Volume 166 — Kentucky Reports

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

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

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

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

<p>3. Intoxicating Liquors — Tavern License — Construction of Statute. — < Under Section 4206 of the Kentucky Statutes, providing that “license to keep a tavern, with the privilege of retailing liquor, shall not' be granted unless the keeping of the tavern is necessary for the accommodation of the public,” the granting of license to sell liquor by retail is a mere incident to the granting of a license to keep a house of entertainment for the public, and unless the convenience of the public requires that a house for their 'entertainment should be maintained at the place where it is rsought to obtain a license to keep the tavern, no license should be granted.</p> <p>r.2. Intoxicating Liquors — Tavern License — With Privilege of Retailing Liquor — When Should Be Refused. — When it appears that the .real purpose of the applicant is to secure the right to sell whiskey, and that the application for a license to keep a tavern for the accommodation of the public is a mere pretense or scheme to secure the right to sell liquor, the license should not be granted. R. H. COOPER for appellant Robinson.</p>

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

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

<p>1. Prohibition — Power of Court of Appeals to Grant Under Section 110 Constitution. — The Court of Appeals has the power, under section 110 of the Constitutibn, to grant a writ of prohibition against the judge of an inferior judicial tribunal, when he is acting without his jurisdiction, or when he is proceeding erroneously within his jurisdiction,' and there is no adequate remedy for the error by appeal.</p> <p>2. Trusts — Production of Books. — In a litigation between a trustee and the cestui que trust relative to the trust fund, and the trustee has books, papers and documents showing his actions with the trust fund, or papers which he has received because of his trust relation, the cestui que trustent has a right to inspect the books, papers and documents, and the court will compel a production of them for that purpose, because the cestui que trustent has an equal right to them with the trustee, but the time, place and circumstances of the production of the books and papers is a matter within the sound discretion of the court, to be exercised upon a consideration of all the circumstances of the case.</p> <p>3. Insurance, Life — Production of Books and Papers. — Where an insurance company is held to be a trustee for the policy holder, while the policy holder has an interest in the records of the insurance company, the other policy holders in the company have an equal interest with him, and in a litigation between the beneficiaries of the policy and the insurance company relative to the trust fund, the insurance company, at great expense and interference with its business, will not be required to produce its books and papers in court, or before commissioners, at a great distance from the place of their keeping, that they may be inspected and evidence drawn from them by their adversaries, but the company will be required to produce its books, papers and records to the beneficiaries of the policy, their agents and attorneys, at the place where they are kept, where the céstui que trustent and his agents and attorneys may freely inspect them and take summaries and copies therefrom, for such a length of time as may be. reasonably necessary for the inspection, and thereafter, upon reasonable notice, will produce such books, papers, documents and records as the cestui que trustent may require, before an officer authorized to take depositions; at a place reasonably convenient to their place of keeping, to enable the parties to make such proof of their contents as they may desire, but not in such a manner and way as to unduly interfere with the business of the company.</p> <p>4. Trustees — Settlement—Production of Books. — It is the duty of a trustee to keep books, and to render an account to the cestui que trustent, and when he has tendered a settlement, which is-disputed for accuracy or truthfulness, the cestui que trustent has a right to inspect the books to determine whether the settlement tendered is or is not correct.</p>

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

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

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

<p>1 Brokers — Sales—Commission.—To entitle a real estate broker to-a commission for making a sale, be must be an efficient agent in, or the procuring cause of, the sale; or, as it is sometimes expressed, he must be the primary, procuring or controlling cause.</p> <p>2. Brokers — Sales—Commission.—Where a real estate agent, who-had a farm for sale, failed to describe the farm to the proposed buyer, or to tell him the name of the owner, and the proposed buyer subsequently came into communication with the owner through the instrumentality of a third person, and bought the-farm, the agent was not the procuring cause of the sale, and was-not entitled to a fee therefor.</p>

<p>1. Negligence — Proximate Cause of Accident. — Where appellant’s wire carried a high current of electricity, and appellant had notice for 20 minutes that the wire was broken and hanging in a dangerous place, its failure to -shut off the current was the proximate cause of the accident.</p> <p>2. Negligence — Contributory Negligence — Question for Jury. — It was a question for the jury whether Parker’s conduct iu crossing the street to the vicinity of the broken wires was contributory negligence on his part.</p> <p>3. Electricity — Extent of Care in Respect to Use of. — The law imposes upon those owning and operating wires charged with high current of electricity, duty to use the utmost care in respect to it. Others are required to use ordinary care for their own safety, commensurate with' the danger.</p> <p>4. Damages — Measure of Damages. — The court did not err in refusing to instruct the jury as to the measure of damages, that they should take into consideration the sums Parker might reasonably have been expected to expend upon himself for his proper maintenance and support.</p>

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

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

<p>1. Damages — Mode of Estimating Compensation — Instructions Must State.- — Instructions on the measure of damages must give to the jury a guide for fixing compensation therefor.</p> <p>2. Damages — Measure of For Reparable Injury to Personal Property. — Where there is a reparable injury to personal property, the measure of damages is the difference between the reasonable market value of the property immediately before the injury and at the place thereof, and its reasonable market value immediately after the injury at the place thereof. And, if the injury necessarily results in the loss of the use of the property pendjing repairs, the owner m'ay also recover the reasonable value of its use during the period reasonably necessary to effect such repairs made reasonably necessary by the injury as were required to put the property in a condition equal to but not better than it was in immediately before the injury. But the recovery may not exceed the reasonable market value of the property immediately before the injury, and at the place thereof.</p> <p>3. Damages — Mode of Estimating Compensation For Loss of Use of Automobile Truck. — In estimating compensation for the loss of the use of an automobile truck, the criterion is the reasonable net rental value upon the market in the community of the truck in question or of other trucks of similar capacity and equal performance, the lessee furnishing driver and paying all such other expenses as the owner of the car himself would have to bear in the operation thereof.</p> <p>4. Damages — Measure of Damages for Destruction of Personal Property. — The measure of damages for destruction of personal property, that is, for irreparable injury thereto, is the reasonable market value at the time and place of the injury of the property so destroyed.</p>

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

<p>1. Mines and Minerals — Duty of Master to Keep Roof of Entry in Repair. — Where the duty is not imposed on the servant to inspect or prop the roof of the entry, it is the duty of the master to exercise ordinary care to keep it in a reasonably safe condition.</p> <p>2. Evidence — When Witness May Describe Conditions Where an Accident Occurred, Although Not Present. — A witness who was not present when an accident in a mine happened, but was familiar with the conditions at the place where the accident occurred, ¡both before and after the accident, may describe these condi■tions.</p>

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

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

<p>1. Intoxicating Liquors — Contest Arising From Local Option Election. — The Legislature intended, by Subsection 5 of Section 2566, of Ky. Statutes, that contests arising from local option elections should have a speedy determination, and that the parties should complete their pleadings and take all their proof between the filing of the grounds of contest and the fourth Monday thereafter, and an extension of time will not be granted except for good cause shown, and a necessary thing to be shown before an extension of time can be granted, is that the party asking for it has been reasonably diligent in the preparation of his case.</p> <p>2. Intoxicating Liquors — Elections—Local Option Election — There is no statute which provides that the officers holding a local option election shall be divided between the adherents of the opposing sentiments, and the fact that all the officers are adherents of one side will not render the election invalid, in the absence of a showing of partiality, corruption or irregularity upon their •part in the conduct of the election, which affects the result of the election.</p> <p>3. Intoxicating Liquors — Local Option Election — Contest.—When a contest arising from a local option election is appealed from the decision of the board hearing the contest, to the circuit court, the trial in the circuit court is de novo, and the parties may take additional proof and make additional preparations for the trial.</p>

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

<p>1. Removal of Causes — Jurisdictional Amount — Effect of Counterclaim. — The amount of a counter-claim should not be added to plaintiff’s claim to determine the jurisdictional amount necessary for the. removal of a case to the Federal court, unless the counter-claim belongs to a class which, by the State laws, is barred unless pleaded in the suit.</p> <p>2. Set Off and Counter-claim.- — In an action to recover for balance due under a contract for hauling and drifting logs, defendant’s counter-claim considered and held not of the hind which would be barred unless pleaded In the suit.</p> <p>8. Removal of Causes — Time For Filing -Petition. — -Where the jurisdictional amount necessary for the removal of a case to the Federal court appears for the first time in an amended petition, the defendant may file his petition for removal at or before the time he is required to answer or plead to the amended petition, and the time for the application is not shortened by the fact that the allegations of the amended petition are traversed of record before the defendant’s time to answer or plead has expired.</p> <p>4. Process — Service of summons is necessary on an amended petition which states an entirely new cause of action.</p> <p>5. Pleading — Amended Petition — Time—Section 367a, Sub-section 3, Civil Code. — Under the Practice Act, Section 367a,'Sub-section 3, Civil Code, the defendant has until the first rule day, after the summons has been served ten days in the county, to file his answer or other plea to an amended petition requiring summons to be served, and where a defendant enters his appearance thereto by traversing the allegations of the amended petition, he has the same time within which to answer or plead.</p>

<p>1. Judgment — Res Judicata — Plea of. — An incidental recitation of fact in an opinion of this court will not sustain a plea of res judicata upon a reversal of the case for further proceedings, where the fact recited was not in issue under the pleadings.</p> <p>2. Court Commissioner — Report of — Exceptions.—The report of a commissioner charging the defendant with the value of a colt which the defendant claimed was dead, and an exception to the report of the commissioner, sufficiently raised the question of the date of the colt’s death, and its value.</p>

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

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

<p>Court Commissioners — Compensation and Fees. — An allowance to the master commissioner of $500 for making a sale of property beld unauthorized by Section 1740, Kentucky Statutes.</p>

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

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

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

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

<p>1. Elections — Piling Certificate of Nomination — Computation of Time. — Under a statute requiring a candidate to file his certificate of nomination with the Secretary of State not less than thirty days next before the day on which the general election is held, the day of the election itself is not to be counted as one of the thirty days.</p> <p>2. Elections — Piling Certificate of Nomination. — Such a requirement in a statute is mandatory and not merely directory.</p>

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

<p>1. Estoppel — Judgment.—Estoppels must be mutual, and hence a party will not be concluded against his contention by a former judgment, unless he could have used the judgment as a protection, or the foundation of a claim, had the judgment been the other way.</p> <p>2. Judgment — When Cannot be Relied on as Estoppel. — A judgment cannot be relied upon as an estoppel unless it was rendered in an action, in which the parties as between whom it is claimed to be an estoppel, were parties, and in the same relations and capacities, or else they must be in privity with the parties in such former action.</p> <p>3. Judgment — Res Judicata. — In order to render a matter res judicata, there must concur identity in the thing sued for; identity of the cause of action; identity of persons and parties to the action; and identity of the quality in the persons for or against whom the claim is made.</p> <p>4. Judgment — When Not Estoppel in Civil Action. — A judgment in a criminal prosecution constitutes no bar or estoppel in a civil action, which is based upon the same facts and transaction, and conversely as to a judgment in a civil action proposed to be used in a criminal prosecution.</p> <p>5. Judgment — When Not Bar to Prosecution of Action. — A judgment in a civil or penal action is no bar to the prosecution of the other.</p> <p>6. Judgment — Evidence of. Want of Probable Cause in Malicious Prosecution Suit After Acquittal. — However, in a suit for malicious prosecution or for false imprisonment, a judgment of acquittal in the prosecution upon which the suit for malicious prosecution is based, or the offense for which the false arrest was made, must be shown and is evidence of the.want of probable cause for the prosecution or arrest; and if the judgment be a conviction, it is conclusive evidence of the existence of probable cause for the prosecution or arrest, unless the plaintiff alleges in his petition and sustains by proof, that the judgment of conviction was obtained by fraud, corruption, or perjury.</p> <p>7.- Trial — Improper Argument of Counsel — When Verdict Will Be Set Aside. — When attorneys, in the argument of a case before a jury, proceed out of the record and charge that things are facts, which are not supported directly or inferentially by any proof in the record, and which are calculated to improperly influence the jury, in'reaching a verdict, and are successful in obtaining a favorable verdict, there is nothing to do except to set aside a verdict obtained in such a way.</p> <p>8. Evidence — When Transcript of Witness Cannot be Read. — The transcript of the evidence of a witness, upon a former trial of a case, cannot be read upon a subsequent trial, without the affidavit and showing that the testimony of the witness could not be had in the way provided by law, as required by Section 4643, of the Kentucky Statutes.</p> <p>9. Trial — Custody of Jury — Discretion of Court. — In a civil case, where the court, in furtherance of justice, places the jury in the custody of an officer, before the case is finally submitted to it, with directions not to separate, it is a matter within the discretion of the trial court, and must be left to the discretion of the trial court to determine whether any violation of its order for the jurors to remain together, is prejudicial to the substantial rights of the parties.</p> <p>10. Trial — Jury—Misconduct of Counsel — Verdict.—Where a jury, in a civil case, has been placed in the custody of an officer, and directed to remain and be kept together, during a trial, and before the final submission of the case to them, and the attorney of the successful party, on numerous occasions, and from time to time during recesses of the court, calls different members of the jury from their fellows, and engages in conversations with them, which cannot be heard by those present, and treats the jurors with liquors, although at their solicitation, the verdict will be set aside, in the absence of any explanation of these circumstances.</p>

<p>1.- Appeal and Error — Dismissal.—Where the clerk below copies, at the -instance and direction of the appellant, the entire record in. the case, and his certificate shows that the transmitted record, together with the stenographer’s transcript of the evidence signed by the judge and endorsed by the clerk, is a true and correct copy of the case as it appears of record in bis office, the appeal will not be dismissed on the ground that appellant failed to file a schedule in the lower court, or. that the clerk failed to certify that the entire record had been copied and transmitted to this, court.</p> <p>2. Action — Equitable Action — Transfer to Common- Law Docket— Error. — Where, in an equitable action, the only relief asked is an injunction restraining the defendant from trespassing on plaintiff’s property, though the relief may depend on an issue of fact, it is error to transfer the case to the common law docket for a decision by the jury on the whole case. The proper practice is to order an issue out of chancery and submit only the: question of fact to the determination of the jury.</p> <p>3. Action — Improper Transfer — Motion and Grounds for New Trial— Necessity For. — To rely on the error of the court in transferring; a purely equitable action to the common law docket for the determination of the jury, it is not necessary to include same in. the motion and grounds for a new trial.</p> <p>4. Witnesses — Impeachment—Section 597 Civil Code. — It is not proper to impeach a witness by evidence of, or inquiry as to, particular acts or crimes, nor is it proper to ask him whether or not he has been indicted or arrested for a particular offense. The only proper method of inquiry in regard to every offense is to ask him whether or not he has been convicted of a felony.</p>

<p>'1. Municipal Corporations — Passage of Ordinance Creating Franchise.' — -Under Section 3636 of the Kentucky Statutes, which provides that no ordinance or resolution granting a franchise shall be passed by the city council on the day of its introduction, nor within five days thereafter, nor at any other than a regular meeting, an ordinance creating a franchise, introduced into the city council of a city of the fifth class on April 2nd, 1906, and passed hy the council at the same meeting, was invalid, and the purchaser of the franchise under the ordinance ' so passed acquired no franchise rights.</p> <p>2. Municipal Corporations — Ordinance Creating Telephone Franchise. — Where a municipal ordinance creating a telephone franchise was introduced into the council on April 2nd, 1906, and passed by that body on the same day, it was invalid, and was not cured by a subsequent ordinance, of substantially the same purport and effect, introduced into the council on May 7th, 1906, and passed on that day.</p>

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

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

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

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

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

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

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

<p>1. Master and Servant — Mines and Mining — Duty to Prop and Timber — Evidence—Instructions.—In an action by a loader in a mine for damages tor personal injuries, evidence examined and held not to show it was the duty of the loader to prop the roof or taire down the slate.</p> <p>2. Master and Servant — Mines and Mining — Duty to Prop and Timber — Delegation of Duty. — Where, under the custom of the mine, it is the duty of the mine owner to prop or take down the draw slate in the rooms where.the men are working,, the mine owner cannot escape this responsibility .by delegating the duty to .a contractor who agrees to take charge of a part of the mine and' take the coal out at so much per ton.</p> <p>3. Master and Servant — Safe Place — Assurance of Safety — Who May Give. — Where, in a mine, the duty devolves upon the mine owner to cross-timber the rooms in order to make them safe, a timber' man selected to do the work acts in the place of the master and is a vice principal, whose assurance of safety is an assurance by the master.</p> <p>4. Master and Servant. — Safe Place — Warning of Danger. — A miner cannot recover damages for personal injuries caused by falling slate, where the timber man selected by the mine owner to timber the rooms in the mine warns him that the roof of the room is dangerous and of the danger of working thereunder a sufficient length of time before the accident to enable the miner by the exercise of ordinary care, to stop work and avoid the peril.</p> <p>5. Trial — Misconduct of Counsel — Improper Argument.. — -On a trial for damages for personal injuries, argument of counsel considered and held to so far transcend the limits of legitimate debate as to authorize a reversal.</p> <p>6. Trial — Misconduct of Counsel — Improper Argument — Necessity for Affidavit — 'Section 340, Sub-section 2, Civil Code — Section . 343 Civil Code. — Section 343 Cicil Code requiring that the misconduct of plaintiff’s attorney be sustained by affidavits' applies only to those cases where the misconduct of counsel does not occur in the presence of the court, or, occurring in his presence, is the subject of dispute. It does not apply where the argument takes place in the presence of the court and is set forth in the bill of exceptions and authenticated by the court.</p>

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

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

<p>Municipal Corporations — Street Improvements — Abutting Owners. —Under the provisions of a city charter requiring the recon-' struotion of carriage-ways to be paid for by the city and the reconstruction of curbing and guttering to be assessed against the abutting property owners, the fact that both improvements are provided for in one ordinance does not make the reconstruction of the curbing and guttering a part of the reconstruction of the carriage way, and therefore payable by the city. The same effect must be given to the ordinance as if the two improvements had been provided for in separate ordinances.</p>

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

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

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

<p>1. Damages — Action for Personal Injuries — Independent Contractor— Burden of Proof. — In a suit against a railroad company to recover for personal injury suffered by a servant of one of its employees engaged in doing tunnel work, and where tbe answer alleged that the servant was employed by the tunnel worker, and the tunnel worker was employed by the railroad, the burden of proof is upon the railroad to sustain its controverted allegation that the tunnel worker was an independent contractor.</p> <p>2. Negligence. — The mere fact of an explosion of a steam boiler creates no presumption of negligence.</p> <p>3. Negligence — Children.—Where the petition charges negligence with reference to the operation and management of a steam boiler a recovery can not be had for unlawful employment of a child under 16 years of age engaged at work in a dangerous place.</p>

<p>1. Municipal Corporations' — Liability for Obstruction of Street by Property Owner. — Where a municipal corporation issued a permit to a property owner to build a house, giving him the right to place material in the street, the municipality was under a duty to take notice of the use to which the owner put the street, and was liable in damages to any person sustaining injuries on account of the obstruction the owner put in the street making it unsafe for travel.</p> <p>2. Municipal Corporations — Duty to Keep Streets in Safe Condition for Travel. — A municipal corporation is under a duty to exercise ordinary care to keep its streets reasonably safe for public travel, and it must take notice of the different classes of people that use its streets and maintain them in order for use by these several classes, including children.</p> <p>3. Municipal Corporations — Care Required of as to Streets Used by Children. — A city must take notice of the use of its streets by children and exercise ordinary care to keep them reasonably safe for such use, and if it places or permits to be placed in the streets an attractive nuisance that is dangerous to children, it will be answerable for any injury they sustain.</p> <p>4. Municipal Corporations — First Class Cities — Ordinances.—Under section 2775 of the Kentucky Statutes the courts are required to take judicial notice of the ordinances of the city of Louisville, and this dispenses with the necessity of introducing these ordinances’ in evidence.</p> <p>5. Municipal Corporations — Streets—Obstruction of by Property Owner — Duty and Liability. — Where a property owner secures permission from the city to use its street for the purpose of placing building material thereon, it is his duty to so protect the material as to leave the street reasonably safe for public travel by children as well as adults, and he cannot excuse himself from either his duty or liability by employing other persons to do what he has been granted permission by the city to do.</p> <p>6. Municipal Corporations — Streets—Obstruction of — Who Liable for. —Where a city grants permission to a property owner to put building material in a street, and a traveler is'injured by reason of failure to properly protect the material, the city, the property owner and the contractor employed by him to do the work may be held jointly and severally liable to the injured party.</p> <p>7. Municipal Corporations — Streets—Attractive Nuisance — Sand Pile. —Where a sand pile accessible to children was placed in the street, it was an attractive nuisance, and the property owner, th’e city and the contractor were each liable for damages on account of injury to a child, who was burned in a bed of slaking lime that had been placed in the sand.</p> <p>8. Evidence — Judicial Notice — Jury May- Take Notice That Sand Pile is Attractive to Children. — That a sand pile is attractive to children and a place where they delight to play, is a matter of such common knowledge in the every-day affairs of life that courts and juries may take notice of it without direct evidence on the .subject.</p> <p>9. New Trial — On Account of Smallness of Damages. — Under section 341 of the Code a new trial cannot be granted on account of the smallness of damages in an action for injury to the person, but if the inadequacy of the verdict, is attributable to errors committed during the trial of the case, the mere fact that the damages are inadequate, or that this may be one of the causes for granting a new trial, does not interfere with the right of the court to set aside the verdict.</p> <p>10. New Trial — Smallness of Damages — Presumption.—Where grounds other than the inadequacy of the verdict are relied on to obtain a new trial, and these grounds, or some of them, are sufficient ‘ to justify the trial court in directing one, we will not assume that the new trial was granted because the recovery was inadequate when the record does not show the reasons that influenced the trial court in ordering a new trial.</p> <p>11. Damages — Injury to Child. — Where the hand and arm of a child were totally destroyed and the other hand and body hadly burned a verdict for $10,000 was not excessive.</p>

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

<p>1. Banks and Banking — -When Bank Liable' in Damages for Failure to Deliver Stock. — Where a certificate of stock was left by the owner in the possession of the bank, the bank should deliver it to the owner within a reasonable time after demand, and upon its failure to do this, it becomes liable to the owner for any damage he may have sustained on account of its conversion of the stock to its own use.</p> <p>2. Sales — Personal Property — Time of Delivery. — Where bank stock was offered for sale at a public sale, time not being an essential part of the contract, the purchaser could be required to take the stock if tendered to him within a reasonable time after the sale.</p>

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

<p>1. Libel and Slander — Questions for Jury. — Where the language complained of is susceptible to two interpretations, one actionable and the other non-actionable, and the accompanying language does not show in which sense the language complained of was spoken, it is for the jury to determine in which sense it was used.</p> <p>2. Libel and Slander — Instructions.—The word “rob” in its colloquial sense is not actionable; and where its use is charged in slander, the court should tell the jury what constitutes the offense of robbery, and that unless the words spoken were intended to charge plaintiff with the crime of robbery and would be naturally so understood by persons hearing them, the verdict should be for the defendant.</p> <p>3. Appeal and Error — Preservation of Objections in Bill of Exceptions. — Complaint of a ruling limiting the number of witnesses cannot be considered on appeal where the bill of exceptions does not show such ruling.</p> <p>4. Libel and Slander — Evidence—Admissibility of Evidence of plaintiff’s Good Character. — In an action of slander plaintiff may prove his good character, although not attacked, even though there be no plea of justification.</p>

<p>Divorce — Alimony.—The judgment granted a divorce to the husband and denied alimony to the wife. Evidence - examined on the wife’s appeal. Occasional shows of temper and petulant and rude conduct, the wife being equally in fault, held not to show such danger of bodily harm and cruelty in him as the statute contemplates and affords relief against.</p>

<p>1. Elections — Primary Elections — Contest—Notice.—Sub-section 28 of section 1550 of Carroll’s Statutes (1915), which provides that, a- candidate who wishes to contest the nomination of another candidate who was voted for at a primary election, must give written notice to the person whose nomination he intends to contest, stating the grounds of' such contest, within five days from the time the election commissioners award the certificate of nomination to the contestee, is jurisdictional, and a failure to give the notice within five days after the certificate of nomination was awarded, authorized a dismissal of the contest for want of jurisdiction.</p> <p>>2. Elections — Primary Elections — Contest—Notice.—Under sub-section 28 of section 1550 of Carroll’s Statutes (1915), the notice to contest the nomination of a -candidate voted for at a primary election may be served as a summons is served, or, if that cannot be done within the five days by reason of the contestee concealing himself, or absenting himself, or by' obstructing the service of summons in any other way, it may be served at any time within five days as a notiee is required to be served by section 625 of the Civil Code of Practice..</p>

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

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

<p>1. Deeds — Restraint Upon Power of Alienation. — A reasonable restraint upon tlie power to alienate a vested fee simple estate may be imposed by the deed or will creating the estate, and such restraining provision will be held valid.</p> <p>2. Deeds — Restraint Upon Power of Alienation. — No general rule, however, exists by which it may be determined what restraints upon the alienation of a vested fee simple estate are reasonable, and which restraints are unreasonable, and each particular case must be determined upon the particular circumstances of it.</p> <p>3. Deeds — Restraint Upon Power of Alienation. — The rules holding void any unreasonable restraint of the power of alienation of a vested fee simple estate, are founded upon reasons of public policy, as being restraints upon the commercial and social advancements of a community.</p> <p>4. Deeds — Restraint Upon Alienation. — A clause in a deed, which imposes upon the grantees of a vested fee simple estate a restraint of the power of alienation to certain specified persons, or to persons of a designated class, are valid,' but a clause restraining the power of alienation to. any one, except the heirs of a certain designated person, is yoid.</p>

<p>1. Statutes — Repeal.'—A statute may be repealed, either by implication or by an express provision of a subsequent statute.</p> <p>2. Statutes — Repeal by Implication. — A repeal by implication occurs when the provisions ©f the prior and subsequent statutes are repugnant to each other and irreconcilable, or when the later statute covers the whole subject matter of the former one and is manifestly intended as a substitute for it.</p> <p>3. Statutes — Section 51 Constitution. — It is not violative of section 51 of the constitution for the General Assembly to repeal a statute by adopting a repealing statute in which the title refers to the act to be repealed by a reference to the chapter or section of the Kentucky Statutes, which embraces the statute designed to be repealed, but a statute designed to expressly repeal another, must have a title, wherein the repeal of the statute is set out as the purpose of the act.</p> <p>4. Statutes — Section 4356s Ky. Stats. — Constitutional Law. — Section 4356s Kentucky Statutes, Carroll, 1915, is violative of section 51 of the constitution, so far as it attempts to repeal Article 11, Chapter 110, of Kentucky Statutes, Carroll, 1909.</p> <p>5. Statutes — Private Passway — Appeal and Error. — Article 11, Chapter 110, of Kentucky Statutes, 1909, was intended to be a complete proceeding for the establishment by condemnation of a ¡private passway, over the lands of one person for the use of another, as provided in that statute, and an appeal can not be taken from the county to the circuit court in such proceeding until there is a final determination of the case in the county court.</p> <p>6. Private Roads — Establishment.—The county court can not determine the necessity for the passway until after the appointment and report of Commissioners, because that is one of the things that the Commissioners must report in regard to.</p> <p>7. Private Roads — Establishment of — The court must determine the necessity for the passway, so far as regards the appointment of the commissioners, from the statements of the petition, but the issue as to the actual necessity for the passway is one going to the merits and must be determined upon exceptions to the report of the Commissioners.</p> <p>8. Private Roads — Establishment of. — The ten days’ notice required to be given of the application for the appointment of commissioners is to enable the owner, over whose lands the passway is proposed, to have a hearing at that time, as to who shall be the commissioners, and whether or not- the petition shows facts, which under the statute, entitles the applicant to have Commissioners appointed. These are the only questions before the court at that time.</p>

<p>1. Appeal and Error — Transcript of Evidence — Absence of — Effect.— In the 'absence of the transcript of evidence, this court will presume that the omitted portions of the record will support the judgment, and the only question to be determined is whether the pleadings support the judgment. , .</p> <p>2. Appeal and Error — Pleading—Contract—Inconsistency.—In a suit on an accident insurance policy the court cannot, in the absence of the policy itself, determine whether or not it contradicts the pleadings.</p> <p>3. Pleading — Construction—Effect of Verdict and Judgment. — After verdict and judgment, pleadings will be liberally construed to support the judgment, and any formal defect will be held to be cured by the verdict an'd judgment.</p> <p>4. Pleading — Construction—Effect of Verdict and' Judgment. — A petition in an action to. recover on an accident insurance policy, which alleges- that at the time of the accident - the policy “was alive and in full force and had been so kept and maintained since the date of its execution and delivery,” is sufficient, after verdict and judgment in favor of plaintiff, to support the judgment.</p>

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

<p>1. Waters and Water Courses — Obstruction by Railroad — Liability.— In an action against a railroad for damages caused by obstruction of water .of a creek by a bridge, the company is liable only in the event that the bridge obstructed the passage of water accumulating from such ordinary and usual rainfalls in the vicinity as might have been anticipated by persons of ordinary experience and prudence, and it is not liable for overflows caused by extraordinary rains or floods, i. e., such as are unusual in the vicinity, and could not have been anticipated by such persons.</p> <p>2. Waters and Water Courses. — Obstruction cf Water of Creek — Evidence — Peremptory Instruction. — In an action against, a railroad for damages caused by obstruction of water of a creek,by a bridge on- its road, evidence i considered and held to conclusively establish that the rains and flood causing the alleged injury were' extraordinary in cháracter and of such unusual occurrence in the vicinity that they could not have been anticipated by persons of ordinary prudence and experience; and that the trial court should have’ directed a verdict in favor of the defendant.</p>

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

<p>1. Highways — When a Charge on the County — Establishment of.— Under sections 4287 and 4295 of the Kentucky Statutes, it is necessary that a highway should be established by order of the county court before it becomes a part of the system of public roads in the county and entitled to its share of improvements and repair, and, although a road may have existed for many years and have been used continuously by the public, this does not constitute it a public road within the meaning of the statute.</p> <p>2. Highways — Use of Road by Public — Effect of — Although the County Has Never Established It as a County Road. — The failure of the county to establish a road used by the public as a county road does not deprive the public of its use as a highway if, independent of the statute, the conditions surrounding its use are such as to create in the public a right to its use.</p>

<p>1. Master and Servant — Safe Place — Railroad Signal Torpedo. — The presence of a railroad signal torpedo on a railroad track over which a section foreman is proceeding with his crew on a hand-car is not negligence in failing to provide a reasonably safe place in which to work, nor in any other respect. It is one of the dangers ordinarily incident to the operation of railroads, and a place is safe in contemplation of the safe place rule when the only dangers therewith connected are those ordinarily incident to the employment.</p> <p>2. Master and Servant — Superior Servant Doctrine — Negligence oE Section Foreman. — Where a section foreman proceeding over the track with his crew on a hand-car negligently fails to observe the presence of a torpedo on the track and such negligence is gross, a section man thereby injured may recover from the master.</p> <p>3. Master and Servant — Assumed Risk. — The servant assumes all the risks ordinarily incident -to his employment, hut not the risk of gross negligence on the part of a superior servant.</p>

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

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

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

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

<p>1. Officers — Increase or Reduction of Compensation — -Constitutional Law. — Under sections 161 and 235 of the Kentucky Constitution, the salary of a county attorney cannot be changed during the term of office for which he was elected.</p> <p>2. Officers — Increase or Reduction of Compensation — Constitutional. Law. — In carrying out the provisions of sections 161 and 235' • of the constitution, which prohibit the changing of a county attorney’s salary during his term of office, it is the duty of the fiscal court, by an order entered before- the election of the county attorney, to fix his salary for the ensuing term, but if it should fail to -do this, it has the right to fix the salary after the county attorney’s election and before his qualification, or even after he has taken office.</p> <p>3. Evidence — Records.—A court speaks by the record, and can. speak in no other way.</p> <p>4. Officers — Salaries.—A member of a county fiscal court cannot legally vote so as to break a tie, upon a motion to fix his own. salary as county judge.</p> <p>5. Judgment. — A judgment of a -court having jurisdiction cannot be attacked in a collateral proceeding.</p>

<p>1. Deeds — Construction—Intention of Grantor. — Tbe court must construe a deed according to tbe intention of tlie grantor as gathered from tbe whole instrument, and where it appears that the grantor’s intent was to vest a less estate than a fee in the grantee the intent will be carried into effect, and technical words in the granting or habendum clauses importing a fee must yield to the other provisions limiting the interest of the grantee to a life estate.</p> <p>2. Deeds — Construction—Estates Acquired. — The provisions of a deed considered and held to vest in the. named grantees only a life estate with remainder to the children of one of the grantees.</p>

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

<p>1. Indictment and Information — Duplicity.—Where the accusative part of an indictment describes an offense denounced by a section of the Statutes, and the descriptive part states an offense under that section, the fact that there is in the descriptive part certain surplusage which might have reference to the crime denounced in another section of the Statutes, does not make it bad on account of duplicity. The indictment will be held good under the section referred to in the accusative part.</p> <p>2. Indictment and Information — Bill of Particulars — Conversion.—An indictment charging the conversion of personal property, under section 1358a, which is general in its allegations as to the personal property alleged to have been converted, is good on demurrer, but whenever such an indictment has a general charge in it which is good, but which -does not sufficiently describe the property alleged to'have been converted, the-court may require the Commonwealth to file a bill of particulars.</p>

<p>1. Principal and Surety — Indulgence—-Discharge of Surety. — Any act of the creditor which entitles the obligor to indulgence, after the debt shall have become due according to the terms of the original contract, will, in equity, discharge the surety who has not consented to the indulgence, and his consent cannot be inferred from his silence, or neutrality, but must be evinced by some positive act.</p> <p>2. Principal and Surety — Discharge of Surety. — The surrender of collateral security by the creditor to the principal debtor without the consent of the surety, discharges the surety, and it is not material whether the collateral so surrendered was sufficient to discharge the whole debt or not.</p> <p>3. Principal and Surety — Creditors.—The surety stands by the letter of his. contract, and the chancellor will not start out in pursuit of equities that will relieve the creditor from an injudicious agreement in order to hold the surety bound for the debt.</p> <p>4. Trial — Submission of Controversy. — It is improper to submit to the jury an issue upon which there is no proof.</p> <p>5. Banks and Banking. — Where a bank, in violation of section 581 of the Kentucky Statutes, took its own capital stock as security for a loan, and the contract has been executed and the stock disposed of, the prohibition against the validity of the transaction can only be urged by the State, and, both parties being equally the subjects of legal censure, they will be left by the court where they have placed themselves.</p>

<p>Contracts- — Interest on Purchase of Land — When Not Usurious.— Where, on a purchase of land, the vendee agrees to pay as part of the purchase price a rate of interest on deferred payments-exceeding the legal rate, the contract is not usurious.</p>

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

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

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

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

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

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

<p>1. "Trial — Trying Cases Together. — Where several actions are brought by one plaintiff against different defendants and the issues are. the same in each action, the court may, in order to avoid unnecessary delay and expense, order them to he tried together. Whether the cases should be tried together is a matter in the discretion of the court, and such discretion will not be interfered with on appeal unless it is clearly made to appear that the discretion was abused.</p> <p>2. Trial — Trying Cases Together. — Where plaintiff brings two separate actions, one against a reporter of a newspaper for writing and causing to be published a libelous article, and the other against the owner of the paper for publishing it, and the issues and the evidence are precisely the same in each action, and it not appearing that a joint trial would place plaintiff in a position not occupied by his adversaries, or would probably give them an undue adyantage in the trial, it is not an abuse of discretion on the part of the trial court to order the two cases tried together.</p> <p>3. Libel and Slander — Pleadings—Instruction—Section 2438b, Kentucky Statutes, 1915. — Section 2438b of the Kentucky Statutes, 1915, in regard to retraction of a libelous article, merely confers upon the defendant the right to show the retraction for the purpose of defeating punitive damages. It does not confer upon the plaintiff the right to stow a failure to retract for the purpose of aggravating such damages where no retraction is demanded by plaintiff; and in an action for libel it is not error to strike from a pleading the allegation that defendant failed to publish a retraction within the time limit fixed by the statutes, or to refuse to give an instruction based on such allegation.</p> <p>4. Libel and Slander — Punitive Damages — Instruction.'—In an action for libel against a newspaper reporter, an instruction telling the jury that they could not find punitive damages if they believed from the evidence that the defendant. “at the time said article was written by him and caused to be published in ‘The Paducah Evening Sun,’ had received such information as would lead a reasonably prudent person to believe, and the defendant did believe, that the plaintiff was the near relative who was accused of murdering Marshall T. Finley, and wrote and caused' to be published said article as a matter of news, in good faith, and without any actual malice toward plaintiff,' and did not in ' a wanton and reckless disregard of plaintiff’s right publish said article of and concerning him,” since it does not require belief, upon reasonable grounds, in the truth of the charge contained in the libelous article, but mere belief, upon reasonable grounds, that the plaintiff is the person accused of the crime.</p>

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

<p>Officers — Increase or Decrease of Compensation. — Where the duty devolves upon the fiscal court to fix tbe salary or compensation for a county officer, it is tbe duty of tbe court, by an order previous to bis election, to fix bis compensation for each year of bis term, and where tbis bas been done, tbe fiscal court bas no power to change bis salary or compensation after bis election and during bis term of office.</p>

<p>1. Statutes — Title of Act Must Express Subject .Ma-tter of Act — - Purpose of Constitutional Law. — Tbe purpose of Section 51 of the Constitution is to enable persons reading the title- of an act to get a general idea of what the act contains; therefore, under the authority of this constitutional provision, «members of the General Assembly and others interested in legislation, have the right to rely on the title as indicating the subject matter of the act and to assume that the act contains no legislation that is not, in a general way, embraced by the subject expressed in the title.</p> <p>2. Statutes — Title of Act — When Insufficient. — Where an act, the title of which is: “An Act for preventing the manufacture and sale of adulterated or misbranded foods, drugs, medicines and liquors; and providing penalties for violations thereof,” contains a single section, embracing fourteen sub-sections, one of which, the eleventh sub-section, provides for the payment to the Agricultural Experiment Station of $7.50 for each analysis - of any sample of food or drug made by its director; also for the payment of expenses incurred by it for expert witnesses attending grand juries and courts, clerk hire and all other expenses for carrying out the provisions of the act, the total expense not to exceed in any one year $30,000.00, to he paid out of the State Treasury, such sub-section is violative of Section 51 of the Constitution, as neither the expenditures nor appropriation ■authorized thereby can be said to he embraced by the subject expressed in the title of the act.</p> <p>3. Statutes — Subject Foreign to Title — Effect of Introducing Into Body of Act. — When a subject foreign to that expressed in the title, is introduced in the body of an act, if it is so separate and distinct from the remainder of the subject matter of the legislation that it may he omitted without affecting the otherwise valid portions, then the unconstitutional part will oe eliminated and the remainder permitted to stand.</p>

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

<p>l. Taxation — Inheritance Tax — Not Retroactive — What Property Not Liable Therefor. — The Statute of 1906 imposing an inheritanee tax, cannot be given a retroactive effect, therefore property the title to which was acquired, before the statute became effective, is not liable for such tax, in the hands of the owner.</p> <p>2. Deeds — Title to Real Estate Conveyed by Deed — Vests Upon Delivery of Deed. — Where a testatrix, by will executed in 1906, devised real estate to a person to whom she had by deed conveyed the same property in 1895, reserving to herself a life estate therein and 'power to revoke the deed during her lifetime, which power was never exercised, the title to such real estate passed by the deed of the testatrix and not under the will. The grantee took under the deed a defeasible fee in remainder, subject to be defeated by the grantor’s revocation of the deed, and as the deed was never revoked, and the life estate it reserved to the grantor, ceased at her death, the grantee’s title was complete without the devise in the will.</p> <p>3. Appeal and Error — Judgment Will be Affirmed if Correct, Although Based on an Erroneous Ground. — As Section 134, Civil Code, provides: “The court must in every stage of an action, disregard any error or defect in the proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect,” although the circuit court may have erred in adjudging the dismissal of an action upon the ground indicated, yet-if on consideration of the whole record the Court of Appeals finds that the judgment was authorized upon a different ground, it will be affirmed.</p>

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

<p>Carriers — Carriers of Passengers — Purchaser of Ticket Not Passenger in Attempt to Board Moving Train. — One who has purchased a ticket entitling him to passage on the train which he attempts to board after it is motion, is a trespasser. To one in such position, the railroad company owes no duty except that of exercising ordinary care to avoid injury to him, after the discovery of his peril.</p>

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

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

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

<p>Divorce — Void Marriage — Entry of Judgment on Order Book Indispensable. — Where a woman, who had not been divorced from her first husband, married the second time, the marriage was void; and although she had brought a suit against her first husband for divorce, and after the suit had been prepared for trial the court had announced that he would grant the divorce, and •ordered the judgment to be prepared, the entry of this judgment •on the record book of the court was indispensable to establish the fact that the divorce was granted.</p>

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

<p>1. Master and Servant — When Master Not Liable For Injury to Servant. — A competent and experienced servant, charged with the duty of keeping in repair a water column at a depot, and who, under a general order from a superior, previously given, undertakes the repairing of a leaking valve in the water column, the danger of doing which is obvious and, therefore, bound to be known to him, cannot, if injured by failing from the column, while engaged in such work, recover damages of the master for such injury. Especially is this true where the injured servant, by reason of bis skill and experience, had for several months before the accident been entrusted with the work of keeping the water column in repair.</p> <p>2. Master and Servant — Doctrine of Safe Place and Safe Appliances —When Not Applicable. — When the servant, by reason of bis-skill and experience, is put in charge of a pumping station and the work of keeping in repair a water column used in connection, therewith, the rule that his master must use ordinary care to. provide him a safe place to work has no application where the danger of performing such work is open and obvious. In such, case the servant must protect himself against such danger, and he assumes such risks as are ordinarily incident to such work, as he is charged with the duty of inspection and allowed to. determine the manner of doing the work.</p> <p>3. Master and Servant — Employers’ Liability Act — Action Under — » Defense of Assumption of Risk. — The elimination of the defense of assumption of risk by the Employers’ Liability Act of April. 22, 1908, Section 4, in any case where the violation by the carrier of any statute intended for the safety of employes contributed to-the injury or death of the employe, plainly evidences the legislative intent that in all other cases such assumption of risk shall, have its former effect as a complete bar to the action.</p>

<p>1. Negligence — Contributory Negligence. — Where the danger is open and obvious and could be easily seen and appreciated by one of ordinary intelligence there. can be no recovery for an injury received by a workman who goes about his work m such a way as to bring about the injury.</p> <p>2. Negligence — Contributory Negligence. — The fact that a freshly dug ditch will cave in when weight is put upon the earth near its edge is one which a person of average intelligence will be presumed to know.</p> <p>3. Master and Servant. — The direction by a foreman to a laborer to do certain work which may be done in a safe way is not equivalent* to ordering him to do it in an unsafe way.</p>

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

<p>1. Judicial Sales — Sale by Master Commissioner — Discretion.—A master commissioner making a sale of land under a decree of court, bas duties to perform as to the complainant, the vendor, the purchaser, and the court; and, m the performance of those duties, he must exercise his best judgment. He is necessarily invested with a reasonable discretion, in many respects, as to the manner of its exercise, taking care, however, to obey the decree so far as it has given him specific directions.</p> <p>2. ' Judicial Sales — Failure to Bring Appraised Value — Resale.—Where a master commissioner selling land under a decree of court, knocked down the land to a bidder at $250.00, which was less than two-thirds of its appraised value, and with the purchaser's consent, again offered the land for sale, and knocked it down to the same purchaser for $667.00, which was more than two-thirds of its appraised value, the sale will not he set aside upon the exception of the debtor.</p>

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

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

<p>Eminent Domain — Damages Where Land Subject to Life Estate.:— The owner of a life estate in land taken by right of eminent domain is entitled to a life estate in the money received as damages.</p>

<p>1. Commerce — Carriers—Interstate Commerce. — The Mann-Elkins Act of Congress, passed June 18tb, 1910, making it unlawful for a common carrier of interstate commerce to disclose, without the consent of the shipper or consignee, any information concerning property delivered to such common carrier for interstate transportation, was designed for the protection of interstate commerce, and was an extension of the original Interstate Commerce Act of 1887.</p> <p>:2. Intoxicating Liquors — Shipment—Kentucky Statutes, Section 2569b. — The Mann-Elkins Act, passed by Congress on June 18th 1910, applies only to interstate shipments; the Kentucky Act of 1914 (Carroll’s Statute 1915, section 2569b, sub-section 3), making it lawful for a common carrier within this State to carry intoxicating liquors from a point within the State where intoxicating liquors may be lawfully sold, to another point within the State -where intoxicating liquors may not lawfully be sold, under the conditions prescribed by said statute, applies to intrastate shipments only.</p> <p>3. Intoxicating Liquors — Webb-Ke-nyon Act — Effect of. — The federal law, known as the Webb-Kenyon Act, approved March 1, 1913, had the effect of withdrawing interstate shipments of liquor from the protection afforded to interstate shipments by the Federal •Constitution, and made them subject to the State law, in case •such interstate shipments were intended, by any person interested therein, to be received, possessed, sold, or in any manner used in violation of any law of the State.</p> <p>•4. Intoxicating Liquors — Webb-Kenyon Act. — Before the passage of the Webb-Kenyon Act by Congress in 1913, all interstate shipments were under the protection of the commerce clause of the. Federal Constitution, and they must so remain except to the extent that they have been taken out of that protection by the Webb-Kenyon law; and, since that law specifies the character of the shipment designed to be taken from under the protecting clause to be liquors intended to be received, possessed, sold, or in any manner used in violation of any law of a State, it was manifestly not the intention of Congress to remove this protection from any other character of shipment.</p> <p>5. Intoxicating Liquors — Webb-Kenyon Act. — It is not unlawful for one to buy, where it is lawful to sell it, intoxicating liquor for his own use, and bring it into Kentucky, or to have liquor so purchased in his possession, for such use; and, to such a case the Webb-Kenyon Act has no application.</p> <p>6. Intoxicating Liquors — Interstate Shipment. — In the absence of proof that an interstate shipment of intoxicating liquor into Kentucky is of that character which is forbidden by the laws of this State, it will be presumed that the shipment was lawful; and not being intended to be received, possessed, sold, or in some manner used in violation of the law of Kentucky, the Webb-Kenyon Act' has no application; and the carrier who refused to exhibit to a stranger his book of interstate shipments, kept under the Act of 1914, did not violate that law.</p>

<p>1. Elections — Graded School Trustees — Officers of Election — Certificate. — Under Section 4485, of the Kentucky Statutes, officers of graded school elections should be appointed by the board of trustees, and they should return the poll books and certify the result of the election to the board, and the board should examine and compare the same and issue certificates to the persons found to be elected.</p> <p>2. Elections — Graded School Trustees — Action to Quiet Title — Certificate Necessary to Maintain Action. — A certificate of election from the board of trustees of a graded school is necessary to enable a person claiming to have been elected trustee to maintain an action against another person for interfering with him in the discharge of his duties as trustee.</p> <p>3. Elections — Graded'School Trustees — Mandamus to Compel Issual of Certificate. — If the board of trustees refuse to issue a certificate to a person who has been elected trustee, he may compel the board by mandamus proceedings to. issue him a certificate.</p>

<p>1. Judgment — Suit to Enjoin Collection of. — Tbe circuit court bas jurisdiction of an action to enjoin tbe collection of an execution issued from an inferior court on a void judgment, but not one issued on an erroneous judgment.</p> <p>2. Pleading — In Justices’ Courts — Petition—When Necessary — Effect of Failure to File. — Under section 705 of tbe Civil Code if tbe matter in controversy does not exceed $50, tbe pleadings may be oral, but if the amount is more than $50 tbe pleadings should be in writing; but where tbe writing or claim that is tbe basis of tbe action is filed with tbe magistrate, tbe judgment is not void merely because tbe plaintiff failed to set out in a petition bis cause of action.</p> <p>3. Pleading — Practice—In Inferior Courts — Not Strictly Judged.— Proceedings in inferior courts are not to be strictly judged, and unless it appears that tbe rights of tbe parties have been prejudiced by tbe failure to observe correct rules of practice, errors in this respect will be treated as immaterial.</p> <p>4. Judgment — Premature—When Collection of Cannot be Enjoined.— Tbe rendition of a judgment before a case stands for trial is not ground for enjoining its collection. It is merely a clerical misprision to be corrected in tbe court rendering tbe judgment.</p>

<p>Boundaries — Division Line — Action to Establish. — The parties were joint owners of a lot supposed to be rectangular in shape,, and they made deeds of partition upon that theory. It now appears that the rear line is 29 inches shorter than the front. The appellants were part owners of a lot adjacent to the one they took in partition, and subsequently joined in a deed with the other owners conveying the adjacent lot. The vendee of that lot, under his deed, encroached upon appellant’s lot 2.9 inches. Held, appellants can not compel appellees to bear any of the Shortage or readjust the division line in order to save appellants, from any of the loss.</p>

<p>•1. Witnesses — Competency of Wife to Prove Facts in Respect of Residence in Action for Divorce. — Although under section 606 of the Civil Code as amended by the Act of March 15, 1912, the wife is competent to testify in an action for divorce, concerning the grounds mentioned in the Act, she is not competent to prove her residence. That fact must be proved by other witnesses. The amendment did not change the rule in this respect.</p> <p>2. Appeal and Error — Chancellor’s Finding on Conflicting Evidence not Disturbed on Appeal. — Where upon a consideration of the evidence the mind is left in' doubt as to the truth of the matter, the finding of the chancellor will not be disturbed on appeal.</p>

<p>1. Covenants — Breach of Warranty. — Where there has been no eviction but the grantee is in the undisturbed possession of the property under an executed contract, relief against the payment of the purchase money will not be decreed upon a mere showing of a defect in the title, coupled with the insolvency of the grantor. Relief will be granted only in the event that there is a palpable and threatening danger of immediate eviction or ultimate loss without legal remedy, and. the grantee uses due diligence to bring before the court the adverse claimants from whom the danger is apprehended.</p> <p>2. Contracts — Statute of Frauds — Pleading.—In pleading a contract within the Statute of Frauds, the pleader must allege that it is in writing; otherwise it' is presumed to be oral.</p> <p>3. Contracts — Statute of Frauds — Agreement to Reconvey Real Estate. — A. parol agreement to reconvey real estate is within the Statute of Frauds and not enforcible.</p> <p>4. Contracts — Statute of' Frauds — Tender of Deed — Effect.—Where neither party is bound by an oral agreement to reconvey real estate the subsequent tender of a deed by the party to be charged is not sufficient to take the case out of the statute.</p>

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

<p>1. Municipal Corporations — Street Improvement. — Under tbe terms of tbe charter of cities of the fourth class, whether all or only a portion of the street,-as to width, shall be improved, is a matter within the discretion of the board of council, which discretion may be corrected, if abused.</p> <p>2. Municipal Corporations — Street Improvement — Ordinances?— When an ordinance for the original construction of a street, in a city of the fourth class, has been duly adopted, and the work has been done in substantial compliance with the terms of the ordinance, the abutting property will not be relieved from bearing the cost of the work on account of any error in the proceeding of the board of council, but the board of council or the court, in which a suit to enforce the liens is pending, will make all rules, corrections, and orders to do justice to all parties concerned.</p> <p>3. Municipal Corporations — Street Improvement — Ordinances.— When. an ordinance is adopted or a contract- entered into for the construction of a street, in a city of the fourth class, it is done in contemplation of the provisions and requirements of the statutes in force at the time.</p> <p>4. Municipal Corporations — Street Improvement. — The liability of abutting property for the costs of street improvements, ordered by the governing authority of a municipality, is determined by the statutes in force at the time, and arise from such statutes, as there is no liability for the costs of such improvements, except as created by the statute laws of the State.</p> <p>5. Municipal Corporations — Street Construction — Abutting Owners. —The present statutes were intended to empower cities • of the fourth class to cause streets to be constructed at the cost of the abutting property, and to require such property to bear the costs of the construction, where they are benefited thereby, and to prevent the defeat of the enforcement of the liens for such costs, where the property is equitably entitled to bear a portion of the burden, on account of any mistake or error of the council in its proceedings.</p> <p>6. Municipal Corporations — Street Construction — Abutting Owners. — The defense by the abutting property owner, to the effect that the work has not been done according to the contract, will not avail anything, when the work iias been accepted by the city, as having been done according to the contract, and it is made the duty of the court trying the case to make such orders, and to correct such errors as will result in justice to all parties concerned.</p> <p>7. Municipal Corporations — Street Construction. — In the absence of . fraud or collusion, the acceptance by the council of the work, as having been done according to the contract, is conclusive upon the property owner.</p>

<p>1. Appeal and Error.- — The right of appeal is a privilege which the legislative authority may grant, restrict, or take away, and is governed by the law in force at the time the appeal is granted.</p> <p>2. Appeal and Error — Amount in Controversy. — In an action for the recovery of money, only, when the actual amount in controversy, as shown by the record, is less than two hundred dollars, an appeal from a judgment granting or denying a recovery, will be dismissed upon or without motion.</p> <p>3. Appeal and Error — Amount in Controversy — Dismissal.—In an action for the recovery of money, only, when the real sum in controversy, as shown by the record, is less than five hundred dollars, and more than two hundred dollars, and the construction or validity of a statute or a section of the Constitution is not necessarily or directly put in issue, and it is not necessary for a correct decision of the case to pass on the validity of a statute or construe a section of the Constitution or statute, and the ends of justice do not require a reversal of the judgment, the appeal from a judgment granting or denying recovery will be dismissed upon or without motion, and without a written opinion, as to the merits of the controversy.</p>

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

<p>Judicial Sales — Sale to Enforce Lien Notes. — It is error to adjudge a sale of land to satisfy lien notes wlien they are not all due and no precipitation of the indebtedness has been declared.</p>

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

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

<p>Frauds, Statute of — Sufficiency' of Description of Land. — Where-a contract for the sale of land described it as “his farm of 210 acres on the Knoblick Road,” and the vendor owned 304.59 acres in several tracts contiguously located, parol evidence was inadmissible to show which particular 210 of the 304.59 it was intended to sell.</p>

<p>1. Officers — Railroad Policeman. — One appointed by the Governor at the instance of a railroad to act as railroad policeman, under Section 779a Kentucky Statutes, and fails to qualify as sucli by executing bond and taking the oath of office within 30 days after receiving notice of his appointment, vacates his office under the provisions of Section 236 of the Constitution and Section 3755, Kentucky Statutes.</p> <p>2. Officers — Railroad Policeman. — Where one is appointed railroad policeman and does not qualify for more than a year from the date of his appointment, held, the lapse of time unexplained. amounts to such an unreasonable delay as to raise the presumption that he failed to qualify in 30 days from the receipt of notice of his appointment.</p> <p>3. Officers — Railroad Policeman. — It was incumbent upon the police officer so appointed, and upon the railroad at whose instance he was appointed, to see and know that he qualified within the statutory period before employing him to act as policeman, and before permitting him to act as such.</p> <p>4. Officers — Action for Wrongful Arrest.. — Until he qualified in the manner and time provided he was neither an officer de jure nor de facto, and the mere fact that he was commissioned by the Governor will not serve as defense for him or the railroad who had him appointed, in an action against them to recover for an arrest wrongfully made by him.</p> <p>5. Officers — Railroad Policeman.. — Kentucky Statutes, Section 779a, creating the office of railroad policeman is not violative of Sections 93 and 107 of the Constitution in failing to limit the term of office for a time not exceeding four years, but the term of office is limited to four years.</p> <p>6. Officers — Arrest.—Where one in making an arrest, and deputizing another to aid him assumes to act by special appointment, and never qualified to act as such, he is not a known public officer, and both are liable as trespassers.</p> <p>7. Officers — Private Citizen Summoned to Make Arrest. — A private citizen may respond to the summons of a known public officer without inquiry if an offense has been committed, and without investigation as to regularity of process under which the officer acts and in such case the deputy is relieved of liability, although his chief may act wrongfully.</p> <p>8. Damages — Punitive Damages — Instructions.—Where the arrest and eviction from the train was without malice, and not wantonly or recklessly done, and there was no evidence of unnecessary force or oppression, it was error to give an instruction authorizing a finding of punitive damages.</p> <p>9. Damages — -Verdict Not Excessive. — For the same reason, held that a verdict for $4,000 damages was excessive.</p>

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

<p>1. Master and Servant — Unsafe. Appliance — Proximate Cause — Question for Jury. — In an action bjf a servant against his master for damages for injuries alleged to have'been caused by a defective coal cutting machine, evidence considered and held that the question whether or not the defective condition of the machine was the proximate cause of the injury was for the jury'.</p> <p>2. Master and Servant — Assumption of Risk. — A servant does not •assume the risk of injury 'fr'om a defective machine merely because its defective condition is known to or clearly observable by him. It must further appear that the danger therefrom is known to or clearly observable by the servant.</p> <p>3. Master and Servant — Assumption of Risk — Assurance of Safety.— Where the master assures the servant that a machine is safe, the servant may rely on such assurance and continue at work, unless the danger is so obvious that an ordinarily prudent person would refuse to work.</p> <p>4. Damages — Instructions—Life Tables — Error.—It is not error for the trial court to fail to admonish the jury that the life tables admitted in evidence are competent only for the purpose of showing the probable duration of life, in the "absence of a request for such an instruction.</p>

<p>1. Taxation Religious Societies — When Property of Exempt From ; Taxation. An office building owned by the Board of Education | of the Methodist Episcopal Church, and located in the city of I Louisville, is exempt from taxation, where the entire income therefrom is Used in the support and maintenance of a school owned and conducted by said Board, in Barpourville, Ky.</p> <p>2. Taxation — Religious Societies — When Property of Exempt From Taxation. — Section 170 of the Constitution, which exempts from taxation institutions of education not used or employed for gain , by any person or corporation, and the income of which is devoted solely to the cause of education, exempts the entire property of / such an institution wherever situated, and in whatever form its ' Investment may be found.</p> <p>73. Taxation — Religious Societies — When Property of Exempt Prom Taxation.- — -The Board of Education of the Methodist Episcopal i Church, which uses its property and income solely in the support of a school, is au institution of education not used or employed for gain, and its property is exempt from taxation undei* Section U0 tjf the Constitution.</p> <p>%. Taxation — Religious Societies — When Property of Exempt From Taxation. — A school owned and conducted by the Board of Education of the Methodist Episcopal Church, which charges a tuition fee which is not sufficient to pay the expenses of the school, and which requires no belief in the doctrines of the Methodist Church as a pre-requisite to the admission of its students, or the employment of its teachers, but which gives a preference to candidates for the ministry who may be recommended by the Quarterly Conference of the circuit or station where they hold membership, is an educational institution not used for gain; and real estate owned by the board and from which the revenue is derived to maintain the school, is exempt from taxation under section 170 of the Constitution. ,. <</p>

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

<p>Petition for Mandamus Against the Judge of the Jefferson Circuit Court.</p> <p>(Common Pleas Branch, Fourth Division).</p>

<p>1. Wills — Husband and Wife — Devise by Husband to Wife — Where a husband devises to his wife a tract of land upon which she has an. equitable lien, and otherwise generously provides for her during her life, they being childless, and his will shows his purpose that his relatives at her death shall receive the remainder of his estate, the farm devised in fee being greater in value than, the amount of her lien, the devise will be deemed a satisfaction of'her claim notwithstanding the general provision in his will for the payment of debts.</p> <p>2. Wills — Death of Parties Directly in Interest. — When the parties directly in interest have all died, the chancellor will generally give such effect to the old transactions between them as they themselves by their conduct have given.</p> <p>3. Wills — Construction.—The rule that where a legacy or devise is equal to or greater in value than a claim against the testator the legacy or devise will be deemed a satisfaction, like all exceptions to it, is only a rule of construction, and like all such rules must give way before the intention of the testator when it can be fairly ascertained.</p>

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

<p>Appeal and Error — Finding of Chancellor. — Where evidence is conflicting and upon a consideration of tbe whole case the mind is left in doubt and the Court of Appeals cannot determine with reasonable certainty that the chancellor has erred, the finding will not be disturbed.</p>

<p>Appeal and Error — Dismissal—Reinstatement.—Where an appeal has been granted by the clerk of this court, the case is not properly on tbe docket for hearing, within the meaning of Rule 3, of this court, until the appellee has entered its appearance or been. • summoned to answer the appeal as provided by the Civil Code-</p>

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

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

<p>1. Vendor and Purchaser — Waiver of Lien — Purchase Price. — Where, under a prior agreement, vendees in a deed to a corporation accept stock of the corporation as part payment for a conveyance of land, and the conveyance recites that the consideration is all paid and the rights of creditors and subsequent mortgagees intervene it was error to adjudge the vendees a purchase money lien'.</p> <p>2. Contracts — Option to Purchase — Heal Estate. — A contract for an option to purchase real estate at an agreed .price within a specified time may be sold, assigned or mortgaged.</p> <p>3. Estoppel — Estoppel by Conduct. — Where a person executes an obligation to a corporation he can not in an action on it by the corporation deny that such a corporation had an existence, nor can he set up as a defense that the corporation had no power to contract, unless the contract be such as is expressly forbidden by law.</p>

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

<p>1. Statutes — Title of Act Denouncing Stealing of Fowls. — The Act of March 17, 1904, Kentucky Statutes, Section 1201c, fixing a penalty for stealing fowls of the value of two or more dollars, and entitled “An act to regulate crime and fix the punishment therefor” is not violative of Section 51 of the Constitution which provides that the title of the Act shall express the subject thereof.</p> <p>2. Constitutional Law' — Constitutional Guaranty Against Cruel Punishments. — The Act of March 17, 1904, fixing a penalty of not less than one nor more than five years in the penitentiary as the punishment for the crime of stealing fowls of the value of two or more dollars does not contravene the constitutional guaranty against cruel punishments preserved in Section 17 of the Constitution.</p>

<p>1. Wills — Defeasible Pee in Remainder. — Where a testator devised his estate to his wife for life with remainder to his brother and' sisters or such of them as may be living at the death of the life tenant, the devisees took under the will a fee simple estate in remainder, but this was subject to be defeated by their deaths before that of the life tenant.</p> <p>2. Remainders — Sale of Property Under Order of Court. — Such an estate may be sold under Section 491a of the Civil Code; and if the judgment direct a reinvestment of the proceeds, the purchaser takes an absolute title notwithstanding the fact that children of the devisees to whom the property would revert in the event of the death of all the remaindermen before that of the life tenant, were not made parties to the action. In case of such lapsing of the remainder and defeat of the fee and consequent reverter of the property to the heirs-at-law of the testator, they may still look to the proceeds of sale or the property therewith purchased.</p> <p>3. Judgment — Collateral Attack — Pleading.—One who attempts a collateral attack upon a judgment must show by his pleading the proceedings had, in such manner as to enable the court to determine whether the judgment is void; this must be done to overcome the presumption of regularity.</p>

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

<p>1. Municipal Corporations — Construction of Streets and Sewers by Town of Sixth Class on Ten-year Bond Plan — Work May Be Done by Apportionment of Cost on Abutting Real Estate — Effect of Acceptance of Work by Board of Trustees.— Under Section 3706, Kentucky Statutes, the boards of trustees of towns of the sixth class are given authority to construct both streets and sewers and provide that the expense incurred in so doing may be paid by a local assessment on abutting property, not exceeding fifty per cent, of the value of the ground, after such improvement is made, excluding the value of the buildings and other improvements upon the property improved. The plan or method of improvement, as well as the necessity therefor, is a matter solely within the discretion of the board of trustees, whose action in respect thereto is beyond review by the courts, in the absence of a showing of fraud or corruption on the part of that body in the adoption or execution of the plan; and where the work as completed is accepted by the board of trustees, their judgment of the sufficiency of the work is conclusive, in the absence of a showing that they were guilty of fraud or mistake. Nor can the complaint of the owner of abutting property that the work of street construction was done in part under one contract and mainly completed under another, affect the right of the municipality to enforce its lien against his property for its due proportion of the cost of such work. The fact that a prior ordinance had been passed to do the work for less money can constitute no defense, the contractor having become insolvent after doing a small part of the work and the ordinance under which it had been let to him having been repealed, the necessity for the letting of another contract and for the completion of the worki was a matter to be determined by the board of trustees. Besides, if the owner of the abutting property was prejudiced by such action on the part of the board of trustees, he must allege and prove, not only that the cost to him and other property owners was increased by the change of contracts, but also that under a different, and the proper method of apportionment, he would be required to pay less.</p> <p>2. Municipal Corporations — Conveyance to Evade Assessment — Effect of — When Disregarded. — Where the owner of property, after obtaining knowledge of the purpose of the municipality to improve a street abutting thereon, but before work upon the street was commenced, by deed conveyed to his wife a strip of ground from the front of the lot eight feet in width, reserving in the deed the use of it as a means of ingress and egress to and from the remainder of the lot, upon which his residence is situated, and providing that no fencing or sidewalks should be constructed thereon, such conveyance did not have the effect to relieve that portion of the lot retained by him of the lien created thereon by statute for its proportionate part of the cost of constructing the abutting street.</p> <p>3. Municipal Corporations — Counterclaim—Cannot be Pleaded by the Owner of Abutting Property in an Action by a Municipality to Subject the Property to Its Part of the Cost of Constructing a Street in Front Thereof. — Damages for injury to property against which an assessment is levied, may not be set up as a counterclaim in an action by the city to enforce the assessment.</p>

<p>1. Appeal and Error — Bill of Exceptions — Instructions.—Although the clerk has copied in the record what purports to be the instructions given on the trial, if they are not embraced in the bill of exceptions or identified by an order of the court, they will not be considered.</p> <p>2. Appeal and Error — Verdict.—This court will not set aside the verdict of the jury where there is evidence to sustain it, although the preponderance of the evidence may'be on the other side.</p>

<p>1. Fraudulent Conveyances — Debtor and Creditor. — Under Section 1907, Kentucky Statutes, a voluntary conveyance by a debtor to his wife is void as to his existing creditors; where the debtor previous to the date of the conveyance had entered into a contract out of which certain liabilities grew, the conveyance is void as to such liabilities.</p> <p>2. Evidence — Finding.—Facts examined and held to support the finding of the chancellor.</p>

<p>1. Municipal Corporations — Cities of the Fourth CHass — Street Improvements — Curbing and Guttering — Liability of Abutting Property — Kentucky Statutes, Sections 3565' and 3566. — Under Sections 3565 and 3566 of the Kentucky Statutes., being a part of the charter of cities of the fourth class, the cost of curbing and guttering is assessable against the abutting property, regardless of whether the work of curbing and guttering is done as a part of the carriageway or the sidewalk, or is provided for in the same ordinance providing for the improvement of the carriageway or in a separate ordinance.</p> <p>2. Municipal Corporations — Ordinance—Subjects and Titles — Conflict Between Title and Body of the Act. — Where the title of an ordinance providing for an issue of bonds provides for their issue for the reconstruction ot a street, including the curbing and guttering, but in the body of the act no reference is made to tne curbing and guttering, the body of the act controls.</p> <p>3. Municipal Corporations — Street Improvements — Double Taxation. —Where bonds are voted and issued by a city for .the reconstruction of a street, and the proceeds are paid to the contractor for the work done, exclusive of the cost of the guttering and curbing, it is not double taxation to assess the cost of the curbing and guttering against.the abutting property owners.</p>

<p>1. Railroads — Fires—Actions Against Two Companies for Damages for — Election.—Where a railroad company which owned the track, and another railroad company which used the track, were jointly sued for setting fire to a barn belonging to the plaintiff, the trial court' properly declined to require the plaintiff to elect against which defendant she would prosecute her suit.</p> <p>2. Railroads — Circumstantial Evidence. — Direct evidence is not indispensable to a recovery in a suit against a railroad company for negligently setting fire to a barn located near the railroad track. In such a case circumstantial evidence is equally as sufficient as direct evidence would be, when the circumstantial evidence connects the sparks from the passing train with the fire.</p> <p>3. Negligence — Pleading.—It is a general rule of pleading that in alleging an injury to any kind of property, it will ordinarily be sufficient to state, in general terms, that the injury was caused by the negligence or carelessness of the defendant or his servants, without alleging all the circumstances necessary to show negligence; but, where the petition specifies the acts of negligence relied upon, the plaintiff will be confined, in his proof, to the acts specified, and cannot recover by showing a different act of negligence.</p> <p>4. Railroads — Action Against Two Companies for Damage by Fires— . Verdict. — Where a railroad company owning the track, and another railroad company using the track of the former company, were sued jointly for negligently setting fire to a barn located near the track, the failure of the jury to say, in their verdict, which defendant caused the fire, was not prejudicial to the defendant which owned the track and was primarily liable to the plaintiff for the negligence of either defendant.</p>

<p>1. Animals — Agisters’ Liens. — Agistment is a species of bailment and cannot arise where the animals were not in the possession of the person asserting the agister’s lien. Where the owner of animals grazed them on the lands of a tenant, the .landlord could not claim an agister’s lien tbereon.</p> <p>2. Landlord and Tenant — Leases.—A lease is a conveyance of real property which operates to divest the owner for a time of a certain estate therein, leaving him only the reversion.</p>

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

<p>1. Divorce — Abandonment—Allowance for Children. — Where the proof in a divorce suit sustained the wife’s charge of abandonment and cruel treatment, and entitled her to the care and custody of the infant children, and where the court granted divorce on her plea, and awarded custody of the children to her, and also held that the husband’s charge of adultery was groundless, it was error to limit the allowance in behalf of the children to one year.</p> <p>2. Divorce — Alimony.—Lack of means other than daily earnings of the husband will not justify a failure to award alimony to the wife where she has no estate and is not in fault.</p>

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

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

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

<p>1. Trial — Legal Issues — Transfer for Jury Trial — Rights of Parties.— In an equitable action between the original contractor and the owner of the property, involving the validity of a mechanic’s lien, where the owner claims damages because the work was not done in a workmanlike manner, either party is entitled, as a matter of right, to a jury trial of the disputed issues of fact, and it is error to refuse a jury trial where there is sufficient evidence to take the case to the jury.</p> <p>2. Appeal and Error. — Trial—Transfer of Case for Jury Trial — Absence of Evidence — Error.—A judgment will not be reversed for error of the trial court in refusing to transfer the case to the common law docket for trial of certain disputed questions of fact, where the evidence is not in the record and it is impossible to tell whether there was sufficient evidence to take the case to the jury.</p>

<p>.1. Municipal Corporations — Franchises—Ordinances—Construction.— A franchise being a special privilege bestowed by the government upon an individual, and which does not belong to the citizens generally, as a matter of common right, if there is any ambiguity in the ordinance granting the franchise it will be construed more strictly against the grantee.</p> <p>2. Municipal Corporations — Ordinances—Grant of Franchise. — An ordinance of a city council granting a franchise for a term of years, without due advertisement, and without receiving bids therefor publicly, and awarding it to the highest and best bidder, is void and the grantee takes nothing thereby.</p> <p>3. Municipal Corporations — Ordinances—Franchises.—An ordinance of a city council which undertakes to grant a franchise, the period of the exercise of which does not expire until more than . twenty years after its granting, is void.</p> <p>4. Electricity — Right to Produce Not Franchise. — The right to produce and sell electricity as a commercial product is not a prerogative of government, but is a thing which is open to all, and for that reason is not a franchise.</p> <p>5. Municipal Corporations — Electricity—Franchise.—The right to use the streets, public places, and public ways of a municipality, for the erection of the poles, wires and apparatus of an electric light plant for the delivery of light and power to the consumers of it, is a franchise, which the municipality may grant.</p> <p>6. Municipal- Corporations — Franchises.—Neither can a municipality grant the privilege to one to use its streets and alleys to the exclusion of another to whom it may grant a franchise to use them for the same purpose.</p> <p>7. Municipal Corporations — Electric Light Franchise — When Void. — • An ordinance of the council of a city of the fourth class granting a franchise to an electric light company to use its streets and alleys for ten years, but the period of its exercise not to commence until four and one-half years after the granting of the franchise, is void, as against sound public policy.</p> <p>8. Municipal Corporations — Public Policy — Public Nuisance. — Public ipolicy is the same as the policy of the law, and is the principle which holds that no one can lawfully do a thing which tends to be injurious to the public, or is contrary to the public good, and must be found in the Constitution and statutes of the State and in the decisions of the courts.</p> <p>9. Contracts — When Court Not Authorized to Declare Void. — Where there is no legislative prohibition of an agreement or contract, a court is not authorized to declare it void, unless it has a tendency to injure the public or is contrary to sound policy and good morals.</p> <p>10. Municipal Corporations — Franchises—Regulation of Grant. — The policy of the legislation in this State has been to so regulate the granting of franchises, that the benefits arising from their exercise may be shared by the public, as well as the grantees.</p> <p>11. Municipal Corporations — Franchises—Purchaser of. — The purchaser of a franchise should have a reasonable time before the beginning of the term of his franchise to make the necessary preparations to exercise the franchise in a way beneficial to himself and patrons, but the time should not be so great, as to indicate that the arrangement looks more to his benefits than to those of the public.</p> <p>12. Municipal Corporations — Contracts.—The law does not imply any obligation or promise to pay by a municipal corporation, on account of benefits received.</p> <p>13. Municipal Corporations — Contracts.—Those who make contracts with municipal corporations must, at their peril, know the powers of the officers of such corporations to make contracts and the manner in which they must make them.</p> <p>14. Electricity — Withdrawal of License. — An electric light plant, which is a licensee in a municipality, is entitled to a reasonable-notice of the withdrawal of its license, and a reasonable time in which to move its property from the streets.</p>

<p>1. Sales — Machinery—Contract Providing for Trial by Purchaser — - Right to Rely on Tests Made by Others. — Where a contract for the sale of machinery gives to the purchaser the privilege of trying the machinery for a period of six months, and of then returning it if not satisfactory, the purchaser must act in good faith and make the trial himself and cannot defeat a recovery of the purchase price by pleading that others similarly situated had tested the machinery and found it unsatisfactory.</p> <p>2. Pleading — Fraud or Mistake — -Demurrer.—An answer pleading a •collateral parol agreement varying the terms of a written contract, without alleging that the agreement relied on was omitted therefrom by fraud or mistake, is bad on demurrer.</p> <p>S. Pleading — Consideration.—Where, under a contract for the sale of machinery the rights of the seller have accrued, a subsequent promise to send a man to install machinery was without ■consideration; and a pleading that merely alleges concurrent promises on the part of the seller and purchaser, without alleging that one is in consideration of the other, is bad on demurrer.</p> <p>#-. Corporations — Sales Through Agents — Interstate Commerce— Foreign Corporations — Regulations—Section 571 Kentucky Stat■utes. — Section 571, Kentucky Statutes, prohibiting a foreign corporation from engaging in business in Kentucky without giving the location of its office within the State, and the name of its officer or agent on whom process might be served, is inoperative as to foreign corporations engaged purely in interstate commerce and does not prevent a recovery on- contracts growing out of interstate transactions.</p>

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

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

<p>1. Bills and Notes — Checks—Payment of Money by, Raises no Presumption of Loan. — The mere payment of money by check does not authorize the presumption that the amount received thereon by the payee was a loan from the drawer of the cheek.</p> <p>2. Depositions — Exceptions to — When Treated as Waived. — When exceptions filed to the depositions of witnesses are not passed on in the circuit court, or, if passed on, no exception was taken to the ruling of that court, upon appeal, the Court of Appeals will regard such exceptions as having been waived and treat the case as if no question had been made aá to the competency of the witness or witnesses, or as to the admissibility of his or their testimony.</p>

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

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

<p>1. Negligence — Master and Servant — Damages.—Where the engineer and conductor were guilty of negligence in leaving a car on the switch too close to the main track, and shortly afterwards the fireman was operating the same engine, by direction of the engineer, and in his place, while temporarily absent, and the fireman was injured by coming in contact with the car, not knowing it was there, the master is liable in damages.</p> <p>2. Negligence — Injury Not Negligence of Fellow Servant. — Although the fireman at the time he was injured was performing the duties Of the engineer and although he was injured as the result of the engineer’s negligence, it was not the negligence of a fellow servant, for at the time of the negligent act the person injured was a fireman.</p> <p>3. Negligence — Gross Negligence — Railroads.—It was gross negligence to leave the car on the switch too close to the main track. The fact that the court authorized a recovery for ordinary negligence is not reversible error in view of the moderate verdict and freedom of the record from other errors.</p>

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

<p>1. Appeal and Error — Jury—Panel—Motion to Discharge — Review.— Where, on motion to discharge the jury panel on the ground that a sheriff summoned more bystanders than the statute authorizes, the facts appear only in the motion itself and are not supported by affidavits properly made a part of the record, or verified by order of court, or certified to in the bill of exceptions, the action of the trial court in overruling the motion is not subject to review.</p> <p>2. Witnesses — Attorneys—When Competent to Testify. — An attorney cannot testify concerning any communication made to him by his client in that relation, or his advice thereon, without his client’s consent. In all other cases he is a competent witness for or against his client. ■</p> <p>3. Damages — Evidence.—In an action for damages, evidence examined and held sufficient to sustain the verdict.</p> <p>4. Trial — Instructions—Where the real issues are properly covered by a given instruction, it is not prejudicial error to refuse to give certain instructions offered by the defendant.</p>

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

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

<p>Municipal Corporations — Streets—Abutting Owners — Constitutional Law. — A fifth-class city ordinance providing for street construction under section 3643, Kentucky Statutes, at the expense-of the abutting owners in proportion to front footage instead of superficial area is not for that reason violative of the Constitution of the United States or of ¿he State of Kentucky.</p>

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

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

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

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

<p>1. Contracts — Restraint of Trade- — Common Law Rule — Monopolies. —If a contract isi made that suppresses competition and controls the market, and that contract is entered into between those who have theretofore engaged in competition in the market sought to be controlled, it is a contract in restraint of trade according to the common law in force in this State.</p> <p>2. Monopolies — Trusts—Pools.—The act of 1890, now sections 3915-3921, of the Kentucky Statutes, prohibiting the formation of trusts, pools and monopolies for the purpose of regulating, controlling or fixing the price of an article, is in full force and effect in this State.</p> <p>3. Monopolies — Trusts—Pools—Restraint of Trade. — Sections 3915-3921, of the Kentucky Statutes, prohibiting trusts, pools and monopolies, and the common law doctrine of restraint of trade, are not in conflict, and whichever is the most available may be invoked for the purpose of staying the unlawful activities of any trust, pool or monopoly entered into for the purpose of controlling' the market or regulating or fixing the price of property.</p> <p>4. Constitutional Law — Section 198 of the Constitution — Statutes.— Sections 3915-3921 of the Kentucky Statutes are not in conflict with section 198 of the State Constitution.</p> <p>5. Constitutional Law — Section 198 of the Constitution. — Section 198 of the State Constitution is not self-executing. It is merely a direction to the legislative department of the State to enact such laws as may be necessary to prevent the conditions described in the section.</p> <p>6. Constitutional Law — Statutes—Invalidity of. — The acts of 1906, 1908 and 1910, now sections 3941a-3941d, of the Kentucky Statutes, are unconstitutional and void.</p> <p>7. Statutes — Effect of Uncertainty in. — A statute that makes the test of liability in, a criminal case or the enforcement of a right growing out of a contract in a civil case depend on the question, whether the price of an article has been enhanced above its real value or -decreased below its real value, is void for uncertainty both in respect to criminal matters as well as civil rights and liabilities.</p> <p>8. Statutes — Uncertainty or Indefiniteness in — Effect.—Although a statute may be so uncertain or indefinite as to prevent the enforcement of civil rights and liabilities arising thereunder, this' will not affect the enforcement of these rights if they may be rested on common law rules.</p> <p>D. Statutes — Effect of Unconstitutional Amendment. — The validity of a constitutional act cannot be impaired or affected by an unconstitutional amendment. The amendment may be held invalid but the act it amends, if free from constitutional objection, will stand as it did before the amendment.</p> <p>10! Overruled Cases. — The case of the Com. v. International Harvester Co., 131 Ky., 551, is overruled.</p>