Volume 164 — Kentucky Reports

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

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

<p>1. Elections — Pleading.—Where in an election contest it is alleged that certain parties voted illegally and without right and the petition failed to state the names of the parties so voting, the contention of contestee that the petition should he more specific should have been sustained.</p> <p>2. Elections — Recount of Ballots — Refusal of Court tó Order. — Where it is admitted that the ballot boxes had been kept in a place where unauthorized and interested persons had opportunities to tamper with them the court properly refused to open the boxes and recount the ballots.</p> <p>3. Elections — Ballots—Burden of Proof. — The burden is upon the party producing and relying upon such ballots to establish their integrity clearly and satisfactorily. To render them incompetent as evidence, the objecting party is not compelled to show that they have been tampered with, but it is only necessary to show that interested and unauthorized persons had opportunity to do so.</p> <p>4. Elections — Fraud or Irregularities — Evidence.—Where the principal ground relied upon was that of fraud upon the part of the election officers, the evidence examined and fails to show any fraud or corruption upon the part, of the election officer, and while there is evidence of some irregularities, Held, that there was not enough to change the result of the election, and the election was, therefore, valid.</p>

<p>1. Railroads — Trespassers.—Railroad companies owe to trespassers on their tracks no lookout duty.</p> <p>2. Railroads — Trespassers.—Even though the engineer in charge of a train discovers the presence of a man on the track at a sufficient distance ahead to enable him to stop his train before reaching such person, he is not bound immediately to take steps to stop the train or to slacken its speed, but has a right to assume that such person with, due regard to his own safety will leave the track before the train reaches him; he is bound only to take such steps to stop his train, when under the circumstances, he realizes that the trespasser- is either unconscious of the- approach of the train or does not intend to leave- the track.</p> <p>3. Railroads — Trespassers.—The necessities of commerce and the convenience ,of'the traveling, public require that trains shall be run as near as may be on schedule time; if an engineer was required by law to stop his train or even slacken its speed, every time he discovered a trespasser on the track ahead, the efficiency of railroad operation would be greatly impaired.</p>

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

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

<p>Wills — Construction—Actions to Construe Wills — Fees and Costs. —Where the executrix institutes a proceeding for the ostensible purpose of obtaining a construction of the will but in fact for the purpose of enforcing a claim against other beneficiaries, the fees of plaintiffs’ attorneys are not a proper charge against the estate.</p>

<p>1. Payment — Application by Court. — Where the court applies a payment which the creditor has not himself applied, the court will do so only upon and in accordance with equitable principles.</p> <p>2. Usury' — Rights and Remedies of Parties — Weight and Sufficiency of Evidence. — The burden is upon him who asserts a charge of usury to establish his contention with reasonable certainty.</p>

<p>f. Electricity — Care Electric Light Company Required to Exercise.— An electric light company is required to exercise the highest degree of care and skill known, which, may be exercised under the same or similar circumstances, to prevent injury to persons, who are its patrons, or who may be at places, where they have a right to be, for either business, or pleasure, or who may be engaged in doing things, which they have a right to do.</p> <p>2. Electricity — Duty of Electric Light Company to Exercise Highest Degree of Care. — An electric light company, engaged in distributing electricity for lighting or other purposes, owes the duty of exercising the highest degree of care and skill, in inspecting its wires, equipment and apparatus, and keeping same in repair, to prevent injury to persons, and such duty extends to all wiring, which may be situated upon roads, and streets, and places where persons may be expected to be, although such wiring is not the property of the company, if the company allows its current of electricity to pass upon the wires.</p> <p>3. Electricity — Electric Light Company — Inspection.—An electric light company, engaged in generating and distribixting electricity, does not owe the duty of inspection of the wires, fixtures, and apparatus, used and owned by persons, and which are situated in their houses for lighting purposes, where the only contract is for the electric light company to connect its system with the wiring of such parties, and furnish the current of electricity, and it is not responsible for any injury, which a patron may suffer, from a cause arising solely from the defective condition of such inside wiring and apparatus, unless the company has knowledge of such defective condition, and having such knowledge, sends its current into the building.</p> <p>4. Electricity — Contract of Electric Light Company to Furnish. — • Where an electric light company has a contract to furnish electricity for lighting a building, and, also, owns and installs the wiring and fixtures for it, in the building, it owes a duty of inspection of such wiring and fixtures, and the right to do so, and must exercise the highest degree of care and skill in such inspection, and keeping same in repair.</p> <p>5. Electricity — Electric Light Company — Inspection.—Although an electric light company may not owe a duty of inspection and repair of the inside wiring and fixtures for lighting purposes, in a house owned or used by the occupant, and to which it furnishes the necessary current of electricity, and although such wiring and fixtures may be in defective condition, it is responsible for injuries suffered from its sending into the building an unnecessary, unusual, and dangerous current of electricity, without which the defects in the wiring and apparatus would be harmless.</p> <p>6. Electricity- — Electric Light Company — Degree of Care Required: of. — Patrons of an electric light company, in the use of the lights: in their houses and places of business, have a right to assume, that the wires, equipment, and apparatus of the company, for the generation and distribution of the electrical current, are in good condition, working order, and repair, unless they have knowledge to the contrary; and they have a right to assume, that the company is exercising the highest degree of care and skill known, which may be exercised under the same or similar circumstances, in the inspection and repair of its equipment, wires, and apparatus, and the use of all known necessary devices, to prevent injuries from the electrical current used, unless they have knowledge to the contrary.</p> <p>7. Trial — Instructions.—One can not object to the giving of an. instruction, which he has asked for and offered in writing.</p> <p>8. New Trial — Verdict—Impeachment.—The affidavit of a juror can not be received to impeach his verdict, or to prove the misconduct of himself, or of his fellow jurors, upon a motion for a new trial.</p> <p>9. Trial — Jury.—There is no express provision of the statutes, which authorizes the court, in the trial of a civil case, to put the jurors in charge of an officer, and to require them to remain together, until the case is finally submitted to them.</p> <p>10. New Trial — -Motion For. — The Civil Code, Section 343, requires that a motion for a new trial, based upon Subsection 2, of Section 340, must be sustained by affidavits, and does not provide for an examination of witnesses orally in court, in support of the motion.</p> <p>11. Trial — Jury—Submission to Jury. — Under circumstances, the trial court might be justified in placing a jury in a civil case in charge of an officer, before the final submission of the case to them, but such action could only be in furtherance of justice, and to prevent improper influences reaching the jury, and would be a matter entirely within the sound discretion of the trial court, and in such state of case, this court would rely upon the discretion of the trial judge, as to whether a violation of his order to the jury to remain together, was prejudicial to the litigants.</p>

<p>1. Carriers — Passengers—Payment of Pare — Begulation.—A railroad company has the right to prescribe a regulation by which a higher fare may be collected from passengers who pay their fare upon the train, than from those who buy tickets before boarding the train.</p> <p>2. Carriers — Passengers—Tickets—Payment of Pare. — In order to enforce a rule requiring passengers to purchase tickets before entering its train, or to pay a higher fare than that required of passengers who buy tickets, a railroad company is required to notify the traveling public of the existence of the rule. Actual notice to each passenger of the existence of the rule is not necessary; copies of the rule printed in large type, and posted in conspicuous places in the several ticket offices of the company, constitute sufficient notice to the traveling public of the existence of the rule.</p> <p>®. Carriers — Passengers—Payment of Pare — Expulsion Prom Train. —A. passenger who has not provided himself with a ticket before boarding the car, and refuses to pay the higher fare prescribed by the company’s regulation, may be expelled from the train; but as a condition precedent to this right of expulsion, an opportunity, at least reasonable, and such as the statute requires where a statute exists, must have been afforded by the carrier to the passenger, not himself in fault, to provide himself with the required ticket.</p> <p>4. Carriers — Passengers—Payment of Pare. — Under Section 784 of the Kentucky Statutes, which requires a railroad company to keep its ticket office open for the sale of tickets at least thirty minutes immediately preceding the schedule time of the departure of its passenger trains, and to post upon its bulletin board the fact that any regular passenger train is delayed for as much as thirty minutes in its arrival at a station, a railroad company which kept its ticket office open for thirty minutes immediately preceding the schedule time of the departure of a train which was delayed seven minutes in its arrival, sufficiently complied with the statute; and, a passenger who applied at the ticket office for a ticket after the expiration of the prescribed thirty minutes had elapsed, was not exempted from the rule requiring him to buy a ticket, or pay the higher fare.</p> <p>5. Carriers — Tickets—Sale of. — So long as the ticket office of a railroad company remains open for the sale of tickets, the company must serve the public by selling tickets, although the schedule time for the departure of the train may have expired.</p>

<p>1. Pleading — Defect and Objections — Arrest.—The allegation in a petition that an arrest was made by a deputy sheriff in his official capacity, is a mere legal conclusion or inference, without the facts on which it was founded, and adds nothing to the petition.</p> <p>2. Officers — When Sureties on Bond Not Liable for Wrongful Act.— Where an officer having no writ in his hands, falsely asserts that he has, and commits a trespass under such assumed authority, or where he acts without any such assumption simply as an officer, and commits a wrongful act, the sureties on his official bond are not liable unless made so by statute.</p> <p>■3. Arrest — Liability of Officer in Making — Criterion.—Without regard to the distinction between acts done by virtue of office, and acts done under color of office, the practical criterion of the liability of an officer in making an arrest, is, whether the assault by the officer was committed in the course of an attempt to serve or execute a writ or process and as a means to that end.</p> <p>4. Officers — Official Acts. — Official acts as applied to the conduct of ministerial officers, are only such as are done in the execution of some legal process, or of some positive command of the law.,</p> <p>5. Arrest — Invalid Warrant — Liability of Officer in Making Arrest.— An officer is liable where he makes an arrest under a warrant, that is invalid or void; or where the court has no jurisdiction; or where he arrests for a felony without a warrant on suspicion; or where he makes an arrest with a warrant for a breach of the peace not committed in his presence; or where he arrests not “on view” without a warrant under a city ordinance; or where he arrests the wrong party; or where he arrests the right party under a warrant in the wrong name.</p> <p>6. Arrest — Officers.—The test as to whether an officer is acting by virtue of his office is, whether he is either armed with a valid writ, or has authority to make the a’rrest without a writ, under a statute.</p> <p>7. Arrest — Liability of Sheriff For Act of Deputy. — In order to render a sheriff liable for the act of his deputy, the act of the deputy must be done by virtue of his office as deputy; and in order for the deputy’s act to have that character, it must be done in an attempt to serve or execute a writ or process, and as a means to that end, or in acting under a statute giving him the right to arrest without a writ or process; otherwise he is acting as an individual.</p>

<p>1. Witnesses — Credibility—Trial—Verdict.—The credibility of the witnesses is for the jury; the Court of Appeals will not disturb a verdict because the jury believed one set of witnesses, rather than another.</p> <p>2. Appeal and Error — Verdict.—A verdict must be palpably against the evidence, or it cannot be disturbed upon appeal.</p>

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

<p>1. Carriers — Injury to Passenger — Contributory Negligence. — A passenger wbo crosses the aisle of a standing car for the purpose of taking a seat, with knowledge that other cars about thirty feet distant are rapidly approaching for the purpose of making a coupling, is not guilty of contributory negligence as a matter of law, in view of the fact that he has a right to assume and to act on the assumption that the coupling will be made with proper care.</p> <p>2. Carriers — Injury to Passenger — Unusual and Unnecessary Violent Jerk. — In an action by a passenger for damages for personal injuries, based on an unusual, unnecessary and violent jerk of the train, evidence examined and held sufficient to take the case to the jury and sustain a verdict in his favor.</p>

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

<p>1. Railroads — Trespassers on Tracks — Duty Owing to. — The only duty a railroad company owes a trespasser on its tracks is to prevent injuring him after his peril is discovered. It is under no duty to exercise ordinary care, or any care, to discover the presence of a trespasser on the track. But if the persons in charge of the train discover that a trespasser on the track is in danger, they must then exercise ordinary care by the means at their command to save him from injury.</p> <p>2. Railroads — Trespassers on Tracks — Duty Owing to. — Although an engineer may see a person walking on the track in front of the engine at a point so far distant that he is not in any immediate danger, his presence does not put upon the engineer the duty of giving warning of the approach of the train or of taking other action in anticipation of the fact that the traveler may not leave the track. He may assume that the traveler will leave the track in time to avoid injury.</p> <p>S. Railroads — Trespassers on Tracks — Duty to. — It will not be presumed that trainmen discovered the peril of a trespasser on the track from the mere fact that the track was straight or that the enginemen were seen keeping a lookout at such a distance from the trespasser as not to put on them the duty of anticipating that he would remain on the track.</p> <p>4. Railroads — Trespassers on Tracks — Duty to. — If persons in charge of an engine are seen looking ahead at a time when the trespasser is in plain view and in such close proximity to the train as that it might be reasonably anticipated that he was not aware of its approach, and they fail to give any warning or take any steps to avoid injury, this evidence would be sufficient to take the case to the jury on the theory that after discovering the peril of the trespasser they failed to take the required care to avoid injury to him.</p> <p>5. Railroads — Trespassers on Tracks — Licensees.—A person walking on a railroad track out in the country is a trespasser and not a licensee, although the track may be used by a number of trespassers each day.</p> <p>6. Railroads — Trespassers on Tracks — Licensees.—The mere use of a railroad track by the public does not convert the users from trespassers into licensees unless this use is at a place where the public have a right to go and be, as at a public crossing and the like, or unless it is in a city or town or populous community where large numbers of people use the tracks.</p>

<p>1. Deeds — Construction, of — Life Estate — Vested Remainder. — A deed by “F” to bis son John, in tbe granting clause, conveyed the land to John “for bis life time, and at his death, then to descend to the legal heirs of his body.” In the closing paragraph the provision was that “this conveyance is to John his life time and at his death to his children.” Held, that under this deed John took a life' estate and his children then living, as well as those thereafter born, took a vested interest in remainder.</p> <p>2. Waste — By Life Tenant — Injunction to Prevent — Coal and Timber. — A life tenant of land who uses the minerals and timber on it for commercial purposes, commits waste and may be enjoined from so using them by the remainderman.</p>

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

<p>1. Principal and Surety — Necessity for Notice of Dishonor. — An accommodation maker, or surety, of a promissory note is primarily liable, and is therefore not entitled to notice of dishonor.</p> <p>2. Bills and Notes' — Negotiable Instruments Act — Notes Not Actually Negotiated — Applicability.—The Negotiable Instruments Act applies to a note that is itself negotiable, whether actually negotiated; to a holder in due course or not.</p> <p>3. Principal and Surety — Extension of Time — Notice to Surety — Release. — Under the Negotiable Instruments Act, an accommodation maker, or surety, though known to be such by the payee, is not released by an agreement between the payee and the principal obligor extending the time of payment or postponing the payee’s right to enforce the instrument, though made without the assent of the accommodation maker.</p>

<p>1. Criminal Law — Trial—Indeterminate Sentence Act. — Under the Indeterminate Sentence Act of 1914 it is prejudicial error to authorize the jury in the instructions to fix a definite term of imprisonment for defendant.</p> <p>2. Criminal Law — Indeterminate Sentence Act. — Under that act the judgment of the court must conform to the verdict of the jury.</p>

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

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

<p>Wills — Devise—Conditional Limitation Over. — Under a will devising a farm to testator’s son, with, a provision that, if the son does not live till his youngest child is sixteen years old he (testator) desires the farm shall he a home for the son’s wife, S., and children, till that time arrives, there is a devise of the fee, with a conditional limitation over; so, though the wife is dead, the son can only convey the property subject to the interest of the children; and this is true, although the son’s youngest child, who is yet under sixteen years of age, is the offspring of a second marriage and was not in being at the time the will was made.</p>

<p>Wills — Dying Declarations — When Admissible as Evidence. — It is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the dying declaration admissible as evidence. If it appears that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued an hour afterwards, the .declaration is inadmissible. On the other hand, to render such a declaration competent, it is not necessary to show that the declarant, a,t or prior to the time of making it, expressly declared he knew he was about to die, or made use of equivalent language manifesting such belief. The essential preliminary fact to be established in order to render the declaration competent, is that it was made under a consciousness of impending death; and whether this be so or not, may be determined, not only by what the declarant may say, but by his evident danger and by all the surrounding circumstances.</p>

<p>1. Intoxicating Liquors — County Unit Law. — Under section 61 of ttie Constitution the Legislature had the power to enact what is known as the “county unit law,” giving to the county the right to control and regulate the sale of liquor in all cities, towns, districts and precincts within the county.</p> <p>2. Constitutional Law — Construction—Stare Decisis. — When a construction placed by the judiciary on an administrative section of the Constitution has received the approval of the legislative as well as the executive departments of the government and of the people speaking through them, it should be adhered to as a, part of the settled and satisfactory public policy of the State.</p> <p>3. Statutes — Construction of Sections 2554 and 2560. — The act of. 1914, now sections 2554 and 2557 of the Kentucky Statutes, .did not repeal the act of 1912, now section 2560 of the Statutes. Each of these sections had its place in the scheme of regulation and neither of them should be construed to repeal the other.</p> <p>4. Statutes — Construction of 'Repealing Clause. — A repealing clause should be read and construed to harmonize with the title and body of the act and confined to the purpose of the act as expressed in. the title and the body and not be construed to extend the scope of the act beyond the purpose expressed in the title and body.</p> <p>6. Courts — Orders of County Court — Signing of. — The fact that the county judge did not sign the orders calling a local option election until after it had been held, did not affect its validity.</p> <p>6. Courts — Special Terms of — Appeals May Be Tried at. — Where an appeal from the county court was filed in the circuit court on January 9th, and summons issued returnable to the next regular . term commencing in March, the appeal could be tried at a special term called for that purpose in February. An appeal is pending from the time the record is filed, and the court has the same power to call a special term to hear and dispose of an appeal pending as it has to call a special term to hear and dispose of a case originally brought , in that court.</p>

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

<p>1. Criminal Law — Indeterminate Sentence Law — Trial.—Under the Indeterminate Sentence Law of 1914 (Ky. Stats., Sec. 1136), the verdict of the jury must fix a minimum and a maximum sentence, and the judgment must conform to the verdict.</p> <p>2. Indictment — False Statement Respecting Financial Condition. — • In an indictment under section 1213b of the Kentucky Statutes, charging the defendant with having made a false written statement in August, 1914, concerning the financial condition and ability of himself, a verdict and judgment which ignored the Indeterminate Sentence Law of 1914, and fixed the defendant’s punishment at five years in the penitentiary, were erroneous.</p> <p>3. Indictment — False Statement Respecting Financial Condition. — ■ An indictment for making a false statement concerning one’s financial condition and ability, being under a statute, should conform to the statutory terms; it should contain all the material facts and circumstances necessary to be proved upon the trial in order to convict, and the false statement should be set out so that the court can determine whether it comes within the statute, and give the defendant notice of what he is to answer.</p> <p>4. Indictment — False Statement Respecting Financial Condition.— An indictment under section 1213b of the Kentucky Statutes, charging the defendant with having made a false statement concerning his own financial condition and ability, which further showed that the alleged false statement relied upon for a conviction was not made concerning the defendant’s financial condition or ability, but was made concerning the financial condition and ability of another person, was insufficient under the statute, and a demurrer thereto should have been sustained.</p>

<p>1. Judicial Sales — Infant’s Land — Filing of Title Papers. — In an action under sub-section 3 of Section 489 of the Civil Code of Practice, to sell an infant’s land for his support and maintenance, the failure to file the title papers under which the property of the infant was held, as is required by Subsection 2 of Section 492 of the Civil Code of Practice, did not make the judgment void; it was erroneous only, and the error cannot be taken advantage of collaterally in another suit.</p> <p>2. Guardian and Ward — 'Succeeding Guardian’s Eight to Sue Former Guardian. — Where a guardian was removed by the county court and failed to make a settlement therein, although directed so to do, the succeeding guardian had the right to file an action in the circuit court against the former guardian to require a settlement and to enforce the payment of whatever amount might there be found to be due; and subsequent proceedings in the county court could not affect the prosecution of the action brought in the circuit court for a settlement.</p> <p>3. Principal and Surety — Liability of Surety — General Eule. — As a general rule, sureties upon' official bonds are not concluded by a decree or judgment against their principal unless they have had their day in court, or an opportunity to be heard in their defense; but administrators’ bonds form an exception to this general rule, and the sureties thereon in respect to their liability for the default of their principal, are classed with such sureties as covenant that their principal shall do a particular act.</p> <p>4. Principal and Surety — Liability of Surety on Guardian’s Bond When Jointly Sued. — But where a guardian and his surety were jointly sued for a settlement of the guardian’s accounts, a default judgment against the guardian did not deprive the surety of any of its valid defenses, sincei it was at all times contesting the plaintiff’s right to recover, and was bound only under the judgment fixing its own liability upon a trial of the merits.</p>

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

<p>1. Schools and School Districts — Powers of Trustees — Elections Upon Question of Bond Issue. — It is the purpose of the legislative act dealing with graded school districts to put all elections affecting graded schools under the control of the board of trustees of such schools, and the board is therefore authorized not only to call the election and appoint the election officers, but to canvass the returns and certify the result of an election held in such graded school district to determine whether there shall be a bond issue for school purposes.</p> <p>•2. Schools and School Districts — Elections.—The fact that the treasurer of a graded school district was appointed and acted as an election officer at such election did not invalidate the same.</p> <p>3. Schools and School Districts — Graded School Bond Election— When May Be Held. — It was the purpose of Section 155 of the Constitution to take all character of school elections out of the operation of the rules prescribed for and limitations placed upon all other elections; and therefore a graded school bond election held under the statute may be held upon a day other than a regular election day.</p> <p>4. Schools and School Districts — Graded School Bond Election. — It is not necessary that the order calling such an election should specify the rate of taxation to be levied by the board in the future to take care of the proposed bond issue.</p> <p>5. Schools and School Districts — Powers of School Board. — In the absence of a statutory provision a school board may do anything at a special meeting that it could at a regular meeting.</p>

<p>1. Criminal Law — 'Drunkenness as Defense or in Mitigation of Crime. —Where an- act, itself, constitutes the offense, drunkenness is no excuse for its commission, but, where, in order to constitute the offense, the act must be combined with the intent of the accused, then drunkenness may be offered as a defense, or in mitigation of the offense.</p> <p>2. Larceny — Drunkenness as Defense. — To constitute the crime of larceny, the taking of the property must be with the intent to wrongfully deprive the owner of the possession and use of it, and with the intent to convert it to the use and ownership of the accused, and it is a defense to an accusation of guilt of such crime, that the accused was, too, drunk to be capable of entertaining such intent.</p>

<p>1. Carriers — Personal Injury — Evidence—Res Gestae. — In an action for damages for personal injuries a woman passenger testified that she was jerked from a train by tbe flagman. She immediately said: “You must be in a hurry.” The flagman replied: “We are in a hurry.” She then said: “You wouldn’t treat me this way if my husband was with me; you see I am by myself with my little children and cannot help myself.” Held, that the conversation was admissible under the res gestae rule.</p> <p>2. Carriers — Evidence—Sufficiency.—In an action for damages by a woman passenger for personal injuries alleged to have resulted in a miscarriage, evidence examined and held sufficient to sustain a finding in favor of plaintiff.</p> <p>3. Carriers — Passengers—Instructions.—An instruction that it was the duty of the carrier to exercise the highest degree of care to safely carry the plaintiff while a passenger on its train mentioned in the evidence, and to allow her to alight from said train in safety, held not prejudicial in view of the fact that the real issue was whether or not the flagman pulled or jerked plaintiff from the car and this issue was properly submitted to the jury. TTTRAM H. TYE and BENJAMIN D. WARFIELD for appellant.</p>

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

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

<p>1. Children — Delinquent—Defined.—Under Subsection 1 of Section 331e of the Kentucky Statutes, a delinquent child includes any male child 17 years of age or under, and any female child 18 years of age or under, who violates any law of this State.</p> <p>2. Children — Delinquent—Jurisdiction Over. — Under Subsection 2 of Section 331e of the Kentucky Statutes, the county courts of the several counties of the State have exclusive jurisdiction of all cases coming within the terms and provisions of said Section.</p> <p>3. Children — Delinquent—Discretion of County Court. — Under Subsection 5 of Section 331e of the Kentucky Statutes, the county court may, in its discretion, in any case of a delinquent child brought before it, permit such child to be proceeded against in accordance with the criminal laws of the State; and in such case the proceedings in the county court shall be dismissed and the child transferred to the court having jurisdiction of the offense.</p> <p>á. Courts — County Court — Jurisdiction Over Delinquent Children.— Under Section 331e of the Kentucky Statutes, it lies exclusively with the county court to determine whether a juvenile offender shall be treated as a delinquent child, or prosecuted as a felon. 5. Courts — Circuit Courts — Jurisdiction Over Delinquent Children.— When a person has been indicted in the circuit court for a felony, and it is made to appear that he is a delinquent child, as defined by Subsection 1 of Section 331e of the Kentucky Statutes, it is the duty of the circuit court to dismiss the proceedings; it has no authority to transfer the child to the county court.</p>

<p>1. Constitutional Law — Local or Special Legislation — Within the Meaning of Section 59 of the Constitution Forbidding the General Assembly to Pass Local or Special Acts. — It was not intended to interfere with the legislative power to create and define new offenses and prescribe a punishment for them applicable to any person anywhere in the State who might be guilty of the offense so created and defined. When the Legislature creates an offense by a general law and provides by the general law for the punishment of any person committing this offense, the law operates equally and alike in all parts of the State and upon all persons and is not local or. special legislation.</p> <p>2. 'Statutes — Construction of — Superfluous Words May Be Stricken Out. — When the Legislature, through inadvertence or mistake, inserts useless and inappropriate words in an act that would be and is complete without them, they may be stricken from the act as surplusage and disregarded in the construction of the act.</p> <p>3. Statutes — Construction of — Striking Superfluous Words from. — The words “of grand larceny” in Subsection 35 of Section 2739 of the Kentucky Statutes may be stricken from the section.</p> <p>4. Constitutional Law — Cruel Punishment. — An act providing that any person who should unlawfully and without the consent of the owner take and operate a motor vehicle should be confined in the penitentiary for not less than two nor more than five years, did not impose a cruel punishment within the meaning of the Constitution.</p> <p>5‘. Statutes — Construction of — Meaning of Word “Unlawful.” — The word “unlawful” in the Statutes, making it an offense to “unlawfully take, drive or operate a motor vehicle without the consent of the owner” should be construed to promote the purpose of the act and confined to persons who wrongfully, illegally and purposely take and operate vehicles without the consent of the owner. A person who, under the honest mistake that he had the right to take the machine, or in good faith believed that he was the owner of it, would not be guilty of an unlawful taking within the meaning of the statute.</p> <p>6. Statutes' — Construction of — 'Meaning of Words. — Words in a statute should be construed so as to accomplish the purpose of the statute, although they might, in other connections, have a different meaning.</p>

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

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

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

<p>Contracts — Fraud—Evidence.—In an action to recover on a contract in the sale of certain talking machines, evidence examined and held insufficient to sustain a charge that defendant’s signature to the contract was obtained by fraud.</p>

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

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

<p>1. Telegraphs and Telephones. — Where a party files a message for transmission over a telegraph line, that act is a selection of the route, over which it is to he transmitted, if there is a continuous telegraphic line, from the point where it is filed to the point of destination.</p> <p>2. Telegraphs and Telephones — Failure to Deliver Message. — Where a person selects a telegraphic line over' which to have a message transmitted, and there is a continuous telegraphic line to the point of destination, the telegraph company is not excused for a failure to deliver the message, if the company undertakes to send it for the whole or a part of the route hy telephone, although the telegraph company and the telephone company may exercise ordinary care to transmit and deliver the message with diligence and dispatch.</p> <p>8.. Telegraphs and Telephones — Delivery of Message. — If a message is sent hy telegraph, and the telegraph company undertakes to send it over a part of the route hy telephone, and succeeds in delivering the message, within such a time, that the sendee does not suffer any damages for the failure to receive it with reasonable diligence and dispatch, a complaint of the sendee can not he sustained.</p> <p>,4.. Telegraphs and Telephones — Delivery of Message. — Where a telegraphic message is addressed to one person, in care of another, and the telegraph company delivers it to the person in whose pare it is sent, with reasonable diligence and dispatch, it has performed its contract.</p> <p>5. Telegraphs and Telephones. — A telegram to B. F. Smith, in care of the Consolidation Coal Co., has the same legal effect, as a telegram to the Consolidation Coal Co. for B. F. Smith.</p> <p>6. Telegraphs and Telephones — Delivery.—A telegram to one person, in care of another, makes such person the agent of the sendee, to receive such message, and not the agent of the telegraph company to transmit and deliver the message.</p> <p>7. Telegraphs and Telephones — Delivery.—A telegraphic message to a person, in the care of a corporation, makes the corporation the agent of the sendee to receive and deliver the message to him, and the telegraph company may deliver the message to the corporation in the same way it should deliver a message addressed to the corporation, and if it does so, with reasonable diligence and dispatch, it thereby fully performs its contract.</p>

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

<p>Municipal Corporations — Street Improvements — Bonds—Municipal Indebtedness — Constitutional Limit. — Where street improvement bonds, secured by lien on abutting property and by the pledge of the city’s credit, are issued by the city and accepted by the contractor in payment for the work, and payment thereof in full cannot be enforced against the abutting property, and the bonds are invalid, because they create an indebtedness in excess of the revenue and income provided for the year without a vote of the people, contrary to Section 157 of the Constitution; the difference between the amount collectible from the abutting property and the face of the bonds cannot be collected from the city on the theory that it became personally liable, because it had no power to order the improvement at the expense of the abutting property in excess of 50 per cent, of its value. The claim that the obligation upon the city is one imposed by law, does not prevent the debt limit provision of the Constitution from applying.</p>

<p>1. Master and Servant — Damages.—The mere fact that a servant re- - ceives an injury while engaged in the service of the master, does not make the master responsible for the damages.</p> <p>2. Damages — Negligence.—It is a well settled principle, that one can not recover damages, unless the negligence relied upon for the recovery is the proximate cause of the injury.</p> <p>.3. Master and Servant — Damages—Negligence.—Before an employee can recover damages from his employer, he must show that his injury was caused by some negligence of the employer, or some other servant of the employer, whos,e negligence can be imputed • to the employer.</p> <p>4. Master and Servant — Safe Place to Work. — It is the duty of the master to provide the servant a reasonably safe place in which to work, but this rule does not apply where the work the servant is performing makes the place of his work dangerous.</p>

<p>1. Bills and Notes — Action Upon Note — Merger of Into Judgment.— In a suit on a note, -where judgment is rendered, the note is merged in the judgment, and suit-may not thereafter be maintained on the note; but where a second suit is instituted on the note and personal judgment rendered thereon to which there is no exception, and from which there is no appeal the defendant cannot get the benefit of this on appeal from another judgment in the same action, subjecting her property to the payment of the note.</p> <p>2. Attachment — Levy—Lien.—Under the provisions of Section 212 of the Civil Code an attachment binds the defendant’s property in the county where it is issued, which might be seized under an execution from the time of the delivery of the order to the sheriff just as an execution would; and the lien thereby acquired may be thereafter perfected by an actual levy upon the property.</p> <p>3. Deeds — Execution of Without Delivery. — The mere execution of a deed by a grantor without delivery to the grantee or anyone for him, passes no title.</p>

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

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

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

<p>1. Municipal Corporations — Expulsion of Members. — Under Section 3486 of the Kentucky Statutes the votes of three-fourths of the members of the city council are necessary to expel a member.</p> <p>2. Officers — Usurpation of Office — Person Entitled to Office May Bring Suit for. — Under section 483 of the Civil Code, providing that if a person usurp an office, the person entitled thereto may prevent the usurpation by an ordinary action; a person who is legally entitled to an office may bring a suit for its possession against the person who is wrongfully holding it, although such person may have been elected or appointed by a body that believed it had the authority to elect or appoint him.</p>

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

<p>Deeds — Cancellation—Mental Incapacity — Undue Influence — Evidence. — In an action to set aside a deed on the ground of mental incapacity and undue influence, evidence examined- and held to sustain the finding of the chancellor denying the relief -prayed for.</p>

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

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

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

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

<p>1. Pleading. — A cause of action in favor of a defendant against a plaintiff cannot be plead or relied upon as a counter-claim, unless it arises out of tlie contract or transaction stated in the .petition as the foundation of the plaintiff’s claim, or which, is connected with the subject of the action.</p> <p>2. Pleading — Unliquidated Damages. — A cause of action in favor of a defendant against a plaintiff for unliquidated damages, cannot be plead or relied upon as a set off to plaintiff’s demand, unless . it is, also, alleged that the plaintiff is a non-resident, or insol- . vent, .or some other sufficient reason, showing. that the defendant, has not an adequate remedy by' an independent action in the ordinary way.</p> <p>8. Pleading — Answer and Counter-claim. — An answer, to be sufficient as a counter-claim or set off, must allege facts’ sufficient to constitute a good cause of action in favor of the defendant' against the plaintiff, if the pleading was a petition instead of an answer, and the defendant was the plaintiff, and the plaintiff a defendant.</p>

<p>1. Railroads — Damages—Injury to Land — Proximate Cause — Question for Jury. — In an action for damages for injury to land by diversion of a stream alleged to have been caused by a change in the channel thereof, evidence considered and held that the question whether or not the change in the channel was the proximate cause of the injury was for the jury.</p> <p>'2. Trial — Instructions—-Verbal Instructions — Error.—In an action for damages for an injury to land alleged to have- been caused by a permanent change’ in the channel of the river, a verbal instruc- ■ tion telling the jury that plaintiff could not maintain another action for damages,* was not prejudicial error, in view of the fact that the court merely stated the law and gave, to the jury information which they were entitled to have in order to reach a proper verdict.</p> <p>3. Trial — Verdict—Injury to Land — Excessive Amount. — In an action for damages for injury to land, evidence" considered and the verdict of' $200.00 held not excesáive.</p>

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

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

<p>1. Husband and Wife — Action by Wife to Recover From Estate of Husband. — Where the wife sought to recover certain rents and income, the court properly held that she had no right to demand an accounting at the hands of the husband’s administrator in the absence of a showing that he had collected or retained any of the same, and where her only allegation was that she did not know whether she had received all that was due her on account of said rents and income. The allegation amounted to nothing more than her belief or suspicion, and this is not sufficient to put her husband’s estate on the defensive.</p> <p>2. Husband and Wife — Action to Recover from Estate of Husband. —Where the wife, under a contract and divorce decree, became entitled to the income from certain real estate in which the husband only had a life estate, upon the death of the husband her interest in the income ceased, and where the consideration was only a. nominal one, and there was no fraudulent misrepresentation, the fact that she thought at the time that she was getting the estate for like would not entitle her to recover from his estate the difference between what she thought she was getting and what she actually got until his death.</p> <p>3. Contracts — Written Instruments — Action Upon. — In a suit founded upon a writing which conflicts with the averments of the pleadings, the writing must control.</p> <p>4. Damages — Deceit—False and Fraudulent Statements. — In a suit for deceit and damages therefor, it is necessary to allege and prove the false and fraudulent statements, and that defendant had a guilty knowledge of the facts at the time he misrepresented them. It is not sufficient to aver their falsity and reliance upon them as the truth.</p>

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

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

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

<p>Trial — Instructions.—The refusal of the court to give an offered instruction is not prejudicial error when the matter. contained in the offered instruction is fully covered in another instruction given.</p>

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

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

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

<p>1. Limitation of Actions — Action to Enforce Lien on Land — Effect of Order Taking Case From the Docket — Reinstatement of Case on Docket — Innocent Purchaser — Statute of Limitations. — Where an action to enforce a vendor’s lien on land was instituted September 15, 1893, allowed to remain on the docket without a submission until February 6, 1904, and was then taken from the docket under an order of the court directing that it be “filed away,” such order operated as a dismissal of the case without prejudice; and though it was, on motion of the plaintiff, reinstated on the docket February 19, 1910, as more than fifteen years intervened between the accrual of the plaintiffs’ cause of action upon the lien note sued on and the reinstatement of the case on the docket, the action was barred by the statute of limitations as to an innocent purchaser of the land for value, whose title thereto was acquired after the case was stricken from the docket and before its reinstatement thereon.</p> <p>2. Limitation of Actions — Release of Lien on Record — How to be Made. — The formal release of a lien, to be effective, must be made in the manner provided by Section 498a, Subsection 8, Kentucky Statutes; that is, it must be made on the record book in the county clerk’s office containing the instrument, and by the person who shall appear on the record to be the legal holder of the note or notes secured by the lien. But the failure to release the lien by the statutory method did not prevent the running of the statute of limitations in this case.</p>

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

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

<p>1. .Guardian and Ward — Support and Maintenance2 — Settlement.— Wliere a brother moves into the home of his widowed sister, whicli belonged to her two infant children, and gratuitously and without expectation of compensation supports and maintains them, and subsequently qualifies as their guardian, in his settlement as such he is entitled to no credit for the support and maintenance so furnished them before qualifying as their guardian.</p> <p>2. Guardian and Ward — Support and Maintenance — Settlement.—Although he had voluntarily assumed to support and maintain the infants before qualifying as their guardian, it would be inequitable to charge him with rent on their property when the rent was of less value than the expense of their support.</p> <p>3. Guardian and Ward. — But from the time he qualified as guardian he should have been charged with rent and credited by the reasonable value of their support thereafter furnished.</p> <p>4. Infants — Sale of Real Estate for Support and Maintenance — Conversion to Personalty. — The sale of real estate of infants under a judgment of court for their support and maintenance converts the real estate into personalty which may be used for the purpose for which the property was sold.</p>

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

<p>Appeal and Error — Decisions Reviewable — Amount or Value in Controversy — Sbam Pleading. — A sham plea for damages will not be considered in determining the amount in controversy upon appeal; where it is evident that the plea was inserted for the sole purpose of conferring jurisdiction upon appeal, the court will decline to entertain the appeal.</p>

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

<p>1. Contracts — Wills—Agreement Not to Contest — Consideration— 1 Validity. — An agreement by a devisee to pay an heir of the testator her distributable part of the estate if she would refrain from uniting with others in contesting the will and the will should be sustained, is neither contrary to public policy nor without consideration but is valid.</p> <p>2. Trial — Instructions—Where, in an action to recover on a promise made by a devisee to pay plaintiff her distributable share of the devised estate if she would refrain from taking part with others in contesting the will, the given instructions authorize a'recovery only in the event that there was an agreement to refrain and because of the agreement plaintiff did refrain, it was not error to refuse an offered instruction telling the jury that if plaintiff refrained on account of thinking the will should not be broken, or on account of her kind feelings for defendant, or on account of his assisting her and her family financially, and not because she was obligated by contract not to do so, they should find for the defendant.</p>

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

<p>1. Contracts — Trial.—In a suit on a written contract, the lower court erred in overruling demurrer to answer which set up contemporaneous oral contract relative to the same subject matter as a basis of counter-claim, and also erred in permitting oral testimony in support of the alleged contemporaneous oral contract.</p> <p>2. Contracts — Evidence.—Where parties have deliberately reduced, their engagements to writing in such terms as- to make it a complete contract, it is conclusively presumed that the whole engagement, and tlie extent and manner of the undertaking was reduced to writing; oral testimony of colloquium, conversations or declarations at the time when it was completed is incompetent, because it tends to substitute a different contract for the one really agreed upon.</p>

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

<p>1. Negligence — Violation of Statute. — One who sustains an injury from the violation of a statute, may recover damages, if the violation of the statute was the direct and proximate cause of the injury, whether the statute imposes a penalty for its violation or not. '</p> <p>2. Nuisance — Right of Individual to Recover for Public Nuisance.— One can not maintain an action against another for the creation or maintenance of a public nuisance on account of an injury or inconvenience, which is common to all the community alike, but may maintain an action for an injury suffered from the creation or maintenance of a public nuisance, where he has suffered some special damage or injury thereby.</p> <p>3. Damages — Duty of Person Injured to Prevent or Reduce. — One seeking the recovery of damages on account of an injury incurred, must have exercised such care as an ordinarily prudent person under like or similar circumstances would have exercised to have avoided receiving the injury.</p> <p>4. Negligence — Contributory Negligence as Bar to Recovery of Damages. — If one’s own negligence is the cause of the injury, or if his own negligence so contributes to his injury, that but for his own negligence, the injury would not have been received, he is not entitled to recover.</p> <p>5. Damages — Duty of Person Injured to Prevent or Reduce. — When one has suffered an infraction of his rights, it is his duty to act in such a way as to minimize his loss and make his damage as light as possible.</p>

<p>1. Judgment — Parties.—A judgment of a court does not bind one wbo is not before the court, and only binds parties to the suit, in which the judgment is rendered, and their privies.</p> <p>2. Adverse Possession — Boundaries.—Where one enters upon lands claiming title under a patent, deed, or title bond, and claims to the extent of his boundaries, he is in the actual possession of all of the land embraced in his patent, deed, or title bond, which is not at the time held adversely by another.</p> <p>S. Adverse Possession — Boundaries.—One residing upon a tract of land, which adjoins another tract, to which he has a patent, deed, or title bond, and claims to the extent of the boundaries of same, is in possession of the adjoining tract, if same is not in the actual adversary occupancy of another.</p> <p>4. Adverse Possession. — Two persons can not have the actual constructive or constructive possession of the same tract of land, at the same time.</p> <p>5. Adverse Possession. — One, in order to be actually possessed of a tract of land, does not have to have a person residing upon the land, or have a crop -growing upon it, if he has an enclosure upon it, and claims it under a deed, patent, or title bond, but his possession may be shown by acts which indicate an intention on his part to hold the exclusive possession of it.</p> <p>6. Vendor and Purchaser. — One who purchases land with notice that another has an equitable right to -it, takes subject to the equity.</p> <p>7. Notice. — The general doctrine is, that whatever puts a party on inquiry, amounts in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite facts by the exercise of ordinary diligence and understanding.</p> <p>8. Evidence — Written Instruments. — An ancient written document is admissible in evidence without direct proof of its execution, if it appears to be thirty years of age, is found in the proper custody, and is free from suspicion, the instrument in such state of case being said to prove itself. If it purports to convey title to land, proof of the possession of the land by the one claiming under the document during the existence of the document must precede its admission.</p>

<p>Appeal and Error — Dismissal of For Want of Jurisdiction. — Although, in an action the amount of a debt sought to he recovered of one of the defendants is as much as the amount necessary to give tlie Court of Appeals jurisdiction, where in the same action a crop of tobacco belonging to the debtor but in the possession of others, is attempted to be subjected to the demand of the plaintiff, and it is conclusively shown by all the evidence heard on the trial in the circuit court to be of less than the amount of which the Court of Appeals has jurisdiction, the latter court will not entertain an appeal from the judgment of the circuit court dismissing the action as to the parties in possession of the tobacco; but in such case will dismiss the appeal.</p>

<p>1. Schools and School Districts — Graded Common School District— Petition for — Taxpayer—Section 4464, Kentucky Statutes 1909.— A poll taxpayer is a taxpayer within the meaning of Section 4464, Kentucky Statutes, 1909, requiring the petition for the establishment of a graded common school district to be signed by “at least ten legal voters who are taxpayers.”</p> <p>2. Schools and School Districts — Graded Common School Districts — - Approval of Trustees — Evidence.—Evidence in a proceeding to establish a graded common school district considered and held that only the original common school district was affected and only the approval of the trustee of that district was necessary.</p> <p>8. Schools and School Districts — Graded Common School District— Establishment — Petition—Approval of Trustee — Section 4464, Kentucky Statutes, 1909. — Where the petition for the establishment of a graded common school district contains the following endorsement: “I, ............................, Trustee of Educational Division No. 1, Subdistrict No. 1, the boundary of which is the same as the proposed boundary of the Graded Common School District proposed to be established herein, hereby approve the proposition to establish said Graded School' District as set forth in the foregoing petition. Witness my hand this 22nd day of December, 1918” — and the trustee instead of signing at the end thereof places his signature in the blank, after the word “I,” this constitutes an approval in writing within the meaning of Section 4464, Kentucky Statutes, 1909, requiring the proposition to establish a graded common school district to be approved in writing on petition.</p> <p>4. Schools and School Districts — Graded Common School District— Description — Sufficiency of. — A description of a proposed graded common school district by farms is sufficient.</p> <p>5. Schools and School Districts — Graded Common School District— Inclusion of Territory More than 2% Miles From School House— Effect on Election. — The inclusion in the boundary of a proposed graded common school district of land more than two and one-half miles distant from the school house does not invalidate the election held to establish the district.</p> <p>6. Schools and School Districts — Graded Common School District —Establishment—Discrepancy Between County Court Order and Advertisement — Effect on Election.' — Where the County Court order calling for an election for the establishment of a proposed graded common school district fixes the amount of tax to be voted for at 50 cents, and in the advertisement of the election the words “not exceeding” are inserted before the words “Fifty Cents,” the change is immaterial and does not affect the validity of the election.</p>

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

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

<p>Negligence — Assisting Person in Peril — Attempt at Rescue. — A person who attempts to rescue one who has been put in peril by the negligence of another may maintain a cause of action for injuries sustained in attempting his rescue. But this right of action rests entirely upon the ground that the peril to which the person was exposed was caused by the negligence of the person sought to be made liable, and if the peril was not caused by his negligence, lie is not liable in damages to the person injured in attempting the rescue.</p>

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

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

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

<p>1. Pleading — Amendment After Judgment. — After a final judgment in an action, it is too late for either party, or a stranger to it, to file pleadings.</p> <p>2. Pleading — Conclusions.—Where parties in their pleadings make the hare statement that they are “heirs” to one-tenth of the estate, and do not state any other facts which in law make them “heirs,” or entitle them to share as distributees, the allegation is but a conclusion.</p> <p>3. Pleading — Presumption.—Where a writing is essential to the validity of a transactio'n, the pleading should show the fact, and if the facts alleged do not show a writing, the presumption will be that the transfer was by parol.</p>

<p>Railroads — Interurban Service — Use of Highways — Frightening Horses. — An interurban railroad having the right to erect its poles and string its wires along the right-of-way of a highway incurs no liability for the frightening of a horse, because of its placing therein, outside of the wheel tracks of the traveled part, a barrel 'containing a blower or furnace for use in connection witli its repair work.</p>

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

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

<p>1. Counties — Fiscal Courts — Treasurer—Discretion of Court. — Under Article VI, Chapter 34, Kentucky Statutes, the fiscal court is authorized to appoint a treasurer for the county, at any time, when, in Its discretion, it shall deem it necessary to have sucn officer to manage the fiscal affairs of the county.</p> <p>2. Courts — Fiscal Courts — Members of. — The county judge is a member of the fiscal court, and must be taken into consideration in determining how many shall constitute a majority of the membership ot the court.</p> <p>3. Courts — Fiscal Courts — Parol Evidence Not Competent. — The fiscal court is a court of record, and must speak by its records, and parol evidence is not competent to change an order or to supply an order of said court, in the absence of any order upon its records.</p> <p>4. Courts — Fiscal Courts — Constitution.—Article VI, Chapter 34, Kentucky Statutes, is not contrary to the provisions of the Constitution.</p>

<p>Petition for Rehearing from Jefferson Circuit Court (Chancery Branch, First Division).-</p>

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

<p>1. Railroads- — Personal Injuries — Negligence.—In an action to recover for personal injuries sustained by being struck by one of appellant’s trains at a public crossing over its spur track, where the engine was backing down a steep grade, and decedent in going upon the track had to do so with his back to the engine, held there was evidence of appellant’s negligence in failing to sound •an alarm when the engine started some 800 feet away, and in failing to keep a watchman upon the tender or at the crossing to warn people of its approach.</p> <p>2. Railroads — Negligence—Signals.—A warning that does not give the traveling public a reasonable opportunity to learn of the danger and avoid it is not a timely warning, and where no alarm was given until the engine was within 30 or 40 feet of decedent, and then sharp blasts of the whistle were sounded, it was not in time for him to act discreetly, and it was for the jury to say whether he was negligent in going upon the track under the circumstances and whether he negligently failed to get off the track after the alarm was sounded.</p> <p>3. Railroads — Instructions—Evidence.—An instruction which required the jury to believe that those in charge of the engine used all the appliances at hand to stop the engine and avoid injuring decedent after they saw him upon or about to go upon the track was not prejudicial where the evidence showed that there was no possible way to stop the engine after they saw decedent, and that no more effective appliances could have been used than were 'used.</p> <p>4. Railroads — Instructions—Evidence.—It was not error to refuse an instruction to the effect that if decedent’s hearing was impaired that he should have stopped and looked to see whether a train was approaching before going upon, the track where there was no evidence' that his power to hear things was any less than that of • the, average man.</p> <p>5. Damages — Impairment of Earning Power of Minister — Evidence.— One’s salary as a minister is not conclusive evidence of liis power to earn money, and where it is not claimed that the verdict is excessive, it was not prejudicial error for the court to refuse to admit the same, although it might properly have been admitted in connection with other facts for the jury’s consideration in determining decedent’s earning capacity.</p>

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

<p>1. Banks and Banking — Duty and Liability of Directors. — Directors of banks are under a duty to exercise ordinary care in the management and control of the affairs of the bank, and if they fail to exercise this degree of care and declare and pay dividends when the bank is insolvent, all the directors who receive the dividends so declared and paid are liable, under Sections 548 and 596, of the Kentucky Statutes, for all the debts of the bank.</p> <p>2. Banks and Banking — Duty and Liability of Directors. — Directors of banks who make loans in excess of the statutory limit fixed by Section 583, of the Kentucky Statutes, are personally liable for any part of the excess that is lost to the bank.</p>

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

<p>1. Appeal and Error — Constructive Service — Piling of Transcript. — ■ Where an appeal was granted by the Clerk of the Court of Ap* peals, and the appellees are only constructively summoned to appear to the appeal, the appellant is required to file a transcript of the entire record; if he file a transcript of only a part of the record, the appeal will be dismissed.</p> <p>2. Appeal and Error — Constructive Service — Filing of Transcript. — ■ Upon a motion to dismiss an appeal granted by the Clerk of the Court of Appeals against appellees who have been constructively summoned only, upon the ground that the appellant has filed a transcript of only a part of the record, the court will treat the certificate of the circuit court clerk stating that only a part of the record has been copied into the transcript as conclusive of that question.</p>

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

<p>1. Deeds — Construction—Location.—In determining tbe meaning of the term “locate” as used in the covenant of a deed giving the land owner the right to locate an overhead crossing over the right of way of a railroad company, we must consider the thing to be located, and its purpose.</p> <p>2. Deeds — Words—Meaning of. — To “locate” a thing means to place it; not to design or construct it.</p> <p>8. Deeds — Location of Overhead Crossing — Construction.—Where the owner of a farm through which a railroad passed had the right, under a deed to “locate” an overhead crossing or bridge over the right of way for his own use, he did not have the right to require the overhead bridge to be built across the right of way in a diagonal direction; the railroad company had the right to build tbe overhead bridge at right angles to the railroad track, and when so built it was a compliance with the covenant of the deed.</p>

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

<p>1. Depositions — Interrogatories—Notice.—If more than three days’ notice to take a deposition be required by Section 567 of the Civil Code of Practice, the party to whom the notice is given may, hy a counter notice to his adversary, require the deposition to he taken upon interrogatories.</p> <p>2. Depositions — Notice—Words—Meaning of. — In determining the length of notice required hy Section 567 of the Civil Code of Practice, the term “day” as used in that section means twenty-four hours, and not a working day.</p> <p>3. Depositions- — Exceptions.—Where the circuit court sustained an exception to a deposition, and gave the party who took it time in which to retake the deposition, he could stand upon his rights and take the chance of the correctness of his procedure; he waived none of his rights to read the original deposition, hy declining to retake the deposition.</p>

<p>Appeal and Error — Incomplete Record — Affirmance.-—In the absence from the record of the pleadings and of all the evidence with the exception of certain exhibits, it will be conclusively presumed that the omitted portions of the record support the judgment and the judgment will be affirmed.</p>

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

<p>Railroads — Accidents at Crossings — Contributory Negligence of Person Injured. — There can be no recovery for the death of a person killed by a train in an attempt to cross ahead of the train when the injured person knew of the approach thereof. But unless the evidence as to this knowledge is uncontroverted the issue of contributory negligence is for the jury.</p>

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

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

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

<p>1. Liens — Equitable Lieu. — Where an intending purchaser of a tract of land, estimated to contain about 1,200 acres, borrows from another $12,000.00 to pay for the land under a written agreement, whereby he is to mortgage to the lender all the land purchased upon receiving a deed therefor, and is to manufacture the timber into ties and lumber and sell it to the lender at certain stipulated prices, and the money is furnished and the purchase made, but the deed which the purchaser receives from his grantor fails to convey all of the land purchased and the mortgage follows the description contained in the deed, and it subsequently develops that there is a deficit of 416.9 acres in the tract of land so conveyed aiid mortgaged, and the purchaser’s assignees, to whom he has assigned for the benefit of his creditors, sue the purchaser’s grantor and recover a judgment of over $4,000.00 for the deficiency, the lender has an equitable lien on the sum so recovered after the payment of attorneys’ fees, costs and expenses incident to the recovery, which is superior to claims of general creditors.</p> <p>2. Mortgages — Amount of Indebtedness. — An intending purchaser of a tract of land borrowed $12,000.00 to pay for it under a written agreement by which he w'as to mortgage the land purchased and manufacture the timber thereon into ties and lumber and sell same to the lender at stipulated prices. On receiving a deed for the land the purchaser mortgaged it to the lender. The mortgage was conditioned not only for the payment of the debt, but for the performance of the timber contract. The purchaser, in consideration of certain stock therein, conveyed the land to a corporation which assumed the mortgage and the execution of the contract. Afterwards the purchaser made an assignment. Subsequently the corporation conveyed the land and all the personal property used in the manufacture of the lumber to the original lender and mortgagee, the conveyance providing that the mortgage was not to be affected. The mortgagee was to carry out the contract, pay certain labor claims, the expenses of manufacture, sell all the assets, pay himself the mortgage debt and turn over the balance to the corporation. Held, that the amount due under the mortgage was the balance due the mortgagee after the completion of the contract and not the difference between the face of the mortgage debt and the value of the assets at the time of the conveyance.</p> <p>3. Mortgages — Amount of Indebtedness Secured. — Where an in-' tending purchaser of a tract of land borrows money to pay therefor under a written agreement to mortgage to the lender the land purchased and to manufacture the timber thereon and sell same to the mortgagee at certain stipulated prices, which sums were to be credited on the mortgage debt, and under the contract the expense of manufacture is to be borne by the mortgagor, the mortgagee had the right to deduct from the sum so credited certain sums advanced to the mortgagor to meet his pay roll, the difference being the indebtedness secured by the mortgage; and where if this had been done the mortgage would have covered the difference betwen the face of the debt and the actual credits thereon, the fact that the books were kept so as to credit the mortgagor with the entire amount of ties and lumber furnished and charge him with sums advanced for pay roll purposes does not change the character of the transaction.</p> <p>4. Mortgages. — In adjusting the accounts under the circumstances above set out, it was not error to charge the mortgagor with certain lien notes on certain saw mills which the mortgagee discharged, since the mortgagee had to use the mills to complete the lumber contract, and it was cheaper to pay the lien notes than to purchase new mills, and after the completion of the contract the mills were sold and the entire proceeds credited to the mortgagor.</p>

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

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

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

<p>Contracts — Fraud—Rescission—Damages—Evidence.—In an action for the 'rescission of a contract for the exchange of lands on the ground of fraud, evidence examined and held not sufficiently strong and convincing to sustain the charge of fraud; and that a recovery of damages was properly denied on this ground alone.</p>

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

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

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

<p>Bills and Notes — Action Against Endorser — Evidence.—In an action against appellee as endorser of certain promissory notes, wliere the defense interposed was that hy fraud or mistake the words “without recourse” were omitted from the endorsement, the evidence examined and held that appellant was an innocent holder for value, and had a right to rely upon the open endorsement of appellee.</p>

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

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

<p>Appeal from Jefferson Cirenit Court. (Chancery Branch, No. 2).</p>

<p>1. Continuance — Absence of Co-defendant. — Reliance on the presence of a co-defendant at the trial is not sufficient ground for a continuance when the circumstances are such as to apprise a person of ordinary prudence of the improbability of his being present, and due diligence is not used to procure his testimony.</p> <p>2. Corporations — Notes—Want of Authority to Execute — Money Had and Received. — Where a bank lends money to a corporation on a note executed by the corporation by its secretary, and the secretary is without authority to execute notes but has authority to make deposits and draw checks thereon, and the proceeds of the note are deposited to the corporation’s credit with the knowledge of the secretary, and the sum so deposited is subsequently drawn out on checks of the corporation drawn by the secretary, the corporation is liable-for money had and received,, it being immaterial, so far as the bank is concerned, how the sums so drawn out on checks of the corporation were subsequently applied.</p>

<p>jt. Contracts — Options—Acceptance.—An option for the sale of a tract of land consists of two elements; one is an oiler to sell the land, which must be accepted before it becomes a contract, and the other is an agreement to give the optionee a certain time within which to determine whether he will accept the offer to sell, and this is a completed contract.</p> <p>2. Contracts — Options.—The contract by which the optionor gives to the optionee a certain time within which to decide whether to accept the offer to sell, must be supported by a sufficient consideration, and if it is not supported by a consideration, or if the consideration is merely nominal, the optionor, before acceptance of the offer to sell, may revoke it and withdraw his offer to sell, by notice to the optionee, after which there is nothing for the optionee to accept.</p> <p>3. Contracts — Options—Consideration.—Although the option given is without consideration, yet if the optionee, within the time specified, and before its withdrawal by the optionor, exercises the option and accepts the proposition to sell, in such a way, that performance of the conditions may be required of him, it becomes an en-forcible contract.</p> <p>4. Contracts — Options.—The exercise of an option to sell land and acceptance of the offer of sale, must be a substantial compliance with all the conditions of the offer.</p>

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

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

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

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

<p>1. Wills — Support of Testator’s Widow Charge On Entire Estate Devised — When Real Estate May Be Sold. — Where by his will a testator bequeathed to his widow a third of his personal estate absolutely and devised the residue of the estate, both real and personal, at her death to his adopted daughter, but providing that the support of the widow for life should be a charge thereon and empowered the executor to hold the estate in trust for the support of the widow and, if the income was not sufficient for her support, to sell so much of the estate, real or personal, as might be necessary for that purpose, the adopted daughter took a defeasible fee in remander to the estate devised her; and where, after the death of the adopted daughter, an action was brought by the testator’s widow and executor against the infant son of the adopted daughter and his guardian, in which it was made to appear that there was no income from the estate and that the personal property (belonging thereto, consisting of stock in a manufacturing corporation, was unsalable, and asking a sale of the real estate devised, for the support of the widow, she was properly adjudged entitled to the relief prayed.</p> <p>2. Wills — Devise of Real Estate Jointly Owned With Another — Partition of After Death of Testator — Effect of. — Although the real estate devised by the testator was jointly owned by him and another and was after his death partitioned and his interest therein conveyed by deed to his adopted daughter, instead of to his executor in trust for the purposes indicated by the testator’s will, these facts did not relieve tlie real estate of the charge imposed upon it by the will for the support of the testator’s widow. Moreover, the deed to the adopted daughter by its terms only invested her with the same character of title to the real estate as was devised her by the will.</p>

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

<p>1. Master and Servant — Commanding Inexperienced Servant Into Place of Danger. — The master is responsible in damages for injuries sustained by a youthful and inexperienced servant who was injured in executing an order which the master knew or ought to have known involved danger.</p> <p>2. Master and Servant — Assumption of the Risk — Obeying Command of Master. — Where a servant is injured while and by reason of his executing an order of the master, he did not assume the risk unless the danger was appreciated by him and was such that a person of ordinary pru&ence would have refused to encounter it.</p> <p>3. Master and Servant — Fellow Servant — Ordinary Negligence of a Superior Servant. — The rule that for personal injuries not resulting in death, recovery may be had for the negligence of a superior servant only when his negligence is gross, is not applicable when the superior servant is negligent in respect of those non-delegable duties from the due performance of which the master cannot relieve himself.</p> <p>4. Trial- — -Verdict Disregarding Instructions.- — Where the verdict is contrary ’ to the instructions of the court, a new trial will be granted, be the instructions right or wrong.</p>

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

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

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

<p>Insurance — Accident—Liability of Insurer Where Insured Dies from tbe Infection of Wounds Intentionally Inflicted by Another Person. — Where the immediate cause of the death of the insured was gangrene, caused by infection that set up after the infliction of intentional wounds, not in themselves necessarily fatal, and the evidence does not show that the gangrene was produced by some independent cause that set up after the wounds were inflicted, the liability, of the company is limited, as stipulated in the policy, to one-fifth of the principal sum named in the policy.</p>

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

<p>1. Trial — Continuance—When Refusal of Not Error — -Taking Deposition of Adverse Party, as if Under Cross-Examination — Rule as to Diligence. — While Section 606, Subsection 8, Civil Code, gives to either party to an action, the right to take the deposition of the adverse party, as if under cross-examination, in doing so he is held to the same rules of diligence that would apply to the taking of the deposition of a person not a party to the action; and where a defendant, whose answer was filed December 1, 1913, desired to take the plaintiff’s -deposition, but did not attempt to do so until January 27, 1914, only five days before the beginning of the term of the court at which the case stood for trial, the refusal of the trial court to grant it a continuance on the ground that it was prevented from preparing for trial at that term by the failure of plaintiff to submit to the taking of his deposition, is not a reversible error.</p> <p>2. Trial — Burden of Proof — Error of Court in Ruling it To Be on Wrong Party — When Not Ground for Reversal. — A judgment will not be reversed on appeal because of an error of the trial court in ruling that the burden of proof was on the party in whose favor the jury returned a verdict; if, notwithstanding such error, the party receiving the verdict was entitled under the pleadings and on the evidence to a peremptory instruction directing a verdict for him, and such instruction was asked by him at the conclusion of the evidence and erroneously refused by the court.</p> <p>S. Insurance- — Action on Policy for Loss of Building — Amount Recoverable When Loss Is Total — When Over-Valuation of Property by Insured Will Not Prevent a Recovery on the Policy. — In an action for loss under a policy of insurance on a building destroyed by fire, where the loss is total, Section 700, Kentucky Statutes, provides that the amount recoverable shall be the sum named in and fixed by the policy, unless fraud was practiced by the insured “in fixing the value of the property,” and the insurer was “misled thereby.” And though in such action the defense interposed by the answer of the insurer was that the insured practiced fraud in fixing the value of the property, which misled the insurer; and that the property was burned in pursuance of a conspiracy between the insured and another;' where it conclusively appeared from the evidence, that, notwithstanding the insured’s over-valuation of the property, the agent of the insurer was not misled thereby, but himself thoroughly inspected the' property and from such inspection and his recommendation the policy was issued to the insured; and there was an absence of evidence conducing to prove that the property was burned by the insured or in pursuance of a conspiracy between him and another, the insured was entitled to a peremptory instruction directing a verdict in his behalf for the amount of the policy.</p>

<p>1. Negligence — Proximate 'Cause — Damages.—One, who claims damages because of injuries which he alleges that he received, because of the negligence of another, must prove some negligent act in the other, which was the proximate cause of the injury.</p> <p>2. Negligence — Damages.—Where one seeks damages because of injuries incurred because of the negligence of another, and negligence may from the proof be imputed to such other, yet, if the one complaining was, also, negligent, and his negligence so contributed to his injury, that but for his own negligence, the negligence of the other would have been harmless, he can not recover.</p> <p>3. Railroads — Crossings—Stop, Look and Listen.- — While one proposing to cross a railroad track at a street crossing, is not required to stop, look, and listen for the approach of a train, yet he must not refuse to use his faculties of sight and hearing, and is required to use all reasonable precautions for his own safety.</p> <p>4. Railroads — Negligence—Question for Jury. — Where one is injured by a train upon a' railroad track, at a street crossing, and it appears that proper signals of the approach of the train were not given, or an effective lookout not maintained, or the train was operated at a dangerous rate of speed, it is a question for the jury as to whether or not the injured one was guilty of contributory negligence.</p>

<p>1. Divorce — Property Rights in Action B’or. — In adjusting the property rights between a husband and wife in a divorce action it is inequitable to restore to the husband property conveyed to the wife which was paid for out of the joint property of the husband and wife where it appears that the wife still has custody of infant children which she must rear and support when it was the duty of the husband tt> do so, and particularly when it appears that the property was conveyed to the wife by her brothers for a nominal consideration and that the husband years before confirmed her title thereto.</p> <p>2. Husband and Wife — Use of Wife’s Property by Husband — Improvements. — Where the husband has had the use of the wife’s property and the value thereof was greater than the improvements placed thereon by him he is entitled to no compensation for the improvements.</p> <p>3. Divorce — Conveyance to Wife in Fraud of Creditors. — A husband who caused to be conveyed to his wife the title to property paid for by him, with the purpose of defrauding his creditors is not entitled to have the same restored to him in a judgment for divorce.</p>

<p>Taxation — City Waterworks. System — Exemption.—Where a waterworks system is owned and operated by a city for tbe benefit of its inhabitants and the net income therefrom is applied solely to public purposes, it is exempt from taxation under Constitution, Section 170, providing that public property used for public purposes shall be exempt from taxation, although the municipality also furnishes water to neighboring towns and their inhabitants in large numbers.</p>

<p>1. Corporations — Organization Tax. — Section 4225, Kentucky Statutes, imposing an organization tax on corporations is not retroactive. The tax is imposed on the capital stock of corporations organized after its enactment and upon the increase of stock "issues made after its enactment by all corporations.</p> <p>2. Corporations — Organization Tax. — A corporation created by a special act of the legislature, or by Chapter 56 of the General Statutes, does not subject its original stock issues to the organization tax and become a new corporation as if organized under Chapter 32 of the Kentucky Statutes by formally accepting the provisions of the Constitution and rendering itself amenable thereto. It remained a corporation organized under its old charter.</p> <p>3. Corporations — Organization Tax. — A corporation organized under special act of the legislature, or under the provisions of Chapter 56 of the General Statutes, subjects its original stock issues to the organization tax whenever it amends its charter or files corporation papers which so radically and materially change its original scope, rights and powers as to amount to a dissolution of the old corporation and the creation of a new one.</p> <p>•4. Railroads — Change of Corporate Domicile — Not New Corporation— Organization Tax.- — Where a railroad company, created by special act of the legislature, by amendments, changed its corporate domicile within this State and increased its capital stock with the right to classify the increased issue into preferred and common shares, it was not such a radical or material change in its scope, rights and powers as to make it a new corporation and subject its original capitalization to the organization tax.</p> <p>5. Railroads — -Maintenance of Telegraph and Telephone Lines. — Organization Tax. — A railroad company, created by special act of the legislature, with power to do a railroad business and become a common carrier for hire, had the power, as an incident to its business, of maintaining and operating telegraph and telephone lines along its right-of-way for aiding in the movement and operation of its trains. Where such corporation, by amendments, increased its capital stock and acquired the right also to transmit telephone and telegraph messages for hire and become a common carrier of such, it did not so change the scope, rights and powers of the original corporation as to create a new corporation and thereby subject its original stock issue to the organization tax.</p>

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

<p>1. Sales — Rescission of Contract — Time for Rescission and Laches— Pleading. — Where rescission of a contract of sale is sought by the buyer, upon the ground of fraud inducing same, there must be a prompt election upon discovery of the fraud upon which the claim of right to rescind is founded, and the petition should negative laches. •</p> <p>% Corporations — Transfer of Shares — Rescission—Pleading.—Where the rescission of a contract for the sale of shares of a corporation is sought by the buyer for fraud inducing the purchase thereof, the petition should allege the manner and extent of the plaintiff’s injury resulting from the fraud.</p>

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