process of law for the trustees of a graded school district wholly in one county to annex thereto adjacent territory in another county, by and with the written consent of a majority of the legal voters in the territory to be added as is authorized by Section 4464b, Kentucky Statutes, even though it results in an increase of taxation to the residents of the annexed territory.</p> <p>4. Constitutional Law — Due Process of Law. — Due process of law, as applied to questions of taxation for public purposes, is different in its application when merely the rights of individuals are involved; when property is appropriated by the government to public uses or the Legislature interferes to give direction to its title through remedial statutes, different considerations from those which merely regard controversies between man and man must prevail.</p> <p>5. Schools and School Districts — Annexation of Territory. — Section 4464a, Kentucky Statutes, is repealed in so far as it conflicts with Section 4464b; it was the purpose of that Section to dispense with the cumbersome methods prescribed by Sections 4464 and 4464a for the annexation of additional territory for graded school districts, and furnish in lieu thereof a simpler and more direct method.</p> <p>6. Schools and School Districts — Boards—Quorum.—Where there is no statutory provision prohibiting less than the whole membership of a school board from taking action, a quorum thereof may take any action that the whole board might take.</p> <p>7. Schools and School Districts — Boards—Records.—Technical particularity in the keeping of their official records is not required of subsidiary boards; the fact that the records of its meetings were merely fastened in the record book by clips and pins does not invalidate the proceedings.</p>

<p>1. Criminal Law — Carnal Knowledge of Female Under Sixteen Years of Age — Trial.—Upon the trial of one indicted for having carnal information of a female, under sixteen years of age, where the indictment contains but one charge, the attorney for the Commonwealth can not he required before the trial commences, to elect and designate a particular act of such sexual intercourse upon which he will rely for conviction, and as being the particular one charged in the indictment, though he may do so.</p> <p>2. Criminal Law — Carnal Knowledge of Female Under Sixteen Years of Age. — If upon the trial of one accused of unlawful carnal knowledge of a female, under sixteen years of age, and the prosecution is able to produce evidence conducing to prove several acts of sexual intercourse, between the accused and the female, and the prosecutor fails to make an election of which particular act he Will rely upon for conviction, the law will elect for him the first act about which evidence is introduced for the purpose of conviction.</p> <p>3. Criminal Law — Carnal Knowledge of Female Under Sixteen Years of Age. — Upon the trial of one accused of unlawful carnal knowledge of a female, under sixteen years of age, acts of sexual intercourse between the accused and the female, both previous to and subsequent to the act elected to be relied upon for conviction, may he proven in corroboration and explanation of the principal offense, but the court should by its instructions confine the jury to a convietion or acquittal of the accused of the act upon which the prosecutor or the law has elected to rely for conviction, and should' admonish it that the previous and subsequent acts of sexual intercourse given in evidence, can only be considered as corroborative evidence of the testimony tending to prove the principal offense, and for no other purpose.</p> <p>4. Criminal Law — Carnal Knowledge of Female Under Sixteen Years of Age. — Where one indicted for unlawful carnal knowledge of a female, under sixteen years of age, is tried and convicted, and upon the' trial the prosecutor elects to rely for conviction upon a particular act of carnal information, or upon the failure of the prosecutor to elect, and the court elects for him a particular act, and upon his own motion the accused is granted a new trial,, and the verdict and judgment of conviction are set aside, the parties are placed in the same position as if no trial had ever been had, and the prosecutor may elect to rely for conviction, upon another trial, upon an act embraced within the indictment, other than the one relied upon at the first trial.</p> <p>5. Criminal Law — Carnal Knowledge of Female Under Sixteen Years of Age — Trial—Continuance.—Where one has been tried and convicted of unlawful carnal information of a female under sixteen years of age, and upon the trial a particular act of sexual intercourse is relied upon for conviction, and the accused is granted a new trial, wheh the indictment is again called for trial, the accused has a right to expect that the prosecution will rely for conviction upon the act for which he was convicted upon the former trial, and if the prosecution proposes to elect to rely upon another act of unlawful intercourse, it should make an announcement of same before the accused is called upon to answer, so if he is taken by surprise by reason of such election, and can manifest same to the court, the court may grant him a continuance. If the announcement of change of Election is not made until after the jury is empanelled, upon showing that he was taken by surprise, the court should give him a postponement of the trial, and an opportunity to prepare his defense.</p> <p>6. Criminal Law —• Accomplices — Carnal Knowledge — Incest. — A daughter of tender years is not an accomplice of her father, who is indicted for incest with her; neither is an orphan girl an accomplice of one who stands in a position of in loco parentis to her, and who is indictea for unlawful carnal information of her.</p> <p>7. Criminal Law — Carnal Knowledge of Female Under Sixteen Years of Age. — Each particular act of sexual intercourse with a female under sixteen years of age, is a separate offense, and upon the trial of one accused of such an offense, the election of a particular act upon which the prosecutor will rely for conviction, does not have the effect of a nolle prosequi, as to the offenses proven in corroboration of the offense relied upon for conviction.</p>

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

<p>Negligence — “Attractive Nuisance” — Dangerous Instrumentality— Owner’s Knowledge. — Where a railroad company, under authority of its charter, and with the consent of the city, built a viaduct, one side of which consisted of a concrete retaining wall 20 inches wide with a smooth surface on top, and ranging in height from 28 inches at one end to 15 feet at the other, held, that the retaining wall was not such a dangerous instrumentality or thing as to impose on the company any liability for its original construction or its failure to construct barriers to prevent boys from climbing on it; and where plaintiff, a boy 14 years of age, sought to recover from the railroad company damages for injuries resulting from his falling off the wall while playing thereon, the court properly sustained a demurrer to the petition.</p>

<p>1. Constitutional Law — Police Power — When Available. — The police power of a State may be called into play only when it is necessary to protect the public health or public morals or public safety; with the conduct of a private individual which he keeps to himself, and which does not operate to the detriment of others, the state as such has no concern.</p> <p>2. Constitutional Law — Act Prohibiting Possession- of Liquor in Local Option Territory Elsewhere Than Private Residence of Owner — Acts, 1914, Ch. 7.- — -Section 4 of “An Act prohibiting the shipment of liquors for sale in local option territory and prohibiting persons from having in possession for sale liquors in such territory” (Acts, 1914, C. 7, p. 25), providing that in prohibited territory it shall be unlawful for any person to “keep, store or possess any such liquors in any room, building or structure other than the private residence of such person,” held unconstitutional, as exceeding the authority of the legislature by prohibiting the possession of liquors for an innocent purpose with which the police power of the State is not concerned.</p>

<p>1. Master and Servant — Risks—Liability of Master. — The rule that the master is not liable to the servant for a risk which he creates in the' progress of the work, does not apply where the work is ■done under the order of the master, in the way he directs, and the danger is incidental to the work.</p> <p>2. Master and Servant — Mines—When Master Liable for Injury to Servant in. — Where the master knows, or by the exercise of ordinary diligence could have known, that the roof of a mine was in a dangerous condition, and he put the servant to work therein, he is liable to the servant for any injury received by reason of any dangerous condition .of the roof which was unknown to the servant.</p> <p>3. .Master and Servant — Safe Place to Work. — In order to justify the servant in relying upon the assurance of the master that a working place is safe, it is not necessary that the master should use words which, in terms, expressly or directly assure the servant that the place where he is directed to work is a reasonably safe place; it is sufficient if the acts of the master, under all the circumstances, amount to an assurance that the place where he directs the servant to work, is a reasonably safe place.</p>

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

<p>1. Homicide — Voluntary Manslaughter — When Instruction on Properly Refused. — Hall and Flanery were engaged in a card game; Miller and Allen were looking on; the score was four and four; Hall claimed to have turned a jack, making him winner of the game, and picked up the stakes, his watch, and was putting it in his pocket, when Flanery drew a revolver on Hall. Miller then shot Flanery and killed him, claiming he did so to save the life of Hall. Held, it was not error to refuse an instruction on manslaughter. Miller was either guilty of murder, or justified upon the ground of defense of another and apparent necessity.</p> <p>2. Homicide — Voluntary Manslaughter — Elements of. — Voluntary manslaughter is the unlawful killing of another intentionally, hut in sudden heat of passion due to adequate provocation, and not with malice aforethought. Provocation is adequate when it is such as is reasonably calculated to excite defendant’s passions beyond his power of control; and when there is no evidence of premeditation or other proof of malice, adequate provocation will negative malice, and entitle the accused to an instruction on voluntary manslaughter.</p> <p>2. Criminal Law — Trial—Instructions—Charge as a Whole — Omission of Self Defense Qualification From Instruction on Homicide. • — Where an apt and proper instruction on the law of self-defense is given, it is not error to omit from the instruction on homicide the qualifying phrase “not in his necessary or apparently necessary self-defense.”</p>

<p>1. 'Witnesses — Competency—Testifying Against Person Deceased— Principal and Agent. — Section 606, of the Code, excludes testimony of self interest when given against one who is dead, hut an agent may testify for his principal as to transactions had hy him as such agent with a person who is dead at the time he offers to testify.</p> <p>2. Evidence — Parol Evidence Affecting Writings — -Promissory Notes. —While parol evidence is not admissible to vary or contradict a written assignment of a promissory note, where no fraud or mistake is alleged, it is competent to show the purpose for which the endorsement was made and the note held.</p>

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

<p>1. Husband and Wife — Ante-nuptial Contract. — An ante-nuptial contract between persons contemplating marriage will be sustained if there was no fraud, deception, concealment or undue influence practiced in its procurement by the man, and it was freely and voluntarily entered into by the woman.</p> <p>2. Husband and Wife — Ante-nuptial Contract — Validity of. — Ante-nuptial contracts are not unlawful engagements or against public policy, and the mere fact that the provision made for the wife is not as much as the law would give her in the absence of a contract, is not sufficient ground on which to set it aside.</p> <p>3. Husband and Wife — Ante-nuptial Contract — Burden of Proof.— Ante-nuptial contracts are controlled by the same rules of law and stand on the same footing as other contracts, with the exception that the burden of proof is put on the party relying on the 'contract to show that it was fairly entered into, and the party assailing it, where it is inequitable and unjust, is not required to sustain the attach by the volume of proof necessary to overthrow ordinary written instruments.</p> <p>4. Husband and Wife — Contracts Between — Parol Agreements.— Previous or contemporaneous agreements in respect to an ante-nuptial contract between persons intending to marry, should be treated as merged into a subsequent written contract between them.</p> <p>5. Husband and Wife — Evidence.—In a suit by the widow to set aside an ante-nuptial contract, she cannot testify after his death concerning conversations with her intended husband in respect to the contract.</p>

<p>1. Insurance — Action on Policy — Evidence.—In an action to recover on a fire insurance policy, held that the verdict of the jury in favor of plaintiff was not flagrantly against the evidence.</p> <p>2. Trial — Continuance—Absent 'Witness — Materiality of Testimony —Diligence.—In order to secure a continuance on the ground of absent witnesses, it is necessary to show not only the materiality of the evidence relied on, but that due diligence was used to obtain it, and an affidavit which fails to show that a subpoena was issued for the absent witness and placed in the hands of the sherifí, does not establish due diligence.</p> <p>3. Witnesses — Competency—Husband and Wife — Agency.—Where the husband is agent for the wife both may testify, but not as to the same facts; the wife may testify as to the facts within her knowledge, and the husband may testify as to the facts within his knowledge, but neither can supplement the testimony of the other with respect to facts within the other’s knowledge.</p> <p>4. Witnesses — Competency—Husband and Wife — Agency.—Where, in an action on a fire insurance policy, an inventory of the articles destroyed, prepared by the insured’s husband as her agent, was read-to the jury, held, that this was not prejudicial error, as supplementing the testimony of the wife as to the number, kind and value of the articles destroyed, where the court admonished the jury that the inventory was competent to show that an inventory was prepared and mailed to the company, and for no other purpose.</p> <p>5. Evidence — Character—Time.—Evidence of the reputation of, a witness at a former residence a year before the trial is sufficiently neaB in point of time to make it admissible.</p> <p>6. Insurance — Fire—Ownership of Property — Provisions of Policy.— An insurance policy containing a provision that “this entire policy, unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void if the interest of the insured be other than that of unconditional and sole ownership,” is not invalidated by the fact that the insured’s husband had an interest in the property, where the policy also contains a provision .insuring the household furniture, etc., “the property" of the assured, or any member of family.”</p> <p>7. Insurance — Policy—Construction.—Where a policy of insurance is fairly susceptible of two constructions, it is the rule to adopt that construction that will sustain rather than defeat the policy.</p>

<p>1. Intoxicating Liquors — Criminal Prosecutions — Delivery, in Local Option Territory — Sufficiency of Evidence. — In a prosecution against a common carrier for shipment of liquors into local option territory, where the proof fails to show that the sale of liquor was prohibited by law- in the county to which the same was shipped, or that the package containing the liquor did not have on it memoranda as required by the Act of 1914, showing the name and address of the consignee and consignor, and a statement showing the use the consignee intended- to make of it, no offense is proven.</p> <p>2. Criminal Law — Trial—Instructions in Writing. — Section 225 of the Criminal Code requires that instructions in criminal cases shall always be given in writing, unless in misdemeanor cases where the requirement is waived.</p>

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

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

<p>Appeal fr.om Lincoln Circuit Court.</p>

<p>1. Railroads — Emission of Sparks from Engine Causing Eire — Negligence of Railroad Company in Failing to Provide Sufficient Spark Arresters. — Where, in an action against a railroad company for the destruction of the plaintiff’s brick plant and machinery by fire, caused by the alleged negligence of a railroad company in allowing sparks to escape from its locomotive, the plaintiff’s evidence conduced to prove that sparks and cinders were accustomed to escape in large quantities from its locomotives in passing the brick plant; that the plant could not have been fired by any agency in it or on the premises; that it might reasonably have been and probably was ignited by a spark or cinder from the defendant’s locomotive passing twenty minutes before the plant was discovered to he burning, which greatly puffed, labored and threw off much smoke at the time; that there was an unusually high wind blowing from the defendant’s railroad track in the direction of the brick plant, which was powerful enough to have carried sparks such as are emitted from a railroad locomotive as far as was the plant from the railroad track; that the fire started in the roof of the brick plant and was discovered within twenty minutes after the passing of the train, and that the locomotive of such train was not in use on the defendant’s railroad for several weeks after the brick plant was burned, these facts required the submission of the case to the jury and authorized a verdict for the plaintiff. Consequently the refusal by the trial court of a peremptory instruction directing a verdict for the defendant was not error.</p> <p>2. Damages — Instructions—May Submit to Jury Question of Value of Articles of Property in Attached List, Without Seriatim Mention of in Instruction. — An instruction telling the jury that if they found for plaintiff they should allow him what they might believe from the evidence was the fair and reasonable market value of such machinery or articles mentioned in the evidence and “shown by the list hereto attached, if any, as the jury may believe from the evidence were totally destroyed, and what they may believe from the evidence was the difference, if any, between the fair and reasonable market value, just before and just after the fire, of such of said machinery or articles as the jury may believe from the evidence were only damaged and not totally destroyed by the fire; but if any damages are allowed the plaintiff the total should not exceed $6,098.50, the sum claimed by the plaintiff in the petition,” is not open to the criticism that it singled out and gave undue emphasis to certain parts of the evidence.</p> <p>3. Appeal — Trial—Verdict—When It Will Not Be Declared Fragrantly Against the Evidence. — A verdict will not be declared flagrantly against the evidence unless it is palpably against the evidence. The fact that the evidence is conflicting or that the Court of Appeals would have made a different finding on the facts, or that in its opinion the verdict is against the weight of the evidence, will furnish no cause for setting it aside; nothing short of its being clearly and palpably against the evidence will give authority to disturb it on this ground.</p> <p>4. Appeal — Damages—Excessive Damages. — A judgment will not be reversed or a new trial granted because of excessive damages awarded by a jury, unless the damages should be so great and out of proportion to the injury or loss sustained, as to strike the mind at first blush as having been superinduced by passion or prejudice on the part of the jury.</p>

<p>1. Explosives — Negligence in Storage or Keeping on Farm. — It is not negligence per se for one to have in his possession on his farm, for a lawful purpose, high explosives; and where he has the same in his possession and temporarily stores them away in an unfrequented place, which he knows is not used for any purpose, and connot be reached except by providing a way to climb up into it, he has exercised ordinary care and there is no liability, even though the place where he has stored them is near the habitation of small children.</p> <p>2. Explosives — Negligence.—If one has used in the temporary storing of explosives all the precaution which could be reasonbly expected oí a prudent person, even when he knows that children reside and play nearby, there is no liability.</p> <p>3. Explosives — Negligence.—It was not negligence to store temporarily dynamite and dynamite caps tied up in paper sacks, in the unused loft of a tool house near the residence of a tenant who had small children, which tool house was in a separate enclosure, there being no steps or ladder to go into the unused loft, and no way to get into it except by providing a way to climb.</p>

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

<p>1. Contracts — Mutuality.-—Where a coal company contracts with a commission broker for the exclusive sale of its output of coke, so long as the services of the broker are satisfactory, and agrees that no one other than the broker shall quote on the product, and the broker agrees to keep the coal company supplied with orders at good prices, to bill and collect for the coke sold, and to guarantee the payment of all accounts, such contract is not void for want of mutuality.</p> <p>2. Principal and Agent — Contract—Termination.—A contract whereby a coal company agrees that a commission broker shall have the exclusive sale of its product of coke so long as its services are satisfactory to the coal company, in consideration of the broker’s agreeing to keep the company supplied with orders at good prices, to bill and collect for coke sold and to guarantee all accounts, is a contract that may be terminated by either party.</p> <p>3. Principal and Agent — Revocation of Authority — -Notice.—An agency contract whereby a commission broker is to have the exclusive sale of the entire coke output of a coal company so long as the broker’s services are satisfactory, requires notice of its termination by either party, and is not terminated by the coal company’s contracting directly with persons other than the broker for the sale of its product, in violation of its contract with the broker.</p> <p>4. Principal and Agent — Recovery of Commissions — Evidence.—■ The instructions being proper, held under the evidence that a broker who, under a contract, had the exclusive sale of a coal company’s product of coke so long as the broker’s services were satisfactory, was entitled to recover commissions for coke sold by the coal company direct to persons other than the broker, in violation of the contract and before its termination.</p> <p>5. Principal and Agent — Breach of Contract — Instructions.—Under a contract whereby a. broker is to have the exclusive sale of a coal company’s product of coke so long as its services are satisfactory to the company, the coal company agreeing that no one other than the broker shall quote on the product, an instruction under which the mere quoting of prices is a breach of the contract is not erroneous where the quoting of prices results in an actual sale.'</p>

<p>1. Elections — Voter—Eligibility.—A person is not eligible to vote in any minor subdivision of a county, when he has resided therein for sixty days, unless he has, also, resided in the state tor one year, and in the county, in which said minor subdivision is, for six months preceding the election.</p> <p>2. Schools and School Districts — Annexation of Territory — Jurisdiction. — Since the enactment of Section 4664b, Kentucky Statutes; and Subdivisions 1, 2, 3 and 4, the county courts have no jurisdiction to make changes, which add additional territory, in the boundaries of the graded common school districts,</p> <p>3. Schools and School Districts — Annexation of Territory. — Since the enactment of Section 4664b, Kentucky Statutes, the board of trustees of graded common school districts have authority to add additional territory to the district, but their proceedings to have any validity must be evidenced by records of such proceedings, properly made and entered upon the record book of the proceedings of such board of trustees.</p> <p>4. Elections — Voting Place. — A citizen cannot select for himself a voting place other than the place the law constitutes his legal home and habitation.</p> <p>5'. Domicile — Elections—Voting Place. — The place where a person’s habitation is, and to which he has the intention of returning when away, is deemed his residence for the purpose of fixing his voting residence.</p> <p>6. Elections — Voter—Clerk Recording Wrong Name — Effect of.— Where a person is a legal voter, and the clerk of the election, by mistake, records his vote under a name other than his true name, it does not deprive such person of his vote, or render his vote properly cast by him, as illegal.</p> <p>7. Schools and School Districts — Viva Voce Elections. — When the General Assembly provided that elections of school trustees should be held viva voce, it is to be presumed, that it was intended that it should be -done, so far as the manner of casting and receiving the votes, in accordance with the rules governing viva voce elections, which were so long in force in this State.</p> <p>8. Schools and School Districts — Viva Voce Elections. — According to the viva voce system, so long in force in this State, the voter must come into the immediate presence of the officers of the election, and with his own voice declare his choice of candidates.</p> <p>9. Elections — Viva Voce Voting. — To be in the immediate presence of the officers of the election, means that the voter must be immediately at the place where the officers of the election are situated, so that each of them may hear the declaration of the voter; and the clerk of the election, whose duty it is to record the vote, may have his information as to the voter’s name and desire^ from the voter himself, and the voter can see, if he desires to do so, how the vote is recorded, and the judges may see, also, that it is recorded in accordance with the wishes of the voter.</p> <p>10. Elections — Viva Voce Elections. — At a viva voce election the voter must personally and publicly vote, in the immediate presence of the officers of the election.</p> <p>11. Elections — Viva Voce Elections — Manner of Voting. — At a viva voce election, neither of the officers of the election can lawfully receive his information, as to the name of the voter, or the choice of the voter as to candidates, from any other source than from the voter himself, and at the time the voter is proposing to exercise his right of suffrage.</p>

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

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

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

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

<p>1. Judgment — Personal Injuries — Parties—Defenses.—In an action for personal injuries, where the defendant was a party to the record, and confined its defense to an effort to show that it was a separate entity from the real party responsible, and did nothing to deceive the plaintiff or hinder him in the prosecution of his claim against the real party responsible, and defended on the merits only in so far as. they affected it, it does not come within the rule which makes a judgment binding on one though not a party to the record, if he takes charge of the defense and pays the expense of the nominal defendant to the action.</p> <p>2. Corporations — Liability of One Corporation for Debts of Another. —The fact that one person holds stock in three companies is not proof that they are the same company, or that either is liable for the debts of the other.</p> <p>3. Corporations — Merger—Liabilities—Liens.—Where one corporation transfers all its assets to another without having paid its debts, or where one corporation goes out of existence by being merged into another, the liabilities of the old corporation are enforcible against the new one, and equity impresses a lien against the property thus taken over for the benefit of the creditors of the old concern, but before a creditor can maintain an action against the new corporation, it must reduce its claim to judgment against the old one.</p> <p>4. Corporations — Non-resident Corporation — Suit Against — Process— • Judgment can not be taken against a non-resident corporation by suing in Kentucky, and serving process on the agent of a Kentucky corporation, although the corporation in Kentucky purchased and was then operating the property in another State where the claim arose.</p> <p>5. Evidence — Stenographers—Impeachment of Certificate of Judge.— The certificate of a stenographer to the transcript of evidence can not be permitted vo impeach the certificate of the judge, even if it tended to show a contrary state of facts.</p> <p>6. Appeal — Use of Stenographic Transcript on — Attestation.—Section 4644 authorizes the use of a stenographic transcript on appeal, “when attested by the judge before whom the trial was had.”</p> <p>7. Trial — Bill of Exceptions — Extension of Time for Filing. — Under Sub-section 2 of Section 337 of the Code, as amended by the Act of 187-8, the party excepting may at any time during the term at which the judgment becomes final request an extension of time to a day in the succeeding term in which to prepare and file bill of exceptions.</p>

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

<p>New -Trial — Facts Authorizing. — Where a judgment goes by -default, and in due time afterwards a good answer is tendered by the defendant, accompanied by affidavits showing good reasons why the answer had not been filed in time, the court should set aside the judgment and permit the answer to he filed.</p>

<p>1. Negligence — Personal Injuries — Burden of Proof. — In determining liability for an injury suffered, the fundamental question is, did the party charged cause the injury; and, in determining defendant’s liability, the burden of showing negligence requires the plaintiff to show that the injury suffered was the direct result of the defendant’s negligence.</p> <p>2. Negligence — Damages—Evidence.—If a plaintiff goes no further , than to present evidence showing that the damage may have resulted from one of several causes, and that only one of these cause can be attributed to defendant’s negligence, the plaintiff fails to make out a case.</p> <p>S. ¡Railroads — Fires—Failure of Proof. — Where hay stacks, located in a field 160 yards from a railroad track, were destroyed by fire, and the proof failed to show that any railroad trains had passed the field at any time near the time the fire occurred, or that any passing engine had emitted sparks or cinders, there was a total failure of proof upon the plaintiff’s part to show that the railroad company caused the fire, and the trial court should have peremptorily instructed the jury to find for the defendant.</p>

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

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

<p>Estoppel — -Acts Constituting Estoppel- — Conveyance to Another Grantee. — Where a grantee fails to record his deed, and after living on the land for several years, sells it to a third person, and instead of re-conveying the land himself, returns the unrecorded deed to his grantor and secures a conveyance hy the grantor to the third person, who is put in possession and pays for the land, he is thereafter estopped from asserting title in himself.</p>

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

<p>1. Indictment — Requisites and Sufficiency of Accusation — Place of Offense — Separate Counts. — An indictment charging one with the offense of wilful murder as principal in the first count and as accessory in the second count, is not fatally defective because the second count fails to state the county in which the offense was committed.</p> <p>2. Criminal Law — Continuance—Discretion of Court. — There must he an affadivit of the accused filed in support of a motion for continuance, or tendered and offered-to he filed, before the appellate court may review a charge of error in refusing a continuance.</p> <p>3. Criminal Law — Appeal and Error — Record and Proceedings Not in Record — Instructions Not Included in Bill of Exceptions. — Instructions not included in the hill of exceptions or made part of the record by order of court cannot be considered on appeal though copied into the transcript by the clerk.</p>

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

<p>Courts — Fiscal Courts — Special Meeting — Notice to Members Must Be Given — Presence Dispenses With. — When a called or special meeting of a fiscal court or any public body is held, it is indispensable to the validity of the acts of the body or court at that meeting that each and all of the members of the body or court should have personal notice of the time when the meeting is to be held, if it is practicable to give each of them such notice, so that each and all of them may be present if they so desire. 'But if all of them are present at the meeting, the fact that they did not have notice will not affect the validity of the meeting, as the presence of the members dispenses with the necessity for notice.</p>

<p>Executors and Administrators — Actions—Pleading—Plene Administravit. — Kentucky Statute 3866, while it does not expressly abolish the plea of “assets fully administered” or take away the right to interpose it, renders the plea absolutely nugatory and ineffectual, and therefore unnecessary, so that a defendant administrator was not prejudiced by the ruling of the trial court sustaining demurrer to such plea. Now, as at common law, the plea could have no effect except to control the form of the judgment, and the form of the judgment is already controlled by the statute, without the making of the plea.</p>

<p>1. Trial — When Objection to Comes too Late. — When parties enter their appearance to an action and knew that the case had been set down for trial, and go into trial without objection, and no continuance is sought, an objection that the trial was premature comes too late in this court.</p> <p>2. Evidence — Introduction of Deed — Competency in Certain Case. — ■ The introduction of a deed in evidence, though incompetent except for the purpose of showing that the defendants’ mother claimed the land, held, not prejudicial where the court admonished the jury that it should he considered for that purpose only.</p>

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

<p>Telegraphs and Telephones — Streets—Vacation—Removal of Telephone Poles Lawfully Constructed — Compensation.—The owners of property abutting on a public street that has been vacated in the manner provided by law can not compel a telephone company not a party to the proceedings, which, with the consent of the city and pursuant to a valid franchise', had, prior to the vacation, constructed its poles and wires on the street, to remove them without being compensated for the damages.</p>

<p>1. Wills — Construction of. — The first and the controlling guide in the construction of wills is to arrive at the intention of the testator.</p> <p>2. Wills — Construction of — Separate Estate in Daughter — Exclusion of Husband. — Where the testator provided that “the portions to my daughters shall be held by my executors as their sole and separate estates free from any control of any husbands they may have, but with power in my said daughters to dispose of the same by deed or will, the trustees uniting in the deed,” this provision excluded the husbands from control during the life of their wives, but did not exclude them from participation in the personal estate of the wives if they died childless and intestate.</p> <p>3. Husband and Wife — Separate Estate of Wife — Disposition of.— Where by will or deed a separate estate is given to a woman, to the exclusion of her husband, and with power of disposition, she may make a will and exclude her husband from participation in the estate.</p> <p>4. Husband and Wife — When Wife Cannot by Will Exclude Her Husband from Participation in Her Estate. — Under the act of 1894, now Secs. 2187, 2148, Kentucky Statutes, a married woman may by will dispose of any estate secured to her separate use by deed or devise to the exclusion of her husband, but she cannot by will exclude her husband from participation in her estate that was not secured to her separate use by deed or devise."</p> <p>5. Trusts — Trust Estate — When Created. — Where a party by a ’ written instrument transferred and delivered to a trust company certain securities to be held by it, with full power to sell, assign, invest and reinvest, with the provision that the donor might revoke the paper, and with the further provision that if she died intestate, the estate should pass under the statute of descent and distribution in this State, this paper created a trust for the uses and benefits therein described, although the securities did not contain any endorsement by the donor evidencing the transfer.</p> <p>6. Wills — Heirs—Meaning of Word. — Where the owner of property delivered it to a trustee, with the direction that upon her death, intestate, it should pass to “those persons who under the statute of descent in Kentucky would be the heirs at law of the first party,” the husband came within the meaning of the word “heirs” and was entitled to the share of the estate that husbands receive ' under the law of Kentucky.</p> <p>7. Husband and Wife — Marriage—Domicile of Wife. — Where a woman marries in this State a man who resides in another State, with the intention of immediately going to his residence, and she does go there at once upon the marriage, the marriage, in contemplation of law, takes place in the State of the husband’s residence, and the matrimonial rights of the parties are impressed with the laws of the State of his residence, to the exclusion of the laws of this State.</p> <p>8. Husband and Wife — Domicile of Husband is Domicile of Wife.— The domicile of the husband will generally be presumed to be the matrimonial domicile, for on marriage the wife at once loses her own domicile and assumes that of her husband.</p> <p>9. Husband and Wife — Rights of Foreign Husband in Personal Estate of Wife Found in This State.- — Where the wife owned personal estate having a physical situs in this State, but died intestate and childless at the home of her husband in another State, the laws of the State of his residence controlled his right to her property in this State.</p> <p>10. Husband and Wife — Conflict of Laws — Public Policy. — The common law prevailing in New Jersey under which the husband becomes the owner of the whole of his wife’s personal estate upon her death childless and intestate, is not obnoxious to the public policy of this State, and the husband may recover the possession of the personal estate of his wife that has a physical situs in this State, although, under the laws of this State, the husband would get only one-half of his wife’s personal estate.</p> <p>11. Conflict of Laws — Public Policy. — The mere fact that the law of another State differs in degree from the law of this State does not make it so obnoxious to our laws as that our courts will not enforce it.</p> <p>12. Conflict of Laws — Public Policy. — Our courts will not recognize the existence of foreign laws that are obnoxious to some well founded rule of domestic policy, established to protect the morals, health, safety or welfare of our people.</p> <p>13. Conflict of Laws — Husband and Wife — Rights of Husband Residing in Foreign State- — Construction of Statute. — Under Section 3898, of the Kentucky Statutes, providing that “the personal estate of a non-resident who died intestate, found in this State, shall be distributed according to the laws of the State of which he was an inhabitant,” the heirs of a foreign decedent may take the estate under the common law prevailing in the State of his death, although there may be no statute in that State regulating the matter.</p> <p>14. Conflict of Laws — Husband and Wife — Construction of Statute.— In distributing the estates of non-residents, under Section 3898, it is not a proper subject of inquiry how the law of the foreign State was established or from what source it originated. It is sufficient that it is the law of that State. Whether the right of distribution in the foreign State is created by statute law, common law, or civil law, it will control the distribution of the estate in this State under this section.</p> <p>15. Executors and Administrators — Administrator—Rights of Domestic. — It is the' policy of our law that the domestic administrator shall hold the personal estate of an inhabitant of another State found in this State until all debts are paid and distribution has been ordered.</p>

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

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

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

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

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

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

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

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

<p>Adverse Possession — Operation and Effect — Extent of Possession. — The physical occupancy of a portion of the disputed premises was sufficient to extend an actual possession to the remainder thereof where same, though unenclosed, was cleared and the boundary claimed was in that manner well defined.</p>

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

<p>1. Land — Sale of Infant’s Real Estate — Failure to Execute Bond— Void Sale. — In a sale of infant’s land under Section 489 of the Code, where defendant admits that the bond required by Section 493 of the Code was not executed, the sale is void.</p> <p>2. Land — Entry Upon Under Void Sale — Improvements.—The rule that a vendee who enters upon land under a voidable sale and makes lasting and permanent improvements upon the same that enhance the vendible value thereof, is entitled to compensation therefor, does not apply where the vendee fails to show that the improvements were lasting or permanent, and of such nature as to enhance the vendible value of the land.</p>

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

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

<p>1. Land — Adverse Possession — Instruction.—Where a party owns several patents and lying between them is vacant and unappropriated land not covered by his patents, and there is no well-defined or well-marked boundary surrounding all of the land which he claims, his entry upon one of his patents does not extend his possession to such vacant land upon which he never makes any entry, improvement or enclosure; and in an action to quiet title it is not error to refuse instructions on adverse possession.</p> <p>2. Land — Actidn to Quiet Title — Evidence.—In an action to quiet title, evidence in regard to location of certain patents examined and held that the finding of the jury on the question of their location was not flagrantly against the evidence.</p>

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

<p>Judgment — Finding of Chancellor. — In an equitable action involving the title to a cemetery lot the evidence upholds the judgment of the Chancellor below, and it will not be disturbed.</p>

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

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

<p>1. Trusts — Resulting Trusts — Section 2353 Kentucky Statutes. — Under Section 2353 of the Kentucky Statutes providing that when a deed shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the latter, a trust results in but two cases: (1) where the grantee takes a deed without the consent of the person paying the consideration; (2) where the grantee, in violation of some trust, purchases the deeded lands with the effects of another person.</p> <p>2. Trusts — Consent—Evidence.—In an action by a wife to establish a trust in land deeded to her husband on the ground that she furnished a portion of the purchase money, evidence examined and held insufficient to show that the deed was taken to the husband alone without her consent.</p> <p>3. Witnesses- — Husband and Wife — Section 606 of Civil Code. — In an action by a wife to establish a trust in property deeded to her husband on the ground that the land was so conveyed in violation of an agreement, by which the land was to be conveyed to them jointly, the wife is not a competent witness to establish such, an agreement.</p>

<p>Fraudulent Conveyances — Remedies of Creditors — Gift of Husband to Wife — Evidence.—In an action brought by creditors of the husband to subject to the satisfaction of their demands, property alleged to have been fraudulently given to the wife, the evidence examined and found not to support the charge of fraud.</p>

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

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

<p>Sales — Warranties—Actions and Counter-claims for Breach of Warranty — Evidence—Weight and Sufficiency. — In an action to collect a note given for the purchase price of a horse, the buyer set up a counter-claim for breach of warranty, claiming that the seller represented the horse to be Little Frank when his true name was Hankie; and that the seller represented his racing record to be 2:21% when in fact it was 2:14%. The evidence considered, and held, that defendant failed to show the representations claimed to have been made.</p>

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

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

<p>Master and Servant — Assumed Risk — Accidental Injury. — There can be no recovery for the death of an experienced employe who fell through an opening in an unprotected elevator shaft, with the condition of which he was familiar, while assisting in lowering whiskey with a block and tackle. As there was no defect in the machinery used or the premises where the work was being done, and no evidence tending to show the cause of his fall, the case presents every element necessary to perfect the complete defense of accidental injury and assumed risk.</p>

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

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

<p>Insurance — Acting as Agent in Violation of Statute. — One who undertakes, in violation of a statute, to act as agent for an insurance company not authorized to do business in this State, personally guarantees the solvency of the company, and its ability to perform its agreement, and is liable for loss sustained because of its insolvency or failure to perform its contract, to one contracting with it through such agent without knowledge that the company was not authorized to do business, and believing, that the agent was duly authorized irrespective of any false representations concerning its solvency, if the company itself would have been liable to the insured.</p>

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

<p>Estoppel — Rent—Action for — When Not Maintainable. — Where, following the affirmance by the Court of Appeals of a judgment of the circuit court, which decreed the cancellation of a deed from the plaintiff to the defendant and. referred the cause to a commissioner to report as to rents and other matters of account between the parties, an agreed order was entered hy the latter setting aside so much of the judgment as referred the case to the commissioner and reciting that all matters between them were settled and the action dismissed, plaintiff and defendant each to pay his and her own cost; held, that such agreement estopped the plaintiff to recover in a subsequent action, a year’s rent which had accrued during the pendency of the case in the Court of Appeals, and substantially all of which was due at the time the agreed order was entered.</p>

<p>1. Wills — Construction.—Under a will which devises to the testator’s young married daughter her portion of his estate in trust for her children, and which provides that in the event of her death the property so devised shall he held in trust by his • son for the benefit of her children, the daughter took a life estate and her children a fee in remainder.</p> <p>2. Limitation of Actions — Remaindermen.—The statutes of .limitation do not begin to run against remaindermen until the expiration of the life estate, although the remaindermen may before such expiration go into equity and have their title in remainder quieted as against an adverse claim.</p>

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

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

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

<p>Contracts — Husband and Wife — Settlement.—Under a contract settling the property rights of husband and wife, which provides: “and it is further agreed and understood that in the event either party brings suit for a divorce, the complainant is to pay all costs of same, including attorneys fees and cost of court,” the wife who brings a'suit for divorce'is not liable for costs and attorneys’ fees incurred by her husband in resisting the divorce.</p> <p>2. Judgment — Error.—W'here, under a settlement contract, a husband agrees to convey his land and personal' property to his wife and she agrees to pay $500.00 in cash, $1,000.00 in six months and turn over to him a certain black mare, it is error in an action to enforce the contract, to confirm the wife’s title to the property involved without providing in the judgment that the consideration moving from the wife should be paid or secured to be paid before the judgment takes effect.</p> <p>8. Judgment — Costs.—Where, under a settlement contract between husband and wife, the wife is liable only for the costs incurred in obtaining a divorce and it appears that a large portion of the costs was incurred by the husband in resisting the divorce and by the wife in seeking the enforcement of the contract, and there is nothing in the record to show that one-half of the entire costs is less than that portion of the costs properly chargeable to the wife, a judgment requiring the wife to pay only one-half of the costs will not be reversed.</p>

<p>1. Reformation of Instruments — Mistake—Equity.—Under the general principles by which courts of equity are guided, a person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently, in the minds of all parties, down to the time of its execution; and also, he must be able to show exactly and precisely the form to which the deed ought to be brought.</p> <p>2. Reformation of Instruments. — To reform a contract, and then enforce it in its new shape, calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than recission.</p> <p>3. Reformation of Instruments. — In order to justify a decree for reformation in cases of pure mistake, and in the absence of fraud, it is necessary that the mistake should have been mutual. Where the mistake'has been on one side only, the utmost that the party desiring relief can obtain is rescission, not reformation.</p> <p>4. Reformation of Instruments. — In no case will a court declare an alteration in the terms of a duly executed contract, unless the proofs are full, clear and decisive; mere preponderance of evidence is not enough; the mistake must appear beyond reasonable controversy. . .</p> <p>5. Contracts — Rescission—Warranty.—In the absence of fraud, insolvency or non-residence of a vendor, a vendee, in peaceable possession of land, under a deed containing a -covenant of general warranty, is not entitled to a rescission of the contract when sued for the purchase money, although the vendor may have represented his title as perfect, when, in fact, it was not. In such a case the vendee must pay the purchase money and rely upon the covenant of warranty in case of an eviction.</p> <p>6. Contracts — Rescission.—In enforcing the equitable right of rescission, a court of chancery will, as the necessities of the case require, afford relief either by directing a reconveyance, or simply by ordering the instrument to be surrendered for cancellation. This relief is based upon equities which arise out of fraud and mistake.</p> <p>7. Cancellation of Instruments — Rescission.—Cancellation of the purchase money notes which are outstanding, or injunction against their collection, unless they have passed into the hands of a bona fide holder in the course of trade, as well as recovery of the portion of the purchase money already paid, is proper relief to be awarded on a decree for rescission at the suit of the vendee.</p> <p>8. Vendor and Purchaser — Relief to Purchaser — Taxes Paid and Improvements. — As a condition upon granting relief to a vendee, he should restore his vendor, as far as possible, to the position which he occupied before the transaction. This requires the vendee to account for the use and occupation of the land, and for any w'aste committed by him; and the vendee is entitled to a return of his purchase money, with interest, and any taxes paid and improvements put upon the land to the extent that they have increased the vendible value of the land; and to the extent that these credits exceed the charges against the vendee, he is entitled to a lien upon the land.</p>

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

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

<p>1. Eminent Domain — Proceedings to Take Property and Assess Compensation — Evidence as to Compensation. — Upon a proceeding to condemn land for railroad right-of-way purposes, it is competent for condemnor to show in evidence the fair market value of lands in the same community as those sought to he condemned. If the land sought to be taken is more valuable than other similar lands in the community, that fact may he shown by the owner, thus destroying the force of the testimony concerning values in the community generally.</p> <p>2. Eminent Domain — Proceedings to Take Property and Assess Compensation — Appeal—Review.—The verdict of the jury in a proceeding to condemn' private property for railroad purposes will not he disturbed on appeal unless flagrantly against the weight of the evidence.</p> <p>3. Eminent Domain — Proceedings to Take Property and Assess Compensation — Costs.—The costs in the county court in an eminent domain proceeding must he paid by the condemnor regardless of.whether there was an appeal from the judgment of the county court, and without reference to which party was successful upon the appeal, in reducing or increasing the compensation.</p>

<p>1. Ejectment — Patents—Exclusions—Burden of Proof. — If exclusions are mentioned in what may be called a “blanket patent,” the owner of the patent, who sues to recover land that lies within the lines of his patent, must show that the land he claims is within his patent and is not covered by any of' the exclusions. If, however, the patent does not mention any exclusions and grants all the land it describes, the burden is upon the defendant to show that the land he claims is covered by the senior patent under which he claims.</p> <p>2. Ejectment — Patents—Exclusions—Instructions.—In a suit by the owner of a “blanket patent” containing no exclusions to recover land which was claimed by the defendant under a senior patent, the court should instruct the jury that if they believed from the evidence that the land in controversy was within the exterior lines of the “blanket patent,” they should find for the plaintiff, unless they believed from the evidence that it was covered by the senior patent.</p> <p>S. Ejectment — Patents—Senior Patents. — Although a patent may not mention any exclusions or senior patents, the law will exempt from its operation all land that is covered by senior patents.</p>

<p>1. Attachment — Liens—Waiver.—A creditor waived his attachment lien on certain property of the debtor by subsequently entering into and accepting the benefits of a trust agreement with the debtor and other creditors whereby the assets of the debtor including the attached property were placed in the hands of a trustee to be pro rated among the several creditors.</p> <p>2. Contracts — Debtor and Creditor. — Where the creditors hnew the embarrassed condition of the debtor and the nature of his assets, but neither he nor they realized that his embarrassed condition would depreciate the value of his assets, the fact that he placed too much value on certain securities did not amount to such a misrepresentation of the amount of property owned by him as would afford relief against a contract made upon the faith of the estimates.</p> <p>3. Alteration of Instruments. — Any alteration in a written contract tends to discredit it, and any change" is material where the rights or remedies of the other obligors are affected, or where the integrity or the identity of the paper is rendered doubtful, but the mere waiver of a right possessed by one party under the contract is not a ground for complaint by the others under the circumstances of this case.</p> <p>4. Equity. — Equity will not suffer one to accept the benefits of a contract and escape its burdens.</p>

<p>Pleading — When Not Part of Record — Appeal and Error. — A pleading merely tendered and not filed or made a part of the record of the lower court hy an order of that court, although copied into the record hy the clerk is not a part of the record, and cannot he considered on appeal.</p>

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

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

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

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

<p>Wills — Fee Tail — Section 2343 Kentucky Statutes. — Where there is nothing'in a will to indicate a contrary intention, a devise to one and his “bodily heirs” creates an estate tail which, by Section 2343 of the Kentucky Statutes, is converted into a fee.</p>

<p>1. Bills and Notes — Holder in Due Course — Fraud—Knowledge.—In an action- on a negotiable note by one claiming to be a holder in due course, evidence examined and held sufficient on the question of fraud and the holder’s knowledge thereof to take the case to the jury.</p> <p>2. Evidence — Books—Summary—Conclusions from Books. — Where, in an action on a negotiable note by a holder in due course, it is claimed that plaintiff, together with the other two stockholders of the company to which the note was given, operated the company under an agreement by which the profits were to be divided, not on the basis of stock ownership but under an agreement by which plaintiff was to lend the company money at 7 per cent., and the profits were to be equally divided between him and the other two ' stock-holders, it is error to permit an expert accountant to file a summary of what the books show and to place before the jury his conclusions drawn from the books which-, were not in evidence, for the purpose of showing that plaintiff.' was jointly interested in the note sued on and was not, therefore, a holder in due course.</p> <p>3. Bills and Notes — Holder in Due Course — Fraud—Joint Interest of Holder. — Where there are three stock-holders in a corporation and the profits of the corporation are not divided on the basis of stock holdings but by an agreement under which one of the stock-holders is to furnish the corporation money at 7 per cent, and the profits are to be divided equally between the three stockholders, and a note payable to the corporation is obtained by fraud and purchased by the stock-holder lending the money, he is jointly interested in the note and is not a holder in due course, but if he has sold out his interest in the corporation and at the time of, the purchase of the note sued on is a mere creditor of the corporation, he is a holder in due course unless the note was obtained by fraud and he had actual knowledge thereof or knowledge of such facts that his action in taking the instrument amounted to bad faith.</p>

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

<p>1. Courts — Fiscal Courts — Illegal Purchase of Machinery — Rights and Liabilities of Parties. — Where a fiscal court without authority of law bought an automobile and paid for it, in an action by the fiscal court to recover the sum paid, it should be required ■ to return the machine.</p> <p>2. Courts — Fiscal Courts — Unauthorized Purchase of Property By— Rights and Liabilities of Parties. — Where a fiscal court without authority bought and paid for an automobile, in a suit by the court to recover back the purchase price, the seller could not, in defense of the action, recover the value of the depreciation in the machine or the value of its reasonable use during the time the court had it. If the fiscal court cannot lawfully purchase machinery, it cannot be required to. pay for the use of it.</p>

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

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

<p>1. Sales — Warranty—Seed—Damages—Evidence.—In an action for damages for breach of warranty in the sale of seed, evidence examined and held that the finding of the jury in favor of the defendant was pot flagrantly against the evidence.</p> <p>2. Sales — Warranty—Implied Warranty — F'acts Negativing Implied Warranty. — Where the seller of seed wheat brought from a neighboring State informs the purchaser that he knows nothing about the wheat, either as to its name or kind, except the information contained in letters, telegrams and inspectors’ receipts received from his vendor, and the purchaser after inspecting the wheat makes the purchases alone upon these statements, there is no implied warranty either as to the name or quality of the wheat sold.</p> <p>3. Pleading — Warranty—Necessity for Plea. — Where, in an action for damages for breach of warranty in the sale of seed wheat, the warranty is denied, the defendant may show facts negativing the warranty and have this phase of the case submitted to the jury without pleading such facts.</p>

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

<p>Municipal Corporations — Improvement of Streets — Abutting Owners. — A street, without regard to its previous condition, maybe originally improved once at the expense of the abutting owner, and where the property of the abutting owner has never been assessed for street construction, and the work so far as the owner is concerned is original construction, the city has the right to charge them with the expense of it.</p>

<p>1. Sales' — Remedies of Seller — Actions for Breach, of Executory Contract-Measure of Damages. — The measure of damages in an action for the breach of an executory contract of sale, where the goods are in esse, is the difference between the contract price and the market price at the time and place of delivery.</p> <p>2. Sales — Remedies of Seller — Actions for Breach of Executory Contract of Sale — Weight and Sufficiency of Evidence. — Where in an attempted executory contract of sale the parties have not definitely fixed the price or rendered it capable of ascertainment with reasonable certainty by the terms of the contract in respect of the price, the contract is incomplete and unenforcible.</p>

<p>1. Banks and Banking — Joint Deposits — How Payment Made.— Where several persons deposit a sum of money in a bank to their joint credit, the bank, before paying out the money, must have a check signed by each of the depositors.</p> <p>2. Banks and Banking — Joint Deposits. — Where a deposit is made to several persons, jointly, in the absence of a showing to the contrary, the presumption may be indulged, that each one oí the depositors has an equal interest in it.</p> <p>3. Banks and Banking — Joint Deposits. — Where a deposit is made to several persons, jointly, this is notice to the bank, that each one of them has an interest in it, although the bank may not know the extent of their respective interests.</p> <p>4. Banks and Banking — Joint Depo'sits. — Where a sum is deposited to -the joint credit of two or more persons, and one absconds, or perversely refuses to join his co-depósitors in signing a check, the bank is within its rights to refuse to pay out any of it, and a court of equity may be applied to for authority to pay out the money, and the bank may pay out same in accordance with its judgment.</p> <p>5. Banks and Banking — Joint Deposits. — Where a bank, without authority from a joint depositor, pays out the funds upon a cheek signed by less than all the depositors, and such joint depositor receives the benefit of the money, he can not make the bank liable to him, if he has received the benefit of his entire interest in the fund.</p>

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

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

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

<p>1. Criminal Law — Motion for New Trial — Filing Additional Grounds —When Permissible. — Additional grounds in support of a motion for a new trial in a criminal proceeding may be filed as a matter of right during the term at which the verdict was returned and before the motion is finally disposed of; but in no event, unless the judgment be postponed as provided for by Section 273 of the Criminal Code may such additional grounds be filed at a succeeding term.</p> <p>2. Criminal Law — Judgment—Power and Duty of Court in General.— After the expiration of the term at which a judgment is rendered, the circuit court has no power to amend or correct it in any matter of substance or affecting the merits, except as permitted by the Code, although mere clerical errors may be remedied; and this rule may not be evaded or set at naught by the failure of a -circuit judge to sign the last day’s orders of the preceding term. If the judgment entered on the order booh is a true recital of the pronouncement of the court, it is the duty of the judge to sign it unconditionally; he has no- power to set it aside at a subsequent term although it is unsigned.</p>

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

<p>1. Master and Servant — Appliances—Damages.-—-In an action for damages because of the failure to furnish a workman a safe appliance with which to do the work required of him, it is not sufficient to authorize a recovery to show only that the appliance was not safe, hut it must also he shown that the unsafe appliance was the proximate cause of the injury.</p> <p>2. Master and Servant — Personal Injuries. — Courts and juries are not authorized to speculate or theorize, without substantial evidence, as to how accidents are brought about; there must be either direct evidence, or such circumstances shown as will enable one to determine with some degree of accuracy the cause or causes.</p> <p>3.< Master and Servant — Personal Injuries. — When there is given to the evidence its fullest effect, and considering every fair inference that may be deduced from it, the injury may as reasonably he attributed to a cause for which the defendant was not liable, as to a cause for which it was liable, there can be no recovery.'</p>

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

<p>1. Continuance — Larceny—Trial—Continuance Properly Refused.— Where on the trial of the defendant under an indictment for grand larceny, he asked a continuance because of political excitement in the county over a homicide, and the refusal of an attorney whom he had employed to defend him; as the affidavits for such continuance failed to show any 'connection between his crime and the homicide, or that he was not properly defended by other counsel who represented him on the trial, the overruling of the motion for such continuance was not error.</p> <p>2. Continuance — Affidavit—When Refusal of Time to Prepare Same Not Etror. — Where, after the calling of the case for trial, the accused asked of the court time to prepare a second affidavit showing the absence of material witnesses and the facts to which they, would testify, the court refused the time asked, but told tha accused that he might prepare and file the affidavit at any time before the evidence for the Commonwealth was concluded, and! when prepared and filed that its contents might be read as the> depositions of the absent witnesses; as the accused failed tot prepare or file such affidavit, it will be presumed that there were no absent witnesses whose testimony would have been beneficial to him, and in such state of case the ruling of the court complained of was not error.</p> <p>3. Evidence — Incompetent Evidence — When Admission of Will Not Be Treated as Error. — The admission of incompetent evidence will not be regarded as error when such evidence was not objected to by the accused, nor an exception taken to the ruling of the trial court in admitting it.</p> <p>4. . Trial — Misconduct of Juror — When Not Ground for New Trial.— The alleged misconduct of a juror in permitting a person not of the jury to say in his presence that there appeared to be little evidence on which to convict the accused, could not have been prejudicial to the accused and was insufficient to authorize the granting of a new trial, as it was made to appear from the bill of exceptions that the juror made no reply to the statement and that during the deliberations of the jury he voted to acquit the accused, and was one of the last to vote for his conviction.</p> <p>5. Appeal and Error — Empaneling of Jury — Error in Cannot Be Reviewed. — Section 281 of the Criminal Code prevents the Court of Appeals from reviewing any rulings of the trial court in the matter of selecting or empaneling the jury.</p>

<p>Receivers — Allowance for Services- — Affidavit.—It is error for the circuit court to make an allowance to a' commissioner or a receiver for his services until the affidavit provided for in Section 396, Kentucky Statutes, is filed; hut such allowance if made in the absence of the affidavit is not void, hut merely erroneous.</p>

<p>Appeal from Pike Circuit C'oui».</p>

<p>1. Contracts — Services.—Decedent’s Estates — Action Against to Recover for Personal Services — When Petition May Be Amended.— Where each of two plaintiffs sued the administrator of a decedent to recover for personal services rendered the latter, and the petition of each based the recovery on the ground that there was an express promise by the decedent to pay the plaintiff the reasonable value of the services; an amended petition offered by each plaintiff alleging that the decedent promised to make a will whereby she would device such plaintiff property or a sufficiency thereof to reasonably compensate her for such services, was properly allowed by the court to be filed.</p> <p>2. Action — Trial of Two or More Actions Involving Same Issues Brought by Different Plaintiffs Against Same Defendant. — When Cannot be Tried Together. — Ordinarily where several actions are brought by different plaintiffs against the same defendant and involving the same issues, the court may order them tried together; but where the issues in the several cases are such as must be tried by a jury, and there is objection from one of the parties, and the circumstances are such that the trial of the eases together would tend to place the objecting party in a position not occupied by his adversaries, and that would probably give the latter an undue advantage in the trial, the court should not permit them to be tried together. Whether the cases should be tried together is a matter in the discretion of the court, and such discretion will not be interfered with on appeal unless it is clearly made to appear that the discretion was abused.</p> <p>.3. Evidence — The Plaintiff in Each of Two Similar Actions Against an Administrator Cannot Testify for Himself, but Each May Testify for the Other.- — While under Section 606, Subsection 2, Civil Code, parties to an action or actions by or against the administrator of a deceased person cannot testify for themselves, that fact does not render them incompetent to testify for each other; nor does the fact that they are joined as plaintiffs or defendants render them incompetent to testify for each other, as the jury might find for one and against the other.</p> <p>4. Trial — Erroneous Instructions — When Prejudicial. — The two in-' structions given in each of these cases, while properly advising the jury that in order to entitle the plaintiff to recover they must believe from the evidence not only that the services described therein were performed by the plaintiff, but that they were performed under an agreement with the decedent that she would make a last will and testament and devise to the plaintiff as much or more property as was sufficient to recompense and pay her for all services rendered to the decedent under such agreement, if any there was, and that such services were rendered by the plaintiff under the agreement with the expectation on her part and on the part of the decedent that she should be paid therefor; it erroneously failed to advise the jury that they must confine the recovery to the value of the services rendered during the years and following the intervals set out in the petitions as amended.</p> <p>5. Trial — Verdict—Excessiveness of — When Ground for Reversal.— A verdict in each of these cases awarding the plaintiff $7,500 against the administrator of the decedent is so exorbitant as to strike the mind at first blush as having been superinduced by passion or prejudice.</p>

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

<p>1. New Trial — Grounds—Excessive Damages. — A new trial will he granted on the ground that the damages are excessive, only when the damages allowed are so great and disproportionate to the injury received as to strike the mind at first blush as having been superinduced by passion or prejudice.</p> <p>2. New Trial — Verdict Disproportionate to Injury. — Where an automobile traveling slowly, attempted to pass a buggy from the rear, and collided with the rear wheel of the buggy, throwing the two occupants thereof to the ground, but without inflicting any permanent or serious injuries upon either of them, a verdict of $500.00 for one of the occupants, and a verdict of $1,500.00 for the other occupant, were so great and disproportionate to the injuries received as to come within Subsection 4 of Section 340 of the Civil Code of Practice, which allows a new trial in cases of excessive damages appearing to have been given under the influence of passion or prejudice.</p>

<p>Appeal and Error. — This case is reversed upon the authority o£ Benge v. Creech, this day decided.</p>

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

<p>1. Appeal and Error — Determination and Disposition of Cause— Mandate and Proceedings in Lower Court — Effect in Lower Court of Decision of Appellate Court — As Law of the Case. — In this case, on the former appeal the appellate court held that the conductor was negligent and that the brakeman was not; hut the conductor did not testify upon the first trial. Upon the second trial, the conductor testified, and a different state of facts was presented. The opinion on the former appeal was therefore not conclusive as the law of the case upon the second trial.</p> <p>2. Trial — Course and Conduct of Trial in General — Presence of Parties and Relatives. — In an action under the Federal Employers’ Liability Act to recover damages for the negligent killing of the husband and father, it was not error to refuse to exclude from the court-room a child of decedent, six years of age and feeble-minded.</p> <p>3. Trial — Verdict—Required Number of Jurors in Action Under Federal Employers’ Liability Act. — It is not required that the verdict in an action in the State courts under the Federal Employers’ Liability Act should be agreed upon by all of the jury; nine or more jurors may make a verdict.</p> <p>4. Courts — Concurrent Jurisdiction-i-State Courts and United States Courts. — In conferrihg concurrent jurisdiction upon State courts in actions brought under the Federal Employers’ Liability Act, Congress imposed no restrictions as to procedure; and although the unanimous verdict and preponderance of evidence rules control in the Federal Courts, the procedure in the State courts remains unchanged.</p> <p>6. -Constitutional Law — Validity of Statutory Provisions — Amendment to Federal Employers’ Liability Act. — The amendment of the Federal Employers’ Liability Act, of 1910, conferring concurrent jurisdiction upon State courts to try the actions thereunder created, by preventing the removal of such actions, is not in contravention of the Seventh Amendment of the Federal Constitution preserving the right to jury trial in common law actions.</p>

<p>Taxation — Situs of Accounts Receivable at Foreign Branches of Domestic Corporation. — A domestic corporation engaged in the manufacture and sale of agricultural implements in Louisville, has selling agencies or branches in cities outside the .State, at which separate records and hank accounts are kept for the territory tributary to sucb branches. In this action the Commonwealth sought to assess the accounts receivable of such selling agencies for taxation; and it is held that as the property sought to be assessed has acquired a taxable situs in the States where the branches are located, it is immune from taxation here.</p>

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

<p>1. New ' Trial — Suspension of Judgment. — In a proceeding to assess property omitted from taxation, under Section 4260 of the Kentucky Statutes which provides that the judgment of the court shall have the same force and effect as the judgment of the court in civil cases, and that either party may appeal from a decision of the county court to the circuit court, and then to the Court of Appeals, as in other civil cases, a motion for a new trial made in the circuit court has the effect of suspending the judgment of that court until the motion is disposed of; and an appeal then taken by the losing party to the Court of Appeals is within time, although taken at the third term of the circuit court after the judgment was rendered.</p> <p>2. Taxation — Assessment of Omitted Property — New Trial — Bill of Exceptions. — In a proceeding under Section 4260 of the Kentucky Statutes to assess property omitted from taxation, the losing party under the judgjnent of the circuit court may, at the term at which the motion for a new trial was overruled, be granted time until the succeeding term thereafter to file his bill of exceptions, although the motion for a new trial was not overruled until the third term after the judgment was entered.</p>

<p>1. Damages — Sales—Failure of Seller to Perform Contract — Measure of Damages. — In a contract for the sale and delivery of personal property, the damages which the buyer is entitled to receive for a failure of the seller to perform his contract, by the delivery of the article, is'the difference between the contract price, and its market value at the time and place of delivery, if there is any market price for it at such place, and if not, then in place of the market price, its actual value, at such time and place.</p> <p>2. Damages — Sale and Delivery of Personal Property. — Where there is a contract for the sale and delivery of personal property, and at the time of the making of the contract, the seller knew that the inducement to make the contract, on the part of the buyer, was to resell it for profits, and the resale of it for profits was in contemplation of the parties at the time of the making of the contract,'•and the seller violates his contract, by failing to deliver the goods, at the time and place specified, and the buyer tries to minimize his loss, if any, by purchasing other goods of similar kind and character to supply the place of those which he failed to receive under the contract, then the damages to which the buyer is entitled, is the difference between the contract price and the market price, at the time and place of delivery, but, if by diligent effort, the buyer is unable to purchase other goods to supply the place of the ones he failed to receive under the contract, then his damages are the profits, which he would have realized from a resale of the goods.</p> <p>3. Damages — Sales—Failure of Seller to Deliver Goods. — A buyer of personal property, in order to entitle himself to damages for a failure of the seller to deliver the goods, other than nominal damages, must make diligent efforts to minimize his loss, but he is not required to buy other goods, at such prices, in order to replace the ones failed to be received, that it would result in a loss to his business.</p>