Volume 165 — Kentucky Reports

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

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

<p>1. Judgment — Res Judicata. — The rule of res judicata means, that ■ where a question or a fact is once litigated and determined by the judgment of a court of competent jurisdiction, no fact or question that was therein litigated, or could have been litigated, can thereafter be relitigated by the same parties, or their privies.</p> <p>2. Judgment — Res Judicata. — A judgment is binding between the parties thereto and their privies, whether it be right or wrong; in either event, the rule of res judicata applies.</p> <p>3. Judgment — Conclusiveness.—Where a court judicially considers - and adjudicates the question of its jurisdiction, and decides that the facts exist which are ne'cessary to give it jurisdiction of the case, the finding is conclusive, and cannot be controverted in a ' collateral proceeding.</p> <p>4. Judgment — Against Counties — Scope.—A judgment against a county or its legal representatives in a matter of general interest to all the people of the county, is binding not only on the official representatives of the county, but on all of its citizens, though they were not made parties defendant by name.</p> <p>5. Statutes — Construction—Delivery of County Bonds in Aid of Railroad. — The Act of 1873, Gen. Sts. (1881), p. 843, requiring, as a condition precedent to the delivery of county bonds in aid of a railroad company, that the person to whom such bonds are to be delivered shall give a bond with security conditioned that said county bonds so issued and delivered shall be faithfully and honestly applied to the object for which the same were originally subscribed, and for which said bonds were issued, has no application to a case where the bonds were deliverable only after the completion of the railroad.</p> <p>6. Statutes — Act in Aid of Railroad Construction. — So much of the Act of 1873, Gen. Sts. (1881), p. 843, as required a railroad company which received county bonds to aid it in building a railroad, to furnish the county court on or before the 1st day of January in each year after the construction of the railroad, a balance sheet showing receipts and disbursements of said ■ county for the sub-' scription, and how the money was disbursed during the preceding year, cannot affect the validity of the bonds which were delivered ■ after the railroad was completed, and pursuant to a judgment declaring the railroad had been completed, and that the bonds in payment thereof should be delivered.</p> <p>1. Judgment — Ex parte Order of Fiscal Court- — Delivery of Bonds in Aid of Railroad. — An ex parte order of the fiscal court of the ’ county directing the trustee who. held in escrow the bonds of- the ! county voted to aid in building a railroad in. the-county, not to ' • deliver the bonds until the further order of the fiscal court,, was . ineffectual as against the Subsequent judgment-of a circuit court which passed upon the validity of the bonds and required their delivery. ■-</p> <p>8. Fraud — Action for Relief. — Under Section 2519 of the Ky. Sts., an action for relief upon the ground of fraud or-mistake cannot be brought ten years after the perpetration of the fraud.</p> <p>9. Counties — Subscription by County Court for Shares of — What Necessary to Validity. — There can be no valid and enforceable sub. scription for shares of a railroad company by the county court on behalf of the county without the power to levy and collect taxes to pay the subscription; otherwise the subscription would be worthless.</p>

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

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

<p>1. Master and Servant — Injury to Servant From Change of Conditions — Negligence of Superior — Assumption of Risk. — Where a servant, at work for the master in loading steel rails upon a flat car, was injured by the slipping of a skid, caused by the negli-' gence of his superior in the master’s service in requiring another servant, during the progress of the work, to change the position of the skid from a reasonably safe place on the flat car to a . place thereon which did not afford it a reasonably safe support, the servant injured did not assume the risk resulting from such change in the position of the skid, if he did not hear the order from his superior to the other servant to change the position of the skid, or understand that it had reference to the skid by which - he was injured, and his injuries resulted before he knew of, or ■ Could by the use of ordinary care, have discovered, the danger • arising from the change in the position of the skid. In such case ■the questions, whether the superior was guilty of negligence in ' causing the change in the position of the skid, and whether the injuries to the servant were caused by such negligence, or by the latter’s contributory negligence, were for the decision of the jury.</p> <p>2. Master and Servant — Injury to . Servant — When Negligence of Superior Must Be Gross To Authorize Recovery Against Master— Instructions — Error In. — It is a well'established rule in this jurisdiction, that in an action brought by a servant for injuries received through the negligence of an agent of the master, who is his (the servant’s) superior in authority, and death does not result . from such injuries, there can be no recovery unless the negligence of the-superior be gross; and instructions which do not so advise the jury, will, in the event of a verdict for the injured servant, compel a reversal of the judgment entered thereon.</p>

<p>r Specific Performance — Action for Enforcement of Vendor’s Liéf&wkey; Venu,e of — Demurrer to. Jurisdiction. — Section 62, Civil Code,, requires' that an action to enforce a vendor’s lien upon land be brought in the county in which the land, or some part thereof, lies; and when the petition fails to sufficiently allege this essential jurisdictional fact, the overruling by the court of a special demurrer to the petition, objecting to its jurisdiction, constitutes reversible error. The fact that in the same action the specific performance of a contract for the sale of the land was asked, did not authorize the institution of the action in a county other than that in which the land, or some part thereof, is situated.</p>

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

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

<p>1. Criminal Law — Fraudulent Sale of Mortgaged Property. — In a prosecution’ under Section 1358 of the Kentucky Statutes for fraudulently selling mortgaged personal property with the intent to prevent the enforcement of the lien thereon, the intent and purpose to defraud the mortgagee or the public constitutes the offense, which must he gathered from the attendant facts and circumstances.</p> <p>2. Criminal Law — Fraudulent Sale of Mortgaged Property. — dn a prosecution under Section 1358 ,of the Kentucky Statutes for fraudulently selling mortgaged personal property with the intent to prevent the enforcement of the lien thereon, the question of the. .defendant’s intent is one of fact to he determined hy the jury.</p>

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

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

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

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

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

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

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

<p>1. Negligence — Public Crossing — Care in Use of — Injury to Traveler —Action For. — Ordinarily, the giving of the signals mentioned in Section 700, Kentucky Statutes, in the manner therein indicated, is all that is required of a train or electric car in approaching a public crossing in the country, but where the crossing is especially dangerous, those in charge of the train or car and persons using the crossing, must exercise increased care, commensurate with the danger; and in an action for the death of, .or an injury to the person or property of a traveler struck by a train or car at such crossing, the speed of the train or car may be taken into consideration with other facts shown by the evidence, In determining whether there was negligence on the part of the servants of the railroad company in charge of the train or car; and also in determining whether there was contributory negligence on the part of the person injured, or whose property was injured; and whether there was such negligence on the part of either; are questions that should be submitted under proper instructions to the jury.</p> <p>2. Trial — Peremptory Instruction — When Not Authorized. — A peremptory instruction directing a verdict for the defendant should not be given, unless it conclusively appears that, admitting the plaintiff’s evidence to be true, and every inference fairly deducible therefrom, he has failed to support his cause of action.</p> <p>3. Damages — When Verdict For Will Not Be Disturbed on Complaint That Damages Are Excessive. — The Court of Appeals cannot act as a jury in determining what amount of damages should be awarded in a given case; and it is only when the verdict is so grossly or glaringly excessive as to appear at first blush to have resulted from passion or prejudice that it can interfere. The power should be sparingly exercised and only in extreme cases.</p>

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

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

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

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

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

<p>1. Wills — Execution—Attestation—Evidence—Witnesses.—Where an attesting witness, because of failing eyesight, is unable to identify a will, the will may be identified and his attestation provea by other attesting witnesses who were present at the execution of the will.</p> <p>2. Wills — Execution—Attestation—Evidence—Sufficiency.—In a will contest, evidence considered and held sufficient to show that the will was properly executed and attested.</p> <p>3. Wills — Contest—Undue Influence — Evidence—Peremptory Instruction. — In a will contest, evidence considered and held insufficient to show undue influence.</p>

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

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

<p>1. Easements — Permissive Use of — Burden of Proof. — Where a pass-way has been uninterruptedly enjoyed for more than fifteen years over the land of another by an adjoining landowner, the ownér of the land over which the passway runs, in undertaking to close the passway, assumes the' burden of proving that the úse of it • was- merely 'Permissive.</p> <p>2. Easements — Permission.—The mere fact that the landowner never gaye, and the users never asked for, .permission to use the pass-way, is not of itself sufficient to overcome the presumption in favor of the users arising from their continued use of the pass- . way.</p>

<p>Appeal from1 Jefferson Circuit Court (Chancery Branch, Second. Division).</p>

<p>1. Master and Servant — Personal Injuries — Mines and Mining — Contributory Negligence — Assumption of Risk — Instructions.—Though general instructions on contributory negligence and assumed risk are given, it is error to refuse an offered instruction grouping facts constituting contributory negligence or assumed risk, where such an instruction is necessary to present defendant’s side of the case, and without such an instruction the jury might conclude that the facts relied on did not constitute contributory negligence or assumed risk.</p> <p>2. Master and Servant — Mines and Mining — Instructions—Error.—In an action by a miner to recover damages for personal injuries, caused by falling slate, it was error to refuse an offered instruction, presenting the defense of his failure of duty to sound the. . roof and take down the slate if he found it loose, where this defense was pleaded and there was evidence tending to show that the conditions were such that it was not his duty to prop but to sound the roof and take down the slate if he found it loose..</p> <p>S. Master and Servant — Mines—Section 2739b Kentucky Statutes (1909). — Though Section ,2739b Kentucky Statutes (1909) imposes , on a mine owner the duty of furnishing, props and caps only after the miner has selected and marked the same, and any custom of the mine with reference to requesting the props and caps contrary to the statute is void, yet, if a mine owner fails to supply props and caps at a place in the mine, or within a reasonable distance therefrom, so that they can be conveniently reached by the miner, a mere request of the miner to furnish props and caps will be sufficient to impose on the mine owner the duty of furnishing. them.</p>

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

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

<p>1. Contracts — Reformation.—Where a contract, as written, is the re- • suit of a' mutual mistake of the parties, and does not express their true agreement, it will be reformed and enforced.</p> <p>2. Insurance — Parol Evidence. — Parol evidence is admissible to correct the mistake in a policy, of insurance.</p> <p>3. Insurance — When Policy Effective. — Where a property owner applied for-a policy for one year’s insurance which was not to become effective until the policy was delivered and the premium was paid, the year began to run upon the delivery of the policy and the payment of the premium..</p>

<p>Banks and Banking — Insolvency and Dissolution — Priority in Payment of Depositors. — A master commissioner and receiver of a circuit court, who in obedience to Section 412, Kentucky Statutes, deposits the funds held by him as such officer, in a bank designated as a place for the deposit of such money, by an order of court as authorized by Section 411, Kentucky Statutes, is not entitled to priority in the distribution of the bank’s assets when it goes into liquidation because of insolvency.</p>

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

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

<p>1. Municipal Corporations — Streets—Dedication and Acceptance of.— Although a street may have been dedicated to the public use and used by the general public for many years, this use does not constitute an acceptance by the city, as the city has the option of accepting or not accepting a street dedicated to public use.</p> <p>2. Municipal Corporations — Streets—Acceptance of. — The methods by which a municipality may accept land dedicated to public use are of great variety, and acceptance may be manifested by acts and conduct indicating control or regulation of the dedicated place.</p> <p>3. Municipal Corporations — Streets — Acceptance of — Statutory-Method Not Exclusive. — Although Section 3094 of .the Kentucky Statutes provides that when a street has been dedicated to the public use it may be accepted by an ordinance, this method is not exclusive and the city may accept the street by undertaking to control or improve it, or by directing the construction of á sewer in it.</p> <p>4. Municipal Corporations — Sewers—Mandatory Requirement of Statute in Respect to Construction of. — Section- 3105 of the Kentucky Statutes provides that an ordinance for the construction of ■ a sewer shall not be passed until a resolution declaring the construction to be a necessity and “setting out in general terms the property subject to the payment of the same” shall have been passed. Under this statute it was a jurisdictional prerequisite to the letting of a contract for the construction of a sewer at the expense of abutting owners that the resolution should describe in a general way the property to be charged with the cost of construction, and a resolution providing for the construction of a sewer “on Lexington Avenue from a point near Maxwell Street to connect with the Southern main sewer,” was not sufficient to charge property owners on “Adams Street and College Place,” over which the sewer was built on its course from Lexington Avenue to the southern main sewer, with the cost of construction.</p> <p>5. Municipal Corporations — Streets—Sewers—Errors in Proceedings of Council or Prosecution of Work — Effect of. — Section 3105 of the Kentucky Statutes, providing that “no error in the proceedings of the council shall affect the validity of the assessment for sewer improvement” applies to some error or irregularity that does, not go to the extent of being a substantial violation of a mandatory, statutory provision.</p> <p>C. Municipal Corporations — Estoppel of Property Owner to Contest Validity of Improvement Tax. — The property owner is not estopped to contest the validity of a void tax.</p> <p>7. Municipal Corporations — Street Improvements — Effect of Failure to Observe Jurisdictional Requirements. — Where an ordinance or . resolution providing for , the construction of an improvement is lacking in some feature necessary to confer jurisdiction, this insufficiency renders the entire proceedings that follow the enactment'of the ordinance void, and the city cannot charge the property - owner with the cost of the improvement.</p>

<p>1. Trial — Law of the Case. — Where, on a retrial of a case in the lower court, after appeal to this court, the evidence was substantially the same as on the-first trial, and the jury were instructed as directed by the decision of this court, that is the law of the case, binding alike upon this and the trial court.</p> <p>2. Pleading — Amendment.—Under Secton 134, Civil Code, the court may, at any time, in furtherance of justice, and on such terms as may be proper, cause or permit a pleading or proceeding to be amended: When issues have been joined, the propriety of permitting an amendment is brought in question hy an objection, to its filing, and this is true, although it is made up of different paragraphs, some of which may present a valid defense. The objection goes to each paragraph, and the court, in its discretion, may permit defense by one paragraph and reject the others.</p> <p>3. Pleading — Amendment-—Shipments of Live Stock. — The provision in a contract for an interstate shipment of live stock requiring that the shipper give five days’ notice of any loss or damage to the stock is subject to waiver, and where after nearly three years from the shipment, protracted litigation, one trial, and much cost, defendant offered to plead by way of amendment, want of notice in bar of the action, the court properly refused to permit the same to be filed. -.</p> <p>4. Pleading — Amendment—Appeal and Error. — Although the court should have permitted ■ defendant to file its amendment setting up stress of weather as a defense, where evidence was heard and 1 the jury instructed as though a timely written plea had been filed, its substantial rights were not prejudiced, and it is noi entitled to a reversal upon that score. . ‘ ' 1 ,</p> <p>■5. Pleading. — Another paragraph of appellant’s answer plead'limitation .of, liability to the .declared"value of-the: stock:, v. Appellants substantial rights were not prejudiced by the failure to allow this plea, where it appears that the recovery was substantially within the limited liability.</p> <p>6. Appeal and Error. — Considering the amount in controversy and the number of trials, and the expense incurred, this court will not direct a reversal, although it appears that perhaps appellee recovered $13.80 in excess of the liability as limited by the contract of shipment.</p>

<p>1. Libel and Slander — Bill of Particulars. — In an action for slander, where the petition fails to specify the name of any person in whose presence the alleged slanderous publications were made, the trial court may, on motion of defendant, require a bill of particulars specifying the name of some person. . If, however, the petition names one person in whose presence the slanderous words were uttered and published, it is error'to require the plaintiff to specify the names of other persons.</p> <p>2. Libel and Slander — Petition—Bill of Particulars — Failure to Comply With Order — Dismissal of Petition. — Error.—Where,'in an action for slander, several alleged publications are relied on, and, in some instances, the petition fails to state the name of any person in whose presence the publications were made but, in other instances, specified the name of one person, the petition is sufficient in the latter instances and it is error to dismiss the entire petition on the failure of plaintiff to comply with an order requiring a bill of particulars specifying the names of persons in whose presence the publications were made.</p>

<p>1. Criminal Law — -Motion in Arrest of Judgment — Ground For. — “A motion in arrest of judgment is an application on the part of the defendant, that no judgment be rendered upon a verdict against him, or on a plea of guilty.” Criminal Code, Section 275. “The only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.” Criminal Code, Section 276.</p> <p>2. Criminal Law — Defective Indictment — Effect of Failure to Demur —When Defect Not Ground far Arrest of Judgment. — Although the alleged offense may be defectively stated in the indictment so as to render it bad on demurrer, still, if, considering the facts stated in the indictment to be true, a public offense has been committed by the defendant, within the jurisdiction of the court, a motion'in arrest of judgment will not avail; the defect is waived by failure to demur.</p>

<p>11 Improvements — Life Estates — Remainders.—Where a life tenant makes improvements on the land, such as fencing and erecting buildings, it will be presumed that he did so for his own. benefit, and he can not charge the land, nor the remainderman, with any part of their cost.</p> <p>2. Trusts — Investment of Trust Funds. — Where one creates a trust by an instrument of writing, and designates in what character of property or securities the trust fund shall be invested, the trustee must follow the instructions literally, unless no such an investment can be made, or supervening circumstances render such an investment unsafe.</p> <p>3. Trusts — Investment of Trust Funds. — The chancellor will not direct trust funds to be invested, contrary to the directions of the instrument creating the trust, unless the investment can not be made, or circumstances become so changed, that it would be unsafe to so invest the funds.</p>

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

<p>1.' Highways — Establishment of Road. — There being -no judgment oE ■the county court establishing-a road,-overseers who' were opening same under-an appointment of the county court were acting without authority of law.</p> <p>2.i .Highways — When Judgment Establishing Void. — A judgment of a county court establishing a road before process has been issued ■ , against land owners, along the route, as required by statute, is void.</p> <p>3. Courts — Jurisdiction.—As to a court having general jurisdiction, the presumption is, in the absence of a showing to 'the contrary, ' that it "had jurisdiction to enter a judgment it-has entered; but no such presumption attaches to' the judgments iof'courts of limited jurisdiction. In.such courts the jurisdictional facts must affirmatively. appear.</p>

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

<p>Trusts — Agreement .to Hold Land for Use of Another and to Re- •' ! convey — Termination by Release or Waiver. — Conceding that the evidence in this case shows the creation of a parol trust enforcible 'in .law, • such an abandonment and surrender of the rights of the cestui • que trust is shown as estops him from .their present enforcement. ,.</p>

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

<p>i:.' Brokers — OWner Completing Negotiation- Initiated bjr Broker ■- '■ liable ■' for-1 Commissions.- — -Where the. dWner-’Of a idrim.-etaplojife'd a broker to find a purchaser therefor, at $7,975 net, and agreeing that if he himself sold the farm during the life of the contract he would pay the broker $500, and the broker found a prospective purchaser, with whom the owner entered into direct negotiations resulting in a sale at $7,975 during-the life of the contract, the owner was liable for the five hundred dollars, so agreed to be paid.</p> <p>2.. Brokers^Right of Broker to Compensation. Where Owner Con- - / eludes a Sale On .Terms Other Than Those Broker Authorized .to Negotiate. — Where the owner negotiates a ..sale of his land with a purchaser brought to him by the broker, upon terms different ■ from those which the broker was authorized to offer, the broker is not deprived of his compensation.</p>

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

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

<p>Adverse Possession — Pasturing of Stock. — The mere pasturing of live stock on uninclosed land is not sufficient to constitute adverse possession.</p>

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

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

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

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

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

<p>1. Parent and Child — When Father Entitled to Custody of. — Under sections 2016 and 2033 of the Kentucky Statutes, the father of an infant, whose mother is dead, is entitled to the custody of his infant child.</p> <p>■2. Parent and Child. — One parent has no right to give or will their infant child to another person, so as to deprive the other parent of the rights of parentage.</p> <p>■3. Parent and Child — Guardian and Ward. — Under section 2032 of the Kentucky Statutes, the statutory guardian has the superior yight to the possession, care and management of his ward’s estate; but, under section 2016 of the Kentucky Statutes, the parents have the right, superior to all others, to the custody, nurture and education of their infant children.</p> <p>4. Parent and Child — Estate of Infant — Guardian and Ward. — If, for any reason, it should become necessary to confide an infant’s estate to a guardian, and the custody, nurture and education of the infant to another, it may be done under section 2016 of the Kentucky Statutes, thus preserving to the parents their superior right to the custody of their infant children.</p>

<p>Intoxicating Liquors — Prosecutions—Sufficiency of Evidence of Unlawful Sale. — The evidence in this case examined and held sufficient to authorize the submission of the case to the jury. While tlie proof of agency is not direct, there is sufficient, circumstantial evidence upon which to rest an inference that the hoy who sold the whiskey did so as agent for the accused; and it is one of the functions of the jury to draw inferences.</p>

<p>3. Ranks and Banking — Criminal Law — Indictment.—When an indictment against the cashier of a bank for making a false entry with the intention of cheating the bank contains the name of the party charged, the offense charged, the county in which it was ■ committed, and a statement of the acts' constituting the offense, in ■ ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment, the indictment will be sufficient, although it may be phrased in inapt words, or the sentences be ungrammatically expressed, or the arrangement of the matter not orderly.</p> <p>2. Criminal Law — Bill of Particulars. — When the indictment, although sufficient in form and substance so describes the transaction as that the court in the exercise of a sound discretion may think the accused should have more detailed information, he may direct a bill of particulars to be filed.</p> <p>3. Banks and Banking — Criminal Law — Indictment Under Section 1186 of the Kentucky Statutes for Making False Entry. — Where the cashier of a bank was indicted under Section 1186, of the Kentucky Statutes for making a false entry, it was necessary that the Commonwealth should show that the entry was made, that it was false, and that it was made with the intention of cheating and defrauding the bank.</p> <p>4. Banks and Banking — Criminal Law — Indictment for Making False Entry — Evidence of Other Fraudulent Transactions. — On the trial of a bank cashier for making a false entry on the books of the bank, it is competent, for the purpose of showing the intent with which the entry under investigation was made, to show other false entries and fraudulent transactions committed by the cashier in the conduct of the affairs of the bank.</p>

<p>Appeal and Error — Insufficient Record. — Where the record filed ,in this court does not contain the exhibits or evidence upon which the lower court acted, the judgment will he affirmed.</p>

<p>Taxation — Proceeding to Assess Omitted Property. — Where defendant had not been served with process in an action by a revenue agent in the Jefferson County Court to collect taxes on omitted property and, after July 1st, 1912, more than two terms of the co.urt passed without the plaintiff asking for alias process or taking any progressive step in the case, the court properly dismissed the action for lack of diligence in its prosecution, where the revenue agent failed to show that the defendant was a nonresident or that he absented himself from home, or tried in any way to avoid service of summons or obstruct the litigation.</p>

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

<p>"Wills — Contest—Evidence—Peremptory Instruction. — In a will contest, evidence of undue influence considered and held insufficient to take the case to tlie jury.</p>

<p>1. Statutes — Construction—Section 51 Constitution. — If all the • provisions of an act relate to the same subject, are naturally connected with, and are not foreign to the subject expressed in the title, it is sufficient, under the requirements of Section 51, of the Constitution.</p> <p>2. Constitutional Law. — The Constitution prohibits the taking of private property for any other than a public use, or the collection of taxes for any other than a public purpose.</p> <p>■3. (Drains — Eminent Domain. — The taking of lands for the construction of drains, where the construction will result in a public benefit, promote the public health, and is conducive to the general welfare of the community in which the drains are located, and 'the assessing of the lands benefited for the costs of construction and keeping'the drains in repair, is a proper and lawful exercise . of the power of eminent domain, and the inherent taxing power of the State.</p> <p>4. Drains — Assessment of Land for Construction of. — The principle underlying the right to assess the lands benefited for the purpose of construction of levees, ditches, and drains, and keeping same in repair, is that benefits are received from such construction and maintenance, and the costs must be paid by the ones receiving the benefits, equal to the costs.</p> <p>5. Drains — Assessment of Land for Construction of. — The assessment of lands within a drainage district, for the costs of the construction of the levees, ditches, and drains, is a species of taxation, but such assessments are not taxes, within the meaning of Sections 157 and 158, of the Constitution.</p> <p>6. Taxation — Street Improvements — Drains.—The taxes, the, levying and collection of which are controlled and regulated by Sections 157 and 158, of the Constitution, are the regular levies of taxes for ordinary governmental purposes, upon all the property in counties, towns, and taxing districts, according to its value, and do not embrace special assessments for street improvements, and in drainage districts for the construction of ditches and drains.</p> <p>7. Statutes — Chapter 132, Acts 1912 — Construction.—Chapter 132, Session Acts 1912, is not violative of Section 242, of the Constitution, as it does not authorize the taking of private property for public use, without just compensation made before the taking, and does not deprive the land owner of an appeal from a preliminary assessment of damages made by the board of viewers, nor the right to have such assessment made by a jury.</p> <p>8. Constitutional Law — Eminent Domain — Section 13, Constitution.— A law, which authorizes the taking of private property for public use, without first making compensation to the owner, is violative of Section 13, of the Constitution.</p> <p>9. Drains — Chapter 132, Acts 1912. — Although under Session Act, 1912, Chapter 132, it is provided that the compensation for the lands taken to construct levees, ditches, and drains, and widening channels of creeks, must be paid by the drainage commissioners, when funds shall come into their hands, it does not authorize them to take the lands of any one, before the compensation is made, and where the funds are provided for to make such compensation, there is no reason to hold the act void, because it does not specifically provide, that the compensation must be paid before the land is taken.</p> <p>10. Eminent Domain — Compensation—Sections 13 and 242 Constitution. — Under Sections 13 and 242, of the Constitution, where private property is taken for public use, the compensation must be paid before the property is taken, but where a corporation is authorized to take, injure, or destroy private property for public use, and the property is injured or destroyed for public use, it may be done after the compensation has been secured, and before its payment.</p> <p>11. Statutes — Construction oi Chapter 132, Acts of 1912. — Session. Acts, 1912, Chapter 132, is not void, because it does not provide that the assessments levied for the improvements shall not exceed the benefits, as a fair construction of the act is that assessments can-not go beyond the benefits.</p> <p>12. Statutes — Construction of Chapter 132 of Acts of 1912 — Drains.—■ Under Session Acts, 1912, Chapter 132, the board of drainage commissioners are hot performing judicial functions, when performing their duties, as their acts are administrative and not judicial, and the act is not void, as being in conflict with Section 109, of the Constitution.</p> <p>13. Drains — Assessment by Commissioners. — When the board of drainage commissioners makes the assessments upon the lands, in accordance with the ratio of assessments approved by the county court, it is not exercising a judicial function, but it is an exercise of the taxing power.</p> <p>14. Constitutional Law — Taxation.—The State has inherent power to levy taxes for public purposes, and this power the legislature, may, under proper restrictions, delegate to councils and trustees of towns, and cities, trustees of school districts, and the administrative officers of other taxing districts, designated in the authority granting the power.</p> <p>15. Drains — Construction—Constitutional Law. — To keep drains, ditches, and levees in repair, is as much a public use, as the original construction, and there is no constitutional objection to delegating the power to make assessments for this purpose, and to supervise the ditches, drains, and levees, to the board of drainage commissioners, as the authority must be invested in an instrumentality of government somewhere.</p> <p>16. Drains — Chapter 132 of Acts 1912 — Construction.—Under Session Acts, 1912, Chapter 132, all the constitutional guarantees of the citizen are preserved to him, until after the confirmation of the final report of the viewers, and its reference to the board of drainage commissioners, but the act provides no remedy for the citizen after that time, and wherein Sections 32 and 49, of the Act, undertakes to deprive him of all remedy against the actions of the board of drainage commissioners, after that time, they are invalid, as depriving the citizen of the equal protection of the laws, and denying to him a remedy, in due course of law, for a wrong done to him, and vesting the drainage board with arbitrary power over his property, as provided against by Sections 14 and 2 of the State Constitution, and Article XIV., of the Federal Constitution.</p> <p>17. Taxation — Assessment—Spoliation.—An assessment, which is greater in amount than the value of the property, upon which it is laid, is a spoliation, and an unconstitutional appropriation of property.</p>

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

<p>Appeal and Error — Harmless Error — Instructions—Punitive Damages. — A judgment will not be reversed for error in giving an instruction on punitive damages, where it is clear from the evidence and the size of the verdict that punitive damages were not allowed.</p>

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

<p>¡L. Intoxicating Liquors — Local Option — County Unit Law. — It was Competent for the legislature, under Section 61 of the Constitution, to enact what is known as the “County Unit Law,’’, whereby the county is given the right to control and regulate the, sale of liquor in all cities, towns, districts and precincts within the county.</p> <p>2. Intoxicating Liquors — Statutes—Construction of Sections 2554 and 2560, Kentucky Statutes. — The Act of 1914, now Sections 2554 and 2557, Kentucky Statutes, did not repeal the Act of 1912, now Section 2560 Kentucky Statutes. As each of these sections has its place in the scheme of regulation and they are not in conflict, neither of them should be construed to repeal the other.</p> <p>,■3. Intoxicating Liquors — County Unit Law — Contest of -Election Held Under. — The validity of a local option election held under, the county unit law was not affected by the failure of the petition.or petitions for the calling of the election to state the postoffice addresses or voting precincts of the petitioners, there being no requirement of the statute that such particularity shall be observed; nor was the validity of the election affected by the fact that the question in the form submitted to the voters contained in capital letters the name of the county in which the election was held; the question as a whole being in the form required 'by the statute.</p>

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

<p>Contracts — Novation—Evidence.—A general contractor contracted with, the hospital commission to furnish all the labor and material for the construction of a hospital, with the exception of face brick, which the commission agreed to furnish at certain prices. The commission accepted the bid of another contractor for the brick, The general contractor sued the commission for damages for failure to deliver the brick promptly. The brick contractor sued for a balance due for brick. The commission defended on the ground that the brick contract had been assumed by the general contractor with the consent of the brick contractor and that this constituted a novation. Evidence considered and held sufficient to sustain the defense.</p>

<p>1. Elections — Issual of Bonds for Road Purposes. — Under the Act of 1914 authorizing the submission to the voters of a county the question whether the fiscal court should issue county bonds for road and bridge purposes, it was not necessary that the petition for the election should lie over from one term of the county court to another term, before the court could call the election.</p> <p>2. Elections — Mistake in Preparing Ballots — Correction by Clerk.— Where the ballots prepared by the county clerk for use in a road bond election, by a mistake of the clerk improperly stated the question to be voted upon, and the mistake was discovered after the ballots had been delivered to the election officers in time to have the mistake corrected, the clerk properly printed new ballots and substituted them in place of the defective ballots.</p> <p>3. Elections — Deficiency of Ballots — When Clerk May Supply. — Where the deficiency in the ballots is due to the inadequacy of the law, the clerk is without power to correct them; but, where the deficiency is due to the act of an individual, either through inadvertence or fraud, the clerk may supply the deficiency in order that the election may properly proceed.</p>

<p>1. Intoxicating Liquors — Election Forbidding Sale of — Appeal.—• The local option law of 1914 (Ky. Stats., Ed. 1915, Sec. 2557), changed the pre-existing law in so far as it allowed a liquor license granted pending an appeal from a judgment which sustained an election forbidding the sale of liquor to continue throughout the year, although the judgment sustaining the election .should be affirmed previous to the expiration of the year.</p> <p>2. Intoxicating Liquors — Refusal to Renew License. — Where a liquor license expired pending an appeal from a judgment of the circuit court which sustained an election prohibiting the sale of liquor in a city of the fourth class, the action of the town council in refusing to renew the license will not be disturbed.</p>

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

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

<p>1. Larceny — Instructions.—Where the undisputed evidence shows the value of the stolen property to be in excess of twenty dollars, the court is not required to instruct on petty larceny.</p> <p>2. Criminal Law — Verdict—Indeterminate Sentence. — A verdict fixing defendant’s punishment at not less than one year nor more than one year in the penitentiary, does not fix an indefinite sentence within the purview of the Indeterminate Sentence Law, Kentucky Statutes, Section 1136.</p> <p>3. Criminal Law — Indeterminate Sentence Law — Instructions.—A form of instruction for offenses punished by an indeterminate sentence is herein indicated.</p>

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

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

<p>Appeal and Error. — In a personal ipjury, damage suit, where the jury is properly instructed and the récord is othérwise free from substantial error, a judgment for tine defendant will not be disturbed.</p>

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

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

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

<p>1. Deeds — Conveyance by Infirm Person. — The law looks with suspicion upon the transfers of property by persons mentally or physically infirm, to those having custody of them.</p> <p>2. Fraud — Burden of Proof. — Ordinarily, the burden of proving actual fraud is on the party alleging it; but where fraud, from the fiduciary or confidential relation of the- parties, is charged, the burden is on the person against whom the complaint is made, to show the fairness of the transaction.</p> <p>3. Judgment — Finding of Fact by Chancellor. — Where the evidence is conflicting and the court is not convinced that the substantial rights of the appellant have been prejudiced, or where it merely has a doubt as to the correctness of the judgment, the finding of fact by the chancellor will not be disturbed.</p>

<p>1. Guaranty — Extent of Liability. — One who guarantees to the purchaser of lots, conveyed to the purchaser by the, guarantor, that he shall receive in actual cash from the sale of said lots within two years from that date the sum of $6,600, is, where the purchaser elects to keep the lots and recover the difference in the value thereof and the amount of the guaranty, liable only for the difference between the amount of the guaranty and . the highest market price of the lots at any time during the guaranteed period.</p> <p>2. Guaranty — Evidence—Recovery.—Where the guaranty covered the two years from October, 1911, to October, 1913, and the evidence showed the value of the lots in October, 1911, in October, 1912, and in October, 1913, and at all times between February 1912 and October, 1913, to be less than the amount guaranteed, it will authorize a recovery on the guaranty.</p> <p>3. Evidence — Burden of Proof. — Where in an action by an assignee for creditors it is alleged that the defendant' has in his possession the proceeds of the sale of property belonging to the assigned estate, and the defendant in his answer admits he has such proceeds, and sets up a state of ease which authorizes him to hold and apply same to a debt owing him by the assignor, ' the burden of proof is on the defendant.</p>

<p>T. Indictment and Information — Carnal Knowledge. — An indictment under the provisions of Section 1155 of the Kentucky Statutes, which charges that the defendant did willfully and feloniously have carnal knowledge of a female under sixteen years of age, is not fatal on demurrer because of its failure to allege in the language of the statute that he unlawfully had such carnal knowledge.</p> <p>2. Criminal Law — Carnal Knowledge. — Evidence examined and found to be insufficient to support the verdict that the prosecuting witness was under sixteen years of age at the time of the carnal knowledge.</p> <p>3. Criminal Law — Trial—Character and Reputation of Defendant— Admonition. — Where a defendant introduces witnesses to show his good character, the Commonwealth may upon cross-examination, for the purpose of testing the knowledge of the witness as to the defendant’s reputation, ask him as to other offenses with which defendant has been charged; but the court should, when such Questions are propounded and such evidence introduced, always admonish the jury of the purpose for which it is admitted.</p>

<p>1. Municipal Corporations — Due Process of Law — Liens—Streets.— The hearing which a taxpayer has in court when a lien is sought to. be enforced upon his property for the cost of street improvement is all that is necessary to constitute “due process of law.”</p> <p>2. Municipal Corporations — Apportionment Warrant — Streets^—Discretion: — :It is wholly discretionary ■'with; the authorities! of a city as to the manner of the improvement of a, public street therein; and if the city in the exercise of this discretion provides for the improvement in such way as to violate its contract, and the property owners are thereby damaged, the latter may not, after the improvement has been made and they have stood by and instituted no legal proceedings, defeat the enforcement of the apportionment warrants, but will be left to their action at law for damages.</p>

<p>1. Criminal Law — Continuance—Discretion of Court. — An application for a continuance in a criminal cause is a matter addressed to the sound discretion’ of the trial court, and the action of the court -will not be interfered ■ with, unless it is shown that the ■ court abused its discretion- in the matter.</p> <p>2. . Criminal Law — Continuance—Absence of Counsel. — The absence of one or more attorneys for a defendant in a criminal cause is not a sufficient ground for a continuance, unless it is made clearly to appear, that the defendant could not have a fair trial . without the presence of such attorney or' attorneys. -</p> <p>3. ' Criminal Law — Continuance.—When a defendant in a criminal cause requests a continuance, it is his duty to show to the court, in a proper way, the grounds upon which he asks- the continuance, and if he fails to do this, and takes his .chances, he can not thereafter, when he loses, be heard to complain of his motion for a continuance being refused. .</p>

<p>1. Evidence — Damages-—Action for Personal Injuries. — Where one is. sued for a personal injury, the declarations of an agent of the defendant, made after the time of the transaction, in which the injuries were sustained, and not under such circumstances as to constitute a part of the res gestae, are not competent evidence against the defendant.</p> <p>2. Evidence — Damages—Action for Personal Injuries. — The declarations of a mine superintendent, as to the incompetency and unfitness of an employe, made before an injury is sustained, which ; is alleged to have been caused by the incompetency of such employe, is competent evidence against the master, as showing that the master had knowledge of the incompetency of the employe, but declarations made by such superintendent upon such subject, after the injury is sustained, are not competent, as the ground upon which declarations of the superintendent are admissible, at all, is that he is the agent of the master, and his knowledge is imputed to the master, but he is not an agent for the purpose of- making admissions damaging to the mastet, after the transaction in which the injury is sustained.</p> <p>3. Evidence — Res Gestae. — Where an injury is sustained by an employe, and some one goes to a telephone' and calls the superintendent of the mines, and informs him of the occurrence, a declaration of the superintendent made at- that time, he not being present at the time and place of the transaction, and not one of the actors in it, is not a part of the res gestae.</p>

<p>Wills — Contest—Election—Estoppel.—A father having a wife and one son, devised certain property to his wife, with remainder to his son’s children. Other property he devised to his son. The son opposed the prohate of the will. The will was probated. Afterwards the son brought suit for the construction of the will. He also purchased certain personal property at the executor’s sale. Later on he borrowed from his children a portion of the estate which they received under the will, for the purpose of rebuilding the residence on his farm, which was destroyed by fire. He then appealed from the order of probate and attacked the will on the ground of mental incapacity and undue influence. Held, that his conduct amounted to election to take under the will and to estop him from attacking its validity.</p>

<p>■1. Divorce — Alimony—Appeal—Effect.—While this court has no revisory power over the judgment of divorce, we may review the facts of the case for' the purpose of determining the propriety of the- chancellor’s action in awarding alimony. •</p> <p>2. ' Divorce — Alimony—Sufficiency of Evidence. — In • an- action for divorce and alimony, evidence examined and held that the divorce was' improperly granted and the alimony improperly allowed.</p>

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

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

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

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

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

<p>1. Contracts — Construction Work — Sub-contractor—Work Not Specifically Mentioned Must Be Performed By, If of the Character Included in the General Description Contained m Contract: — A subcontractor, who by written contract undertakes' to perform for a principal contractor, all steam-shovel work preparatory to the double-tracking of a railroad company’s line for a given distance, cannot excuse its failure to perform a part of such work on the ground that it was not specifically mentioned in the contract,' where such work was undoubtedly steam-shovel work, all of which character of work the contract required the sub-contractor to perform.</p> <p>2. Contracts — Failure of Contractor to Promptly Pay Sub-contractor for Work — When It Will Not Excuse Failure of Sub-contractor , . to Perform Part of the Work It Contracted to Do — Damages Sus- ■ tained by Contractor from Such Failure of Sub-contractor — When Recoverable. — The failure of a sub-contractor to perform part of the work required of it by its contract with the principal contractor,, cannot be excused upon the ground of the failure of the latter to pay it for other work done under the contract, where it was made to appear from the evidence that the contractor was delayed in obtaining the payments from the railroad company upon the monthly estimates under his contract with it, because of the sub-contractor’s delay in performing the work required of it. And when the contractor was put to increased expense or otherwise sustained a loss by reason of the failure of the sub-contractor to fully .perform the work for the railroad company it undertook to perform, the contractor was properly permitted to recover such damages from the sub-contractor as he thereby, sustained, and to have same credited on the amount due the sub-contractor for such work as it had actually done, and for which it had not been paid by the contractor.</p>

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

<p>1. Appeal and Error — Rejected Pleading — How Made Part of Record'. —A rejected pleading will not be considered on appeal unless made part of the record by order of court, or by inclusion in the bill of exceptions. When the former method is adopted,, the rejection of the pleading must be shown by an endorsement thereon signed by the trial judge, and it must then be referred to in an order making it part of the record. However, if the pleading be included at length in the bill of exceptions, the certificate of the trial judge sufficiently identifies it.</p> <p>2. Pleading — Sufficiency of Petition. — The petition set out herein'is held bad on demurrer for uncertainty.</p>

<p>Insurance — Accident Insurance — Suicide Clause. — The'- policy of insurance provided that the “Association sha}l not heritable for • the payment of any sum' whatsoever if such injury be sustained at a time when the member- is: (1) insane; (2) not in the present, full possession and normal exercise of all his faculities.” The insured killed himself at a time when he was so insane as not to be able to understand the nature or quality of the act he was committing. Held, that the association was not liable on the contract of insurance.</p>

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

<p>Appeal from Jefferson Circuit Court (Criminal Division).</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, No. 1).</p>

<p>Elections — Primary Elections — County in Which. Nomination Papers Must Be Filed. — Under subsection 7 of Section 1550 of the Kentucky Statutes, the nomination papers of all candidates, including circuit judges, to be voted for by the electors of one county, or any part thereof, except members of Congress, must be filed with the county clerk of the county. Nomination papers of members of Congress, as well as of all officers to be voted for by electors of more than one county must be filed with the Secretary of State.</p>

<p>1. Telegraphs and Telephones — Private Owner of — May Obtain Right of Way for By Continuous, Adverse User of Fifteen Years. — Where the owner of a private telephone line has for as much as fifteen years enjoyed the continuous and adverse use of the ground occupied by the poles and lines over the lands of others, he acquires a prescriptive right thereto- of which he cannot be deprived by a railroad company, which acquires title to and builds an additional track upon a part of the land occupied by his poles and lines, after such prescriptive right has become perfected; and in such case the owner of the telephone line may maintain an action for damages against the railroad company for the partial destruction by it of his poles and line.</p> <p>2. Telegraphs and Telephones — Damages for Obstruction of Telephone Poles and Line — Action for — Measure of Damages. — In an action brought by the owner of a telephone line to recover damages for its destruction in part by a railroad company, if the jury find it practicable to rebuild the telephone line where it was injured or destroyed, the measure of damages is the reasonable cost to the owner of replacing the line in the condition it was in before the injury, at the same place or approximately the same place, and such further sum as will reasonably compensate him for the loss, if any, of the value of the use to him of the telephone from the date such use was stopped by the destruction of its poles or lines until such time as the line could by reasonable diligence and dispatch be so rebuilt as -to be restored to use. If, however, the jury should find that it would be impracticable to rebuild the line at the same place, or approximately the same place, where it was destroyed by the defendant, the measure of damages, if any, in that event would be the reasonable market value, if any, of the telephone line from the plaintiff’s residence to its termination at the time of the destruction of its use by the acts, if any. of the defendant complained of.</p>

<p>1. New Trial — Petition for — Affidavit Not Necessary. — When a new trial on account of newly discovered evidence is sought by a petition under Section 344 of the Civil Code, it is not necessary that the petition should be accompanied by affidavits. If the petition states good grounds for a new trial and an answer is filed, the parties may take the evidence either by depositions or by witnesses examined in court.</p> <p>2. New Trial — Under Section 340 of the Code — Newly Discovered Evidence. — If a new trial for newly discovered evidence is sought by motion under Section 340 of the Code and within the time allowed by Section 342, then, as provided in Section 343, the grounds for the new trial must be supported by affidavit.</p> <p>3. New Trial — Newly Discovered Evidence. — Where surgeons were unable, on account of conditions that developed during the operation; to complete an eporation for goitre, and were afterwards sued for malpractice and a judgment obtained against them,. a new trial should have been granted when it was developed by the newly discovered evidence that a cancerous condition of the goitre prevented a successful operation, and this condition was not known to or discoverable by the surgeons who performed the operation.</p>

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

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

<p>1. Criminal Law — Sweating—Confession—Evidence.—The provision of the anti-sweating act that no confession obtained by means of sweating shall be admitted as evidence in the courts of this State does not apply to statements made by a defendant while in custody wherein he expressly denies his guilt and undertakes to explain the charge against him.</p> <p>2. Criminal Law — Failure of Defendant to Testify. — Where a defendant on trial in a criminal case does not testify in his own behalf, the reference in argument by the attorney for the Commonwealth to the fact that certain evidence adduced was not contradicted, is not violative of the provision in Section 223 of the Criminal Code that the failure of a defendant to testify in his own behalf shall not be commented upon or allowed to create any presumption against him.</p> <p>3. Criminal Law — Failure to Use Word “Feloniously” in Instruction. —Although- the word “feloniously” is used in the statute under which a defendant is charged, it is not reversible error if the court in the instructions fails to use that word.</p>

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

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

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

<p>1. Contracts — Sale of Standing Timbér — Branding.—The title to standing timber passes as between the parties with the execution of a written conveyance, but to affect the interests of creditors or innocent purchasers, it is necessary that it be branded.</p> <p>2. Contracts — Sale of Standing Timber — Branding.—Under Section 1409, Kentucky Statutes, with reference to branding of timber, the purchaser of the timber or owner of the brand, and the seller should act jointly in placing the brand. If timber sold be of a certain kind or dimension, neither party, to the exclusion or prejudice of the other, can arbitrarily designate the timber by branding.</p> <p>3. Contracts — Sale of Timber — Waiver—Estoppel.—Either party to a written contract may orally waive stipulations in it, particularly when such stipulations are outside of the statute of frauds, and where a party to a written contract for the sale of timber which ' provided that the same should be branded within two years from the date of sale, agreed that the same need not be branded, he not only waived the requirement to brand within that time, but the same amounted to an estoppel, for he would not be permitted to lull the purchaser to sleep with an assurance that he need not brand the timber and then deny the right after the time had expired in which, under the writing, they might have branded it.</p> <p>4. Contracts — Want of Authority — Pleading—Appeal.—Where one of the appellants has been exercising and assuming authority to act for his co-appellants by making contracts with various parties about the land in question, and denying certain rights to the appellees, and his conduct, although known by the other appellants, had never been questioned and no want of authority was plead, it is too late to raise that question on appeal. '</p>

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

<p>1. Criminal Law — Homicide—Evidence—Sufficiency.—On a trial for homicide, evidence considered and held sufficient to sustain a conviction of murder.</p> <p>2. Witnesses — Leading Witnesses — Reversal.—A judgment of conviction will not be reversed on the ground that the Commonwealth’s Attorney led the witnesses for the Commonwealth, where there was no objection by the defendant or where the evidence was not material and the Commonwealth’s Attorney was merely recapitulating what the witness had already testified to.</p> <p>3. Criminal Law — Trial—Continuance—Error.—It was not error to refuse a continuance on the ground of absent witnesses, where the trial did not take place at the indictment term and the affidavit was read as the depositions of such witnesses, and other witnesses testified to the same facts which it is claimed the absent witnesses would have testified to.</p> <p>4. Criminal Law — Instructions.—Where, on a trial for homicide, the court instructs the jury, as to one of the defendants, that he being a deaf mute he could not be convicted, unless the jury believed from all the evidence, beyond a reasonable doubt, that at the time mentioned in the evidence he was of sound mind, had sufficient reason to know what he was doing, and to know right from wrong, and had sufficient will power to 'govern his actions, it was not error to give an instruction telling the jury that if such defendant was of a feeble mind they should find him guilty of the lesser, offense of voluntary manslaughter.</p> <p>.'5. Criminal Law — Deaf Mute — -Incapacity for Crime. — The fact that one is a deaf mute does not render him incapable of committing a crime. It is simply a circumstance to be considered in connection with the other evidence on the question.</p>

<p>1. Negligence — Contributory Negligence — When A Question of Law.— • The rule- is that contributory negligence is ordinarily a question for the jury; but where from the uncontroverted facts but one .reasonable Inference may be drawn the court will pass upon it as a matter of law.</p> <p>;2. . Railroads. — Defective Appliances — Liability to 'Employees of Shipper. — A railroad which furnishes to a coal company a defective car knowing that it will be operated by the servants of the coal company is liable to a servant of the coal company for injuries resulting from the defective condition of the car, if the coal comipkny exercised ordinary care to discover the defect and failed to fin’d it and the railroad company knew or by the exercise of ordinary care could have known thereof. Hence in an action against a; railroad by a servant of the coal company for injuries so resulting, the servant must prove as a basis for recovery from the railroad company, that the coal company exercised ordinary care to discover the defect and failed to find it.</p>

<p>1. Railroads — Action for Death Of Employe — Pleading&wkey;Wkere in an action by the personal representative of a deceased employe of a railroad company for damages, the petition is based wholly-.upon the idea that the decedent at the time .of his injury was engaged, in intrastate commerce, the plaintiff will not be required to set forth in terms in his pleading whether he was proceeding under the State Law or the Federal Act.</p> <p>2. Railroads — Intrastate'' Commerce. — Wlíere a switch crew at the time of an injury to a fireman on a switch engine' was engaged in switching an- intrastate car from one part of the yard to another, but expected shortly to switch an interstate car from • one part of the yard to another, and was at the time engaged, in, switching the intrastate car so that it might ultimately get at, so as to switch to another track the interstate -car, they were engaged in intrastate 'commerce.</p> <p>3. Railroads — Test As To Whether Engaged In Interstate or Intrastate Commerce. — The true test whether an employe is''at a x'articular'time engaged in intrastate or interstate commerce, is what character of commerce was he actually engaged'in at the'.time of his injury, and not whether he. was engaged at that time in une kind of commerce as a preliminary to the engagement.in another kind. . . • .</p>

<p>1. Criminal Law — Homicide—Evidence—Sufficiency.—On a trial for homicide, evidence considered and held sufficient to sustain a conviction.</p> <p>2. Criminal Law- — New-'Trial—Disqualification of Juror. — Evidence held to sustain :a finding- that two jurors were not disqualified for service on account of having expressed opinions hostile to the accused, and the refusal of the trial court to grant a new trial on that ground.. ■</p>

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

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

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

<p>Telegraphs and Telephones — Mental Anguish — Damages.—If the sendee of a delayed death telegram had ample time to attend the funeral after he received the telegram, he has no claim for damages against the telegraph company for mental anguish caused by his failure to attend the funeral.</p>

<p>1. Railroads — Crossing Track by Electric Road — Constitutional Law. —Section 216 Constitution requiring railway company to allow its track to be crossed by track of another company applies to electric as well as steam railways.</p> <p>:2. Railroads — Crossing Track by Another Road — Contract to Cross Track. — Where the railways enter into a contract relative to such crossing, the reciprocal duties and obligations therein prescribed amount to consideration sufficient to support the contract, although a grant to cross was required by law.</p> <p>■3. Railroads — Contract by Electric Road to Cross Track — Regulation. — By the contract the electric street car company was to string and maintain the trolley wire, but the railroad reserved the right to remove it if the electric company failed to properly maintain the wire. To remove the wire in such case the railroad should exercise care and prudence to prevent injury to the public and minimize the damage to the electric company.</p> <p>4. Railroads — Injury from Sagging Trolley Wire Over Track — Contribution. — Where the electric company negligently permitted the trolley wire to sag low over the track, and the servants of the railroad broke the wire by running a train into it and injured one Haden, when the railroad’s servants knew, or in the exercise of ordinary care could have known, that the wire was sagged low and that the train could not pass under, and where both companies were sued jointly by Haden and held liable in separate sums on account of their joint and concurring negligence, they are joint tort feasors, and neither is entitled to contribution from the other.</p> <p>5. Railroads — Street Railroads — Concurring Negligence. — In the Haden case the instructions required the jury to believe the electric company negligently suffered the wire to sag low in order to find against that company, and in order to find against the steam road they were required to believe its servants knew, or by the exercise of ordinary care could have known, that it was sagged low. Where, under such instructions, the jury found against each company, their finding is conclusive between them in a suit by one against the other for contribution. Such finding establishes their -joint and concurring negligence as the proximate cause of the accident.</p> <p>6. Railroads — Joint Tort Feasors.' — Contribution.—The fact that under the contract it was the duty of the electric company to maintain the wire, and that the railroad, therefore, had a right to rely upon the electric company performing its contract, does not take the case out of the rule of non-contribution between joint tort fea'sors, where it has been established, and adjudged that the railroad. knew or ought to have known the wire was sagged low.</p>

<p>Nuisance — Streets—Obstruction of. — When a street or public way has been dedicated or set apart for public use, no person has the-right to obstruct any part of it, and if he does, any one owning property abutting on the street or way, or having the right to enjoy the use of the street or way, may maintain an action against the person making the obstruction to require him to remove it.</p>

<p>1.' Carriers — Shipment of Stock — Burden on Carrier to Excuse Delay — Where live stock are delivered to a carrier for shipment and are not accompanied by the owner while in course of transportation, the burden of proof is on the carrier to explain any unreasonable delay in the carriage of the stock.</p> <p>2. Trial — Of Issue of Fact by Court — Weight to Which Decision of Judge is Entitled. — Where the law and facts in a common law case are submitted to the ju'dge, his finding of fact will be given the same weight as the verdict of a properly instructed jury.</p>

<p>Trial — taking Case or Question from Jury — Credibility of Witnesses. — Where the only evidence upon which a plaintiff rests his right to recover consists of a statement of alleged facts inherently impossible and absolutely at variance with well established and universally recognized physical laws, such evidence will not constitute a compliance with the scintilla rule so as to entitle the plaintiff to have his case submitted to the jury.</p>

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

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

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

<p>Criminal Law — New Trial — Motion for, When and How Made.— The only provisions of the Code of practice authorizing the granting of new trials in criminal cases are contained in sections 271-274, inclusive, of the Criminal Code. Section 271 requires that the application for the new trial must be by motion; section 273, that it must be made at the same term at which the verdict is rendered, unless the judgment be postponed to another term, in which case it may be made at any time before judgment. Section 274 requires that the grounds upon which the motion for a new trial is made must be stated in writing and filed at the time of making the motion. The remedy thus afforded by the sections of the Criminal Code, supra, is exclusive; therefore, one convicted of a crime in the circuit court cannot, by petition, or after the term at which he has been convicted, apply for or obtain a new trial as allowed in civil cases by sections 344-518 of the Civil Code.</p>

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

<p>1. Statutes — Schools and School Districts. — Section 4464b. Kentucky Statutes providing that additional territory may be added to a graded common school district upon the -written request of a majority of the legal voters in the new territory is constitutional.</p> <p>2. Statutes — Schools and School Districts.- — The enactment of Section 4464b completely changing and revolutionizing the method of extending the limits of graded school districts, operated to repeal the provision in Section 4464 requiring two years to have intervened after the establishment of a graded school district before additional territory might be added.</p> <p>3. Elections — Qualifications of Voters — How Shown. — The law prescribes the qualifications of voters, and whether one is or is not a legal voter at a particular time and place cannot be shown either by opinion or expert evidence; the facts as to the age and residence must be shown.</p>

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

<p>, Elections — Qualifications of Voters in School Elections. — The word “reside” as used in Sections 4426a sub-section 3 and 4535h, Kentucky Statutes, in prescribing qualifications of voters in school elections, will be given the same meaning as is given to the same word as used in Section 145 of the Constitution prescribing qualifications of voters in other elections, i. e., it is equivalent to “legal' domicile.” The rule being that where one has acquired a legal domicile, it continues until he renounces it and takes up another in;, its' stead, a voter who has established a residence in a school 'subdistrict and then removes therefrom temporarily, without the intention of remaining in the place to which he moved, permanently, and with the fixed purpose of returning to his former home, and who never at any time voted at any place except in the sub-district. of his former abode and the precinct of which it is a part (it being a different election precinct from the one to which he moved) is entitled to vote at the place of his former abode.</p>

<p>Negligence — Evidence.—When the evidence is equally consistent with the existence or non-existence of negligence causing injury to the plaintiff, he must fail.</p>

<p>Criminal Law — Judgment—Effect of Failure to Enter on Record at Term When Pronounced — Entry at Subsequent Term. — Where the defendants are found guilty by the verdict of a jury and the verdict is duly recorded in the order book of the court, but by oversight or inadvertence on the part of the judge, judgment is not pronounced at the term at which the case is tried; or when by oversight or inadvertence of the clerk the judgment duly pronounced at that term is not entered on the order book of the court, the judge may at the succeeding term pronounce judgment in conformity to the verdict, and judgment so pronounced will have the same force and effect as if pronounced and entered on the order book of the court at the term at which the trial was had.</p>

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

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

<p>Highways — Obstructions — Injuries — Contractors — Liability.— A highway contractor, even though he be an independent contractor, is not liabile in damages to a traveler for injuries caused by stones placed in the highway by the contractor during the prosecution -of his work and suffered to remain there without guard or signal.</p>

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

<p>1. Statutes — Remedies.—Where a statute which creates an offense, prescribes a remedy for the enforcement of its penalties, that remedy must be pursued.</p> <p>2. Action — -Indictment and Information — Section 469 Kentucky Statutes. — Under section 469 of the Kentucky' Statutes, which provides that the term “action” when used in that revision, shall be construed to include all proceedings in any court of this Commonwealth, a proceeding by way of indictment is an action.</p> <p>S. Insurance — Indictment for Rebating Premiums — Section 656 Kentucky Statutes. — Under section 656 of the Kentucky Statutes, prohibiting the rebating of premiums upon life insurance policies, and providing a fine therefor “to be recovered by action in the name of the Commonwealth,” the Commonwealth may proceed to collect the fine by indictment.</p>

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

<p>1, Executors and Administrators — Suit to Settle Decedent’s Estate —Claims Against. — Where a distributee of an estate, in a suit for á settlement of it, makes a motion'to strike out a portion of the answer and cross petition of a claimant and makes no objection to the claim because of the failure of the claimant to verify it, it is an actual appearance to the suit, and a waiver of the right to object by such distributee to a judgment upon the claim, because-of, the failure of the claimant to verify it, as required by section 38,70, Kentucky Statutes.</p> <p>2. Bonds — Required by Section 410, Civil Code. — The bond required iby section 410, of the Civil Code, before judgment against a nonresident, is' not necessary to the validity of the judgment, where the nonresident has made an appearance to the suit before the rendition of the judgment.</p> <p>3. Executors and Administrators — Settlement of Estates — Liens.—A creditor: who institutes a suit for the recovery of a debt against a decedent’s estate, and for a settlement of the estate, within six months after the death of the decedent, and in the petition filed for a settlement of the estate, describes the real estate owned by the decedent, has a lis pendens lien upon such real estate to secure the payment of his debt.</p> <p>4. Executors and Administrators — Suit to Settle Decedent’s Estate.— In a suit to settle the estate of a decedent, where the claim of a creditor is contested by the administrator and heirs, and an issue out of chancery is had upon the claim, and the jury finds in favor of the creditor, and the finding is approved by the court, this is á judgment recovered against the decedent’s estate, within the meaning of section 107 Kentucky Statutes.</p> <p>6., Attorney and Client — Lien Upon Judgment for Fee. — An attorney who prosecutes a suit upon a claim to a judgment, has a lien upon the judgment for his fee, and is an equitable assignee of the judgment, to the extent of his lien, and may enforce it to the extent of his lien, although the person in whose favor the judgment is recovered, may settle the judgment without receiving money or other thing of value therefor.</p> <p>6. Judgment — Assignment of — Lien.—If a judgment is a lien upon real estate, an assignment of it, by operation of law, carries with it to the assignee the benefit of the lien.</p>

<p>1. Bonds — Supersedeas—Jurisdiction—Interstate Commerce — Failure to Raise Question — Effect.—Where, in an action by plaintiffs to require a railroad company to receive and transport their freight over a spur track lying wholly within the State, no question of the jurisdiction of the court over the subject matter of the action was raised and final judgment was rendered in favor of plaintiffs, it is too late, in an action on the bond by which the judgment was superseded, to show that the State court was without jurisdiction because the refused shipments were of an interstate character.</p> <p>2. Bonds — Supersedeas—Jurisdiction—Supersedeas Bond — Interstate Commerce — Damages.—Where a party asked and obtained a mandatory injunction against a railroad company compelling it to receive and transport its freight over a spur track lying wholly within the state, and the judgment was superseded by the execution of a bond, the State court has jurisdiction of an action on the bond, notwithstanding the fact that the damages sought incidentally grew out of the refusal of the railroad company to receive and transport interstate shipments.</p> <p>3. Limitation of Actions — Supersedeas Bond. — In an action on a supersedeas bond, the period of limitation is fifteen years.</p>

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

<p>1. Trial — Instructions—Issues and Theories. — Both sides are entitled to instructions presenting their respective theories of the case.</p> <p>2. Negligence — Joint and Several Liability. — Wherp one was injured while riding in an automobile as the guest of its owner, as the result of a collision with another car, negligence upon the part of the driver of her car does not excuse the operator of the other car if he was also negligent and such negligence either caused or contributed to the injuries; if her injuries resulted from the joint or concurring negligence of both, she may recover from either.</p>

<p>Master and Servant — Cause of Injury. — The evidence examined in-. this action by a servant to recover damages for injuries sustained. while engaged in letting a mine car down an entry in a coal mine,. and the cause of the injury found to be the servant's own want of care.</p>

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

<p>Contracts — Action to Recover Commission for Sale of Real Estate. —In a suit to recover commission for a sale of real estate by an agent under a contract without a time limit, and, where no revocation was alleged or proven, it was error for the court to submit to the jury the question as to whether the sale was made within, the limit fixed by contract, or within a reasonable time after the contract was made.</p>

<p>1. Usury — Effect of Change in Creditors. — Where a bank that had for several years charged a debtor usurious interest, required him to pay the debt, and the cashier of the bank as an individual furnished the money to the debtor to enable him to satisfy the bank, in a suit by the cashier on the notes executed to him by the debtor, the debtor could not have subtracted from the notes the usury paid the bank, in the absence of evidence showing that the notes executed to the cashier were really renewals of the bank’s indebtedness, or that the arrangement by which the cashier settled the indebtedness was a device or scheme to create a novation.</p> <p>2. Parties — Wife Not Necessary Party tó Suit to Foreclose Mortgage in Which She Did Not Join. — In a suit to enforce a lien on real estate, created by a mortgage executed by the husband in which the wife did not join, the wife is not a necessary party, as whatever right or interest she may have in the mortgaged land cannot be affected by the judgment directing a sale of the property.</p>

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

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

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

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

<p>1. Highways — Inter-County-Seat Road — Statutes.—Under the provisions of- an Act of 1914, creating a system of public highways, the road leading from one county seat which connects with a road leading to another county seat, and which is shown to be the most direct and practical route between the two county seats is an-inter-county-seat road within the meaning of that act although’ part of the connecting road running from the adjoining county seat is steep and rough.</p> <p>2. Highways — Inter-County-Seat Road — Statutes.—Under the road Acts of 1914 the fiscal court of a county may select only a part of an inter-county-seat road within its borders for reconstruction and improvement during any one year. '</p> <p>3. Highways — Fiscal Courts — Apropriation.—In the absence of the orders of the 'fiscal court the presumption is that the fiscal court did not exceed its authority and that an appropriation made by - it is valid.</p>

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

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

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

<p>1. . Fraudulent Conveyances — Burden of Proof — Ownership and' Fraudulent Transfer. — A creditor seeking to reach property of the debtor alleged to have been fraudulently transferred to his wife has the burden of showing that the property belongs to the debtor and was fraudulently transferred.</p> <p>2. , Fraudulent Conveyances — Burden of Proof — Consideration.— Where property does not belong to a wife until the transfer from her insolvent husband, it then devolves upon her to show, as against a creditor, that there was a valid consideration for the transfer.</p> <p>8. Fraudulent Conveyances — Sufficiency of Evidence — Consideration. —Evidence in a creditor’s action to reach the property of .an insolvent debtor alleged to have been fraudulently transferred, ■ held sufficient to show consideration for the transfer.</p> <p>4. Fraudulent Conveyances — Evidence.—The mere payment of a valid obligation is not a fraud upon the creditor, although, if the debtor be insolvent at the time, it may be assailed as a preference under Section 1910, Kentucky Statutes, if suit is brought within six months after payment is made.</p> <p>5. Fraudulent Conveyances — Insolvency—Proof Of. — In a suit by a creditor to reach the property of the debtor alleged to' have been fraudulently transferred, evidence examined and held insufficient to show that the debtor was insolvent.</p>