Volume 167 — Kentucky Reports

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

<p>1. Negligence — Cause of Injury. — Where the evidence in an action to recover damages for the negligent killing of an intestate requires us to theorize as to the manner in which the deceased met his death, and the theories advanced are equally plausible, all arising upon mere conjecture, a recovery cannot be had.</p> <p>2. Evidence — Admissions—Competency.—Evidence of admissions asserted to have been made by a defendant is not admissible where the witness by whom such admission is sought to be proved, is unable to state that the person who made the statement sought to be proven was in fact one of the defendants.</p>

<p>Damages — Inadequate and Excessive Damages. — A verdict ol ?9,500 held not excessive in an action by a railroad brakeman for permanent injuries whereby he lost the use of a leg, there being but little evidence from which the jury could have reduced the damages on account of contributory negligence, the action being brought under the Federal Employers’ Liability Act.</p>

<p>1. Trial — Jury—Discharge of and Empaneling. — Under section 2261 of the Kentucky Statutes, trial courts are authorized to discharge only the regular first panel of the jury after they shall have served one week, and empanel another jury; they have no authority to discharge the second jury thus empaneled after a week’s service, and empanel a third jury for the succeeding week.</p> <p>2. Master and Servant — Assumption of 'Risk. — Where the danger from a mine roof was so obvious to the servant that no man of ordinary prudence would continue to work under the circumstances, the servant assumed the risk when he undertook the work, and the master is not liable for a resulting injury to the servant.</p>

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

<p>1. Taxation — Public Charities. — A hospital which was founded and endowed as a charity and is so conducted and the public receives all the benefits and no private gains received by anyone, and none intended to be received by anyone, it is purely public charity and not subject to- taxation.</p> <p>2. Taxation — Public Charities. — The fact that a hospital so founded and endowed receives compensation from some of the patients does not change its status as a purely public charity.</p>

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

<p>Receiver — Breach of Contract. — A defendant is not liable- individually for bis breach of a contract made by him as receiver.</p>

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

<p>1. Boundaries — Waters and Water Courses. — Where the line of a grant runs to the bank of a stream and by it or along the stream or the bank, the grant extends to the middle thread of the stream, unless there is something in the description which clearly ex-eludes the intermediate space between the edge of the bank and the thread of the stream.</p> <p>2. Navigable Waters — Boundaries—Riparian Rights. — A riparian owner is the owner of all the accessions made to his lands by the waters of a stream receding from it and leaving the land uncovered, which had theretofore been covered with water, or by deposits made between his bank and the middle thread of the stream, so as to place the bed of the river above the surface of the water.</p> <p>3. Navigable Waters — Islands—Riparian Rights. — The owner of an island in a river has the same riparian rights as an owner upon the main land.</p> <p>4. Limitation of Actions — Section 2513, Kentucky Statutes — Void Patents. — The seven-year statute of limitations provided -for in Section 2513, Ky. Statutes, does not apply to nor protect an occupant under a void patent, as the claimant under such a patent has no title deducible from the Commonwealth.</p> <p>5. Boundaries — Possession.—Where one enters into possession of a tract of land, claiming title under a deed or patent, with the intent to take and hold possession to the extent of the boundaries of his deed or patent, he is in the actual adverse possession of the entire tract to the boundaries of his deed or patent, to the extent that same is not in the actual possession of another.</p> <p>6. Boundaries — Patents—Possession—Extent of. — One claiming under a deed or patent, though void, may show it in evidence as proof of the extent of his possession.</p> <p>7. Boundaries — Possession.—One without color of title is not in the possession, of land which he occupies, except to the extent of his enclosure, or to the extent of a well-defined, marked, or natural boundary, to which he claims.</p> <p>8. Boundaries — Possession.—One holding possession and claiming title under a junior patent is not in the actual possession of any more of the boundary than to the extent of his enclosure, or to a well-defined and marked or natural boundary, to which he claims, as against one who holds under a senior patent, and is in the actual possession of the lands embraced by his boundary.</p>

<p>1. Charities — Purpose and Objects — Gifts.;—A charity, in its legal sense, is a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature.</p> <p>2. Taxation — Charities—Public Charities. — “Parr’s Rest,’’ a permanent Home for old and destitute women residents and citizens of the State of Kentucky, who have no estate of their own, and who are unable to provide for themselves the necessaries of life, is an institution of purely public charity, and is, under Section 170 of the Constitution, exempt from taxation.</p> <p>3. Taxation — Charities.—Where the executors under a will which created a charity, withheld the funds so devised from the trustees of the charity for several years pending a contest of the probate of the will, the equitable title to the property so. devised was in the trustees of the charity during the time it was so withheld from them, and was exempt from taxation.</p>

<p>1. Taxation — Omitted Property — Assessment.-—The county court, in a proceeding by a revenue agent to cause property to be assessed for taxation, which has been omitted by the assessor and board of supervisors, acts in a ministerial capacity, except that in determining whether the property has been omitted and its value, and in regulating the proceedings in his court, he acts judicially and the judgment is the judgment of a court.</p> <p>2. Taxation — Omitted Property — Assessment.—In a proceeding by a revenue agent to cause omitted property to be assessed for taxation, the court must try the issues and decide the causes, and can not call a jury for that purpose over the objection of a litigant.</p> <p>3. Taxation — Omitted Property — Assessment.—A special proceeding by a revenue agent to cause omitted property to be assessed for taxation is not an action of equitable cognizance in which the court may call a jury to pass upon the facts in controversy, in an advisory character.</p> <p>4. Jury — Right to Trial by Jury. — The constitutional right to a trial by jury means a trial according to the course of the common law, and this right only exists where by the common law a jury trial was customarily had.</p>

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

<p>1. Insurance — Fire Insurance — Violation of Condition in Policy— Effect of Discontinuance of Violation During Life of Policy — When Policy Revived. — The violation of a condition in a policy of insurance which authorizes a forfeiture thereof, merely suspends the insurance during the violation, and if the violation is discontinued during the life of the policy, and is non-existent at the time of loss, the policy revives, the insurance is restored, and the insurer is liable, although he has never consented to the violation of the conditions in the policy, and such violation has been such that the insurer could have declared a forfeiture thereof.</p> <p>2. Insurance — Clause of Policy Providing for Forfeiture in Event of Change in Title, or Assignment of Policy Without Consent of Insuíer — Not Violated by Sale of Property or Assignment of Policy Without Insurer’s Consent, if Title to Property and Possession of Policy Re-acquired by Assured Before' Loss. — Where a policy of fire insurance contains a clause providing: ‘‘If the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, the property * * * covered in whole or in part by this policy * * * or in case any change takes place in title or if this policy be assigned * * * then in each and every one of the above cases this entire policy shall be null and void, unless otherwise provided by agreement endorsed thereon,” and the insured sells the property and assigns the policy during the existence of the policy, without the consent of the insurer, the insurance does not, from that fact alone, become absolutely void, but is merely suspended; and if the assured re-acquires the title to- the property and possession of the policy before the loss, the policy is renewed and the insurer becomes again liable.</p>

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

<p>Wills — Devise to Three Sons — Absence of Issue — Survivor to Take. —Where a will devised certain lands to the three sons of the testator and in the last clause provided that- “the estates taken by my sons in the fourth and fiftt) clauses shall only be life! estates, and in case they, or either of them, die without heirs of their bodies, immediately at their death, the land hereby willed for life shall go to my other living'children,-and at the time should any of my other children be dead leaving heirs of their body, said heirs shall take the land, or any interest therein, the same as their father would have done if living.” Held, that the survivor of the three sons, the other two having died without issue, is invested with a fee simple title to the devised realty.</p>

<p>1. Attorney and Client — Contract of Employment — Effect of Solicitation. — Mere solicitation on the part of an attorney, unaccompanied by fraud, misrepresentation, undue influence or imposition of some kind, or other circumstances sufficient to-invalidate the contract, is not of itself sufficient to render a contract between an attorney and client void on the ground that it is contrary to public policy.</p> <p>2. Attorney and Client — Lien on Judgment — Extent.—Where an attorney prosecutes a suit to judgment, a solvent judgment debtor cannot, in the absence of the creditor’s attorney, settle with the judgment creditor for less than the amount of the judgment and deprive the attorney of any portion of the fee to which he is entitled' under and by virtue of bis contract of employment, but is-liable for tbe whole of such fee.</p>

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

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

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

<p>1. Statutes — Construction, of — Substitution of Words. — Where the Legislature inadvertently used the word “magistrate” in place of the word “court,” this court may, under well settled rules of statutory construction, substitute the word court for the word magistrate.</p> <p>3. Statutes — Constitutional Law — Statute Unconstitutional in Part. —Where there are a number of severable sections in a statute, one of which is unconstitutional, a person proceeded against under the statute cannot avail himself of the invalidity of this section when the proceeding against him is based on other valid sections. No person can complain that a part of a statute is unconstitutional unless it is sought to impose upon him some liability under authority of that part averred to be invalid.</p> <p>3. Statutes — Constitutional Law — When Invalid Section of Statute May Be Stricken Out. — When there are distinct and separate provisions in an act, one of which is unconstitutional, this invalid section may be stricken out unless it is so related to or connected with the other sections as that it cannot be eliminated and leave a complete act in such form as will accomplish the purpose of the legislation.</p> <p>4. Constitutional Law — Acts Not to Take Effect on Other Authority Than That of General Assembly. — Under section 60 of the Constitution, providing that no other laws than those therein mentioned shall take effect upon the approval of any other authority than that of the General Assembly, a statute making it an offense to sell or use branded property is not in violation of this section.</p> <p>5. Constitutional Law — Act Not to Take Effect on Other Authority Than That of General Assembly. — Statutes that become effective only when certain described conditions arise are not in the meaning of the Constitution dependent upon the approval of any other authority than that of the General Assembly. They merely lie dormant until called into active force by the existence of the • conditions under which they were intended to operate.</p> <p>6. Constitutional Law — Limitation on Power of Court to Declare Statute Invalid. — Laws cannot be disregarded merely because they are supposed to be repugnant to some governmental principles that lie outside of constitutional limitations. When the validity of legislation is challenged in the courts, the inquiry is limited to the questions, what provision of the Constitution does it violate? What does it do or propose to do that the Constitution forbids?</p> <p>7. Constitutional Law- — Class Legislation. — A statute making it a penalty to use or traffic in branded bottles or containers, and giving the owners of these bottles and containers special proceedings to protect them against loss, is not objectionable class legislation.</p> <p>8. Constitutional Law — Class Legislation. — It is competent for the ' Legislature to create classes and deal with these classes both with respect to civil and criminal liabilities separately, the only limitation being that the classification must not be arbitrary and must rest upon some reasonable difference existing between the class selected for treatment and other classes of persons and property.</p> <p>9. Constitutional Law — Class Legislation — Protection of Private In-’ terest. — A statute is not objectionable on the ground that it is unreasonable class legislation merely because it affords protection to private rights, if it also affords protection to the public.</p>

<p>1. Vendor and Purchaser — Notice of Equities. — In the absence of actual or constructive notice of equities claimed by third parties, a purchaser, for value, who has acquired the legal title by conveyance, recorded or lodged for record, has superior claim.</p> <p>2. Appeal and Error — Finding of Chancellor. — The chancellor’s judgment will not be disturbed on appeal unless against the preponderance of the evidence.</p>

<p>1. Trusts — Devise of Real Property. — Where the testator bequeathed to a trustee 200 shares of turnpike stock to be held in trust for his grandson “for and during his natural life,” and directed the trustee to take charge of the property and collect the dividends and use the proceeds thereof for the benefit .of his grandson “for and during his natural life,” the fact that the trustee sold the turnpike stock and invested the proceeds in a house and lot, taking title to himself as trustee, does not change the nature of the trust estate nor impose upon it the limitations contained in the will with respect to specific real estate therein devised.</p> <p>2. Trusts — Cestui Que Trust. — The- court properly adjudged that the trustee could join the cestui que trust, and wife, in a deed and convey fee simple title to the house and lot, but erred in adjudging that the trust was performed or terminated, and that the cestui que trust was entitléd to the proceeds. It is not a mere naked or passive trust.</p> <p>3. Trusts — Naked or Passive Trust. — A naked or passive trust is one in which the trustee is a mere depository of the property with no active duties to perform.</p> <p>4. Trusts — Cestui Que Trust — Control of Real Estate. — The fact that greater limitations were placed upon the cestui que trust’s right to use and control the real estate therein devised does not lessen the duties of the trustee as stipulated in the will and codicil with reference to the turnpike stock, and it is no less an active trust on that account.</p>

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

<p>1. Master and Servant — Assumption, of Risk. — In an action to recover for injury received while working as a section hand by slivers or sprawls flying from a spike maul or sledge hammer used by another section hand and furnished by the company, if the plaintiff knew of the defective condition of the spike maul and the danger of slivers or sprawls flying therefrom, and, with this knowledge, continued to work in close proximity to the defective spike maul without obtaining from the defendant or its foreman •an assurance that the defect would he remedied or the danger removed, then he did so at his own risk, and the court erred in overruling demurrer to the amended answer of defendant setting up such plea of assumed risk.</p> <p>,2. Trial — Jury, Bystanders. — For the trial of a case in the circuit court it is improper to summon more than three bystanders to fill vacancies on the regular panel. If more are needed for the trial of that case their names shall he drawn from the drum or wheel case.</p> <p>3. Damages — Impairment of Power to Earn Money. — Where the petition alleges loss of time and permanent impairment of plain? tiff’s power to earn money the court should instruct the jury that the allowance, if any, for the permanent impairment of power to earn money should begin when the allowance, if any, for time lost ended.</p> <p>4. Master and Servant — Appliances.—The court .by its instructions imposed upon defendant the absolute duty to furnish the section men tools, etc., which were reasonably free from defects.- It •should only have required defendant to exercise ordinary care in this regard.</p>

<p>1. Contracts — Constructi9n of Mineral Lease. — An executory contract, whereby a landowner leased the oil, gas and mineral privileges of his land for a royalty of one-eighth of the profits to be derived from the oil, gas and minerals, but which did not require the lessee to develop the oil, gas and mineral privileges within any specific time, will not be specifically enforced, because it is unilateral and lacks mutuality of obligation'.</p> <p>2. Mines and Minerals — Construction and Operation of Lease. — Generally, leases of land for the exploration and development of oil, gas and minerals, are executed by the lessor in the hope and upon the condition, either express or implied, that the land shall be developed for oil, gas and minerals; and the lessee will not be permitted to continue to hold it any considerable length of time without making any effort to develop it, according to • the express or implied purposes of the lease.</p> <p>3. Mines and Minerals — Construction and Operation of Lease. — After a delay of ten years by the lessees under a lease granting them the oil, gas and mineral privileges in land in consideration of a royalty only, without any attempt upon the part of the lessees to develop the oil, gas and mineral privileges, the lessors may annul the lease, without notice or demand.</p>

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

<p>1. Trial — 'Dismissal Without Prejudice — Section 371, Civil Code.— Under section 371 of the Civil Code of Practice, the plaintiff may dismiss his action, without prejudice, at any time before the final submission of the case to the jury.</p> <p>2. Trial — Submission to Jury. — A case is finally submitted to the jury within the meaning of section 371 of the Civil Code of Practice, when all questions of law have been disposed of by the court, and the instructions and papers pertaining to the case have actually been delivered to the jury, and they are. authorized without further interposition or control of the court, to proceed to a decision of the case.</p> <p>3. Trial — Dismissal Without Prejudice. — Where the court, at the conclusion of all the testimony verbally sustained the defendant’s motion to peremptorily instruct the jury to find for the defendant, and counsel for defendant had prepared such an instruction and read it in open court and in the .presence of the jury, but counsel for plaintiff moved the court to dismiss the action without prejudice before the instruction was delivered to the jury, the case had not been finally submitted to the jury, and the court properly sustained plaintiff’s motion to dismiss the action without prejudice.</p>

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

<p>1. Master and Servant — Negligence—Contributory Negligence. — ■' Where the servant is injured or killed while in the employ of the master, neither negligence on the part of the master nor contributory negligence on the part of the servant will be presumed; the negligence of the former or the contributory negligence of the latter must be established by proof of acts constituting such, negligence, or of facts from which it may legitimately be inferred.</p> <p>2. Master and Servant — Assumption of Risk by Servant — When Doctrine of Applicable. — The doctrine of the assumption of risk rests upon an agreement of the servant with his master, express or implied, from the character or circumstances of his employment, that the master shall not be liable for any injury incident to the-service, resulting from a known or obvious danger arising from the nature of the service. Where the servant knows the risk to which he is exposed and appreciates the danger thereof, or the risk is so obvious as that ordinary care upon his part would have enabled him to know it, he will, as a rule, be held to have assumed such risk. He does not, however, assume such risks as are created by the master’s negligence, nor such as are latent or are only discovered at the time of the injury. To constitute an assumption of risk knowledge of the risk on the part of the servant must come in time to be of use.</p> <p>3. Master and Servant — Death of Servant by Falling of Scaffold — Effect of Servant’s Knowledge of Unsafe Condition of Scaffold. — Ordinarily, a painter will be regarded as charged with the duty of inspecting a scaffold he is required to use in his work, and of knowing whether its use by him will be safe; but when the scaffold is. constructed by his superior in the master’s service or under the latter’s direction, the servant will not be charged with the duty of inspection, but has the right to assume that his superior has made; it reasonably safe for the use he is to make of it, unless the danger of using it was well known to him or so obvious that one of ordinary intelligence and prudence, situated as he was, must or ought to have known the risk. Although the seryant may know of defects in an appliance with which he is required to work, or of the danger of making use thereof, if, by the assurance or representations of the master or his superior in the latter’s service as to its being safe for , use, the servant is lulled into a sense of security and continues the use and is killed by reason of the defects, his personal representative may recover, unless the danger of using it was so obvious, immediate or constant as to be known to the servant, and be nevertheless continued its use.</p> <p>4. Master and Servant — Incompetent Fellow Servant — When Master Responsible For Negligence of. — The master is bound to the exercise of due care and diligence in the selection and employment of his servants, and if a servant sustains injuries or is killed through the incompetence of a fellow servant whom the master or one acting for him has been negligent in employing or retaining in service, the master may be made liable for such injuries or death, if he knew or by ordinary care could have known of such incompetency, and it was unknown and could not, by the exercise of ordinary care, have been known to the servant injured or killed. The master cannot screen himself from liability upon the ground that he did not know of the incompetency of the servant whose negligence caused the injury or death, if he might have known it by the exercise of reasonable care and caution.</p>

<p>1. Master and Servant — Assumption of Risk — Appliances.—A brakeman on a work train who was inexperienced in tbe manner of. operating a plow which was being used to unload dirt and stone from flat cars and operated by means of a cable attached to the plow and the engine, and who had no control over the manner of' doing the work, did not assume the risk if the work was undertaken to be done in an unskillful and negligent manner or without the necessary' tools and appliances.'</p> <p>2. Trial — Instructions—How 'Considered: — Instructions given by.' a court on a trial m,ust be considered as a whole; - and where-the error or defect in one instruction is cured by another there is no prejudicial error. • . . .</p> <p>3. Damages — Personal Injuries — Impairment of Sense of Taste and Smell. — In a personal injury action an allegation that the plaintiff’s skull was injured,' his ear drum bursted, his neck strained, and his head otherwise bruised and injured, did not authorize the introduction, of evidence that his senses of taste and smell had been impaired as a reslult of the accident.</p>

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

<p>1. Municipal Corporations — Obstruction of Sidewalk. — Where tbe city-required property owners to place garbage in cans on tbe sidewalk, to be removed by the street cleaning department, and the</p> <p>I city negligently failed to remove the garbage when it should have done so, permitting it to remain in the can for three days, at the end of which time a traveler in the night fell over the can and sustained injuries, the city was liable.</p> <p>2. Municipal Corporations — Governmental Functions. — Wihere a city-permits a can containing garbage, that it has ordered the property owner to place on the sidewalk for remoyal by the street cleaning department, to remain three days where it has been placed by the property owner, as an obstruction to the sidewalk, the city, in failing to remove the can, was not exercising a governmental function. It was guilty of negligence in permitting its sidewalk to be obstructed in such a manner as to make it unsafe for public travel.</p>

<p>Wills — Declarations of Testator — Not Evidence of Undue Influence. — Statements or declarations of the testator, whether made , before or after the execution of the will, are not competent as direct evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will and his susceptibility to influence by which he was surrounded at the time.</p>

<p>Master and Servant — Safe Appliances — Assurance of Safety — Assumption of Risk. — In an action by a servant against his master for damages for injuries alleged to have been caused by defective appliance, where the evidence showed that plaintiff complained of the defective appliance and was assured by the master that it was safe, evidence considered and held that the question whether or not the danger was so obvious that an ordinarily prudent person would have refused to work, was for the jury.</p>

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

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

<p>Insurance — Fire Insurance — Ownership of Property. — A provision in a policy of fire insurance that the same shall be void if the interest of the insured in the property be other than the solé and unconditional ownership, or if any charge take place in the interest, title or possession of the subject of the insurance, is an enforcible provision; where it appears that at no time during the life of the policy was the insured the sole and unconditional owner, and there was no disclosure of his real interest, he cannot recover.</p>

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

<p>1. Appeal and Error — Appeal Prayed in Court of Appeals Under Act of 'March 17, 1914 — In Discretion of Court to Grant — When Appeal Will Be Granted. — When an appeal is prayed in the Court of Appeals as provided by rule 20 of the court, adopted in conformity to the act of March 17, 1914, regulating appeals in civil cases when amount in controversy, exclusive of interest and costs, is as much as ?200 and less than ¡¡>500, it is in the discretion of the Court of Appeals to grant or refuse the appeal. If the Court of Appeals is satisfied from an examination of the record that the substantial rights of the appellant were prejudiced by error of the circuit court and that the ends of justice require the reversal of that court’s judgment, it will grant the appeal.</p> <p>2. Damages — Action for Personal Injuries — Error in Instruction Defining Measure of Damages — When Ground For Reversal. — In an action to recover for personal injuries, an instruction which, in defining the measure of damages, told the jury that the plaintiff was entitled to recover for injuries to his person, for physical and mental suffering and for permanent impairment of his power to earn money, was error. Where no special damages are claimed, such as loss of time, medical bills, etc., the damages of the person injured are to be measured by his pain and suffering and the permanent impairment of his power to earn money.</p> <p>3. Highways — Motor Vehicles — Act of March 23, 1910 — Public Highway Passing Through City — Speed of Motor Vehicle Thereon. — The act of March 23, 1910, entitled, “Motor Vehicles,” is applicable to Jhe running of such vehicles on the- streets of a city or town. By the words “public highway” as used therein, the legislature intended to include street, where the public highway is spoken of as being within the corporate limits of a city or town. A public highway is not necessarily a street, but a street is necessarily a public highway, because used for public travel. When a public highway reaches the corporate boundary of a city or town and connects with a street thereof, in passing through the city or town from such point of connection it becomes a street of the municipality and subject to its authority, and continues a street and subject to such authority until some other part of the corporate boundary of the city or town is reached, beyond which it again becomes a public highway other than a street. So, in regulating the speed at which an automobile should be operated on a public highway passing through a city or town, the act regulates the speed at which it shall be operated on a street of the city or town.</p>

<p>1. Explosives — Blasting—Notice—Negligence.—Where an experienced railroad workman lias sufficient notice of an intended blast to reach, a place of safety before the shot is fired he cannot recover for an injury received as a result of the blast.</p> <p>2. Explosives — Blasting—Safe Place. — Where a workman has left the place of work for the purpose of avoiding the effect of a prospective blast the failure to furnish a reasonably safe place in which to work is not involved.</p> <p>3. Explosives — Safe Place — Instructions.—The court properly refused to instruct the jury that it was the duty of the defendant to provide a reasonably safe way for plaintiff to avoid injury, as that is only a branch of the question whether he had sufficient notice of the intended shot to have reached a place of safety.</p> <p>4. Explosives — Notice—Negligence.—In such a case it is not material whether the shot fired was excessive or unusual where the plaintiff being an experienced workman had notice of the size and nature of the shot in time to have reached a place of safety.</p>

<p>1. Taxation — Corporations and Corporate Stock and Property — Exemptions. — Under section 170, of tbe Constitution, section 2980a, Kentucky Statutes^ and the ordinance of the city of Louisville; approved July 29; 1898, adopted in pursuance of the statute and provision of the Constitution, supra, a mere enlargement of an already existing manufacturing establishment, in the way of the addition of new buildings, new and additional machinery, new processes for manufacturing, new capital invested in the enterprise,'' a new management, the addition of other employees, of the acquisition by new persons of the ownership of an existing enterprise, do not make it, nor any .part of it, a manufacturing establishment which entitles its owners to have it or any part of it exempted from taxation.</p> <p>2. Statutes — Construction of Statutes and Ordinances. — All statutes and ordinances, which grant special privileges, not of common right, will be strictly construed, so as to -not extend their terms as granting such privileges beyond the letter of such ordinances and statutes.</p>

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

<p>1. .Adverse Possession — Constructive Possession. — One who is the true owner of a tract of land, but does not reside upon it, and has no .enclosure upon it, has the constructive possession of it, where' it is not in the actual possession of some other, because, in the absence of any actual possession, the contructive possession is always in the true owner.</p> <p>2. Adverse Possession — Actual and Constructive Possession. — One who resides upon a tract of land, claiming it under a deed or. patent, without having all of it enclosed; or who holds it under a deed or patent, and has some portion of it enclosed, claiming it all, is in the actual possession of the portion which is enclosed, and the constructive actual possession of the remainder of the tract, in the absence of an actual possession of some portion of it ' by another.</p> <p>3. Adverse Possession — Actual and Constructive Possession. — One who is the owner of two adjoining tracts of land and who resides upon one, and claims to be the owner of both; or has a portion of one of the tracts enclosed, and claims to be the owner of both, is in the actual possession of his enclosure, and the constructive actual possession of all the remainder of both tracts of land, although there may be no enclosure upon the tract upon which he does not reside.</p> <p>4. Adverse Possession — Absence of — Color of Title — Extent of Pos1 session.. — One who has no color of title to a tract of land is-in the possession only to the extent of his enclosure, or to a well defined, marked or natural boundary, to which he claims, even as against the constructive possession of the titleholder who has no actual possession.</p> <p>5. Adverse Possession — Constructive Possession. — One constructive possession can not oust another constructive possession, and one constructive actual possession will not oust another of the same kind.</p> <p>6. Adverse Possession — Constructive Actual Possession. — A constructive actual possession is in law an actual possession, and is as effective in creating a bar to the recovery of the land by the title holder as a pure actual possession, if held adversely for the statutory period.</p> <p>1. Adverse Possession — Junior Patentee — Entry and Possession. — If a junior patentee enters upon the interference between his patent and the senior grant, at a time when the senior patentee is not in the actual nor constructive actual possession, and the junior patentee improves and encloses a portion of the interference with the purpose to possess himself of his grant to its boundaries, he thereby becomes in the possession of the entire interference, because a constructive possession is evicted by an actual or constructive actual possession; but if at the time of the entry of the junior patentee upon the interference, the senior patentee is in the actual or constructive actual possession of his grant, then' the possession of the junior patentee only extends to his actual enclosure or to a well defined, marked or natural boundary, because one constructive actual possession will not oust another of the same kind.</p> <p>8. Adverse Possession — Junior Patentee — Entry and Possession. — If a junior patentee once becomes in the actual and constructive actual possession of an interference between his grant and that of the senior patentee, by entering upon the interference and enclosing a portion of it, with the purpose to possess himself of his entire boundary, at a time when the senior patentee is only in constructive possession of his grant, the senior patentee, by an entry thereafter upon his grant, without the interference, does not oust the constructive actual possession of the junior patentee, because one' constructive actual possession does not evict another of the same kind.</p> <p>9. Adverse Possession — What One May Do Who Claims By. — One who claims lands by adverse possession is entitled to tack to the period of his possession, the possession of those under whom he claims the land, to make out the statutory period of adverse possession, to toll the right of entry by the title holder, if the possession is continuous, and a privity exists between the holders of the possession.</p>

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

<p>1. Railroads — Liability for Wilful Injury to Trespasser by Throwing Ice From á Passing Train. — If a baggagemaster, while acting within the scope of his employment, throws a piece of ice.from a moving train against a trespasser standing by the side of the track, whose presence he has discovered in time to prevent striking him, the company will be liable in dámages for the injuries sustained by the trespasser.</p> <p>2. Trial — Jury—Selection of. — Where bystanders are summoned as jurors in violation of the statute, it is reversible error not t'o discharge on motion timely made, the panel tendered to the litigant, although it may not appear that the rights, of the complaining patty were prejudiced by the refusal to sustain the motion to discharge.</p>

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

<p>1. Mechanics’ Liens — Proceedings to Perfect — Notice.—To give a preferred lien to a materialman or mechanic over a mortgagee or purchaser without notice, the requirements of section 2463, as to the filing of notices with the county court clerk, must be complied with, otherwise, the rights of the subsequent mortgagee, or purchaser, will not be affected by the supposed lien.</p> <p>2. Mechanics’ Liens — Notice.—Evidence examined and held in this case that the mortgagee and purchaser did not have actual, notice of the furnishing of the material.</p>

<p>1. Trial — Continuance on Account of Amended Pleading. — Although an amended pleading setting up a new ground of negligence was allowed to be filed at the beginning of the trial, it was not error to refuse to continue the case for the defendant, as the amended petition was withdrawn before any evidence was offered in support of it.</p> <p>2. Trial — Continuance—'Discretion of Trial Court. — .The trial court has a large discretion in the matter of granting a continuance on account of the absence of witnesses whose evidence in the form of affidavits is permitted to be read, and its decision will not be interfered with unless it is clearly shown that it was prejudicial error to refuse the continuance.</p> <p>3. Pleading — Proof—Variance.—Under sections 129-131, of the Civil Code, a variance is not material which does not mislead a party to his prejudice, and is fatal only when the petition is unproved not in some particular or particulars only, but in its general scope and meaning.</p> <p>4. New Trial — Newly Discovered Evidence. — A new trial should not - be granted on the ground of newly discovered evidence that is merely cumulative.</p>

<p>1. Railroads — Duty to Have Cars in Safe Condition to be Unloaded by Consignee. — When a carrier delivers a car to a consignee to be unloaded, it must have the car in a reasonably safe condition for the purposes for which it is intended to be used, and where a consignee who was in the car by invitation for the purpose of getting freight, was killed by the falling of house doors that had been placed in the car in a dangerous position, the company will be liable.</p> <p>2. Railroads — Duty Owing to Consignee in Unloading Cars — Duty of Consignee. — The consignee who is invited to remove freight from a car is under no duty to inspect or examine the car or its contents for the purpose of discovering whether either of them is in safe condition. The full measure of his duty is to exercise ordinary care for his own safety; and in the absence of knowledge to the contrary, he may assume that the car is reasonably safe for the purposes for which he intends to use it.</p>

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

<p>Master and Servant — Personal Injuries — Action for Damages — Petition — Sufficiency.—In an action by an employee against a railroad company for damages for personal injuries caused by his being struck by a piece of lumber which he and his fellow workmen were unloading from a car, based on .an allegation that the slanting pieces which were used for the purpose of unloading the lumber and the ground were covered with snow and slippery, and that the lumber which he and others had previously removed was piled too close to him to enable him to escape injury, petition and amendments examined and held not to state a cause of action, because they clearly show that plaintiff, with full knowledge of the conditions and of the danger therefrom, continued at work without any assurance of safety or assurance that the conditions would be remedied and, therefore, assumd the risk of injury.</p>

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

<p>2.Pleading — Misjoinder—Waiver.—A defendant waives his right to object to a misjoinder of causes of action by failing to make a motion to require plaintiff to elect.</p> <p>2. Evidence — Admission by Corporate Officer — Admissibility.—The statement of the secretary and treasurer of a corporation, not a part of the res gestae, but made several months after the transaction was completed, to the effect that the only surplus the company had was good will, is not admissible against the company.</p> <p>3. Corporations — Sale of Stock- — Fraudulent Representations — Evidence — Sufficiency.—On a suit to set aside the sale of stock on the ground that the company fraudulently represented to the purchaser that it had a surplus of eighty-four or eighty-nine thousand dollars, a statement issued by the company that its surplus was only fifty-four thousand dollars is sufficient evidence that the representations were fraudulent when considered in connection with the fact that five hundred thousand dollars of the company’s assets consisted of good will, brands and established trade.</p> <p>4. Corporations — Sale of Stock — Fraudulent Representations — Reliance Thereon — Evidence.—In a suit by a purchaser to set aside a sale of corporate stock on the ground that he relied on false representations with respect to the surplus of the company, made by its officers, evidence considered and held-to show that the purchaser did rely on such representations in making the purchase- and that he was entitled to have the sale set aside, although in making the purchase he was given employment by the company and the stock was personally, guaranteed by its officers.</p> <p>6. ■ Corporations — Sale of Stock — Rescission—Ratification—Laches— Evidence. — In an action for rescission for the sale of corporate stock, evidence considered and held not to show that plaintiff, with knowledge of the condition of the company’s affairs, either ratified his purchase or was guilty of laches in failing promptly to bring his suit for rescission.</p> <p>6. Corporations — Sale of Stock — Rescission—Estoppel.—A purchaser of corporate stock is not estopped to rescind his sale because subsequent to the purcha.se others bought a controlling interest in the company, in the absence of evidence conducing to show that they were misled to their prejudice by some conduct on the part of plaintiff.</p>

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

<p>1. Tender — Refusal to Accept — Vendor and Purchaser. — Where the vendor has- repudiated his agreement, thus making, it appear that if a tender were made its,acceptance would be refused, tender or offer by the vendee before suit is unnecessary; equity does not require a useless formality.</p> <p>% Appeal and Error — Finding of Chancellor. — Where the proof in an equity action is contradictory, the chancellor’s finding upon an issue of fact will not be disturbed; where the mind is left in doubt as to the truth.</p>

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

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

<p>1. Officers — Removal—Right of Appointing Power. — Where the term of an officer is fixed by statute, the right of removal, even for cause, is not an incident of the power of appointment in the absence of a statute conferring that right.</p> <p>2. Officers — Commissioner of Motor Vehicles — Power of Board of Sinking Fund Commissioners to Remove. — There being no statute conferring such power, the Board of Sinking Fund Commissioners has no power to try and remove' the Commissioner of Motor Vehicles, whose term of office is fixed at four years.</p>

<p>1. Judgment — Collateral Attack — Jurisdictibn.—When a party seeks, by a collateral attack, to impeach, the judgment of a court of general jurisdiction on the ground that be was not summoned in said action, it is necessary that he should allege in his pleading, what, if anything, is shown in the record as to the service and issue of process, because, unless the record itself shows that the court never acquired jurisdiction of him, it will be conclusively presumed that the jurisdiction did attach.</p> <p>2. Judgment — Collateral Attack. — An attack made on a- domestic judgment in any other way than by an appeal, or by proceedings had under sections 344, 414 or 518 of the Code, for the modification or vacation of judgments, is a collateral and not a direet attack.</p> <p>3. Judgment — Suit to Sell Land of Infant — Collateral Attack. — Where the petition in a suit against the infant to sell his land failed to name the infant in the caption, but named him in the body of the petition, the judgment was not void, and it cannot be attacked in a collateral proceeding.</p> <p>4. Infants — Process—Mother May Accept Service. — Under section 50 of the Code, which provides that service of summons may be acknowledged by the person to be summoned by an endorsement upon the summons, signed and dated by him, and attested by a witness, the mother of an infant defendant may accept service of summons on behalf of the infant.</p> <p>5. Judgment — Collateral Attack — Process—Service of — Presumption. —Where the record showed that a summons was served- upon one defendant, and that the service of summons was “accepted by the rest of the defendants,” it will be conclusively presumed, in a collateral attack upon the judgment, that all of the- defendants were before the court; one by actual service, and the others by an acceptance of the service of summons. '</p> <p>G Infants — Petition of Infant to Have Sale of Land Set Aside— Sufficiency of. — A petition of an infant which alleges that his land was sold in a suit by the administrator of his father’s estate, for the pretended purpose of paying the decedent’s debts, but really under a fraudulent arrangement between the administrator and a third person, whereby the land was to be bought in by a third person at a price less than its real value and subsequently conveyed to the administrator, and that the conspiracy was carried out, states a cause of action.</p>

<p>Monopolies — Pools, Trusts and Conspiracies — Sections 3915-3921, Ky. Stats. — Under the Act of 1890 (Kentucky Statutes, sections 3915-3921), condemning pools, trusts and conspiracies, a corporation or person that enters into a pool, trust, combination,,- or agreement, for the purpose of regulating, controlling, ,.and fixing the price of property, is subject to the penalty denounced by that statute.</p>

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

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

<p>1. Joint Tenancy — Purchase by One at Tax Sale Inures to Benefit of Others. — Where land owned by several joint owners is sold for taxes and one of the joint owners purchases it at the sale, his purchase inures to the benefit of the other owners.</p> <p>2. Joint Tenancy — Adverse Possession. — One joint owner of property cannot assert claim to it by adverse possession unless for the statutory period he openly and publicly claims the whole of the property in such a, manner as to put the other joint owners on notice that he is asserting title to the whole of it adversely to them.</p>

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

<p>1. Jury — Empaneling—Section 2261, Kentucky Statutes — Error— Waiver. — Trial courts are without authority to discharge a second jury panel after one week’s service and empanel a new jury, and where a party objects to a trial by the new jury thus empaneled and moves to discharge the panel, a judgment based on a verdict rendered by such jury will.be reversed. A party does not waive his right to object to a trial by the new jury because of his failure to object to the discharge of the preceding panel.</p> <p>2. Railroads — Duty to Track Repairer. — A railroad company owes to a track repairer the duty of exercising ordinary care to have its cars properly equipped and to operate them with reasonable safety.</p> <p>3. Railroads — Track Repairer — Personal Injury — Peremptory Instruction. — In an action for damages for the death of a track repairer, evidence considered and held that the question whether or not the conductor, by the exercise of ordinary care consistent with the safety of the train,. could have stopped the train in time to avoid the injury, was for the jury.</p> <p>4. Railroads — Personal Injury — Instruction.—In an action for damages for the death of a track repairer, resulting from the derailment of a car alleged to have been caused by a defective and dangerous brake-beam, the court should tell the jury that if they believe from the evidence that on the occasion in question the brake-beam on one of the cars in the train was in a defective and dangerous condition, and that this condition, if it was defective and dangerous, was known to the conductor, or could have been known to him by the exercise of ordinary care, it was the duty of the conductor to use ordinary care, with the means at his command, to stop the train as soon as it could reasonably be done consistently with the safety of the train, and if he failed to use such care and by reason thereof the decedent was struck and killed, they should find for the plaintiff; but, unless they so believe from the evidence, they should find for the defendant.</p>

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

<p>1. Negligence — Interstate Commerce — Employers’ Liability Act. — ■ An employe, engaged in work upon a turntable, which was owned and used by a common carrier whose line of railroad extended from one State over into and across other states, and the turntable was being used in handling the engines engaged in operating the trains and cars in interstate trips, as well as those operating trains and cars on trips purely intrastate, was engaged while so at work upon the turntable in the furtherance of interstate commerce, if injured can bring suit under the Federal statute known as the Employers’ Liability Act.</p> <p>2. Railroads — Interstate Commerce. — An engine of such carrier, after having been detached from a train coming from another State in Kentucky was, before being finally located at the place where it should remain until demanded for another trip, run upon such turntable for the purpose of being placed upon the track where it should remain until again needed to be used in the carriers’ business. Held that such engine had not at the time it was upon said turntable ceased its interstate journey, but was then engaged in interstate commerce.</p> <p>3. Evidence — X-Ray Photograph — Admissibility.—The introduction before the jury of X-ray photographs purporting to show the condition in which an injury left portions of the victim’s body, which conditions would without the picture be invisible, will, if the proof shows that the one produced is a correct representation of the injured portion, be admissible upon a trial for damages on account of the injury.</p> <p>4. Damages — Personal Injuries — When Verdict not Excessive.— Where the evidence shows that the plaintiff was injured by having an iron or steel bar about an inch in diameter and four and one-half feet long to pass through his entire body injuring the peritoneum, which was followed by peritonitis, and which produced abrasions and bruises of the smaller intestines, producing a permanent consequence of adhesion of the bowels, which the proof shows, creates not only a present trouble, but that the condition is absolutely incurable and is likely at any time to result in serious affliction of the patient and in all probability death; and it is further shown that a liinb has become impaired i.jiand-reduced iu;sizq, <ajid. the foot,thereon'is permanently changed so as to assume a position of being nearly right angle to the body; and great nervousness, which did not theretofore exist, now prevails with the patient, it cannot be said as a matter of law that a verdict compensating the plaintiff for these injuries, as well as physical and mental pain, in the sum of $12,500.00 is so-excessive as to-require the court. to set.it aside on that ground alone.</p>

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

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

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

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

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

<p>• Appeal and Error — Briefs—Failure to File. — Where appellant has filed no brief specifying the errors for which a reversal is asked, it will be presumed that no errors exist and that the judgment is correct.</p>

<p>1. Appeal and Error — Judgment Affecting Right to Easement in Land. — Under section 950 of the Kentucky Statutes, an appeal to the Court of Appeals from a judgment affecting the right to an easement in land can only be maintained when the right to the easement is directly involved or affected by the judgment</p> <p>2. Appeal and Error — Judgment Affecting Easement in Land. — A judgment for one dollar for the use of a stairway claimed by the appellant as an easement in appellee’s land, does not directly involve or affect a right to an easement in land, and no appeal to the Court of Appeals can be prosecuted therefrom.</p> <p>3. Appeal and Error — -Amount in Controversy. — Under no circumstances can an appeal to this court be taken or granted from a money judgment, where the amount in controversy is less than $200.00, exclusive -of interest and costs.</p>

<p>1. Counties-^-Appropriations — Section 157 Constitution. — The' action of a fiscal court in appropriating for road purposes money in excess of 'the income and revenue for that year ‘in order that the county might receive the benefit of a similar amount from the State road.fund, is not such a compulsory obligation cast upon the county by law as will authorize an appropriation in excess of that prohibited by section 157 of the Constitution.</p> <p>2. Appeal and Error — Record.—It is a very unsatisfactory practice in actions based upon contracts, writings, or orders of court, not to have them made a part of the record.</p>

<p>Municipal Corporations — Creation of Indebtedness for Benefit of Schools — Limitation.—Under section 3235a, of the Kentucky Statutes, a city of the second class may, on request of the board of education of the city, submit to the people the question of the creation of an indebtedness for school purposes, and the issual of bonds therefor. But the total outstanding bonds for school purposes shall never exceed $250,000, and an issual of bonds in excess of this amount is void.</p>

<p>Municipal Corporations — Creation -of Indebtedness — Bond Issue. — ■ A city of the second class, if it pursues the method pointed out in the statute, and does not exceed the constitutional limitation, may create an indebtedness in excess of the amount that may be raised in one year by taxation and issue bonds to pay the same, if the proposition .is submitted to the people at a regular election and approved by two-thirds of those voting on the question.</p>

<p>1. Descent and Distribution — Wills—Debts of Intestate or Devisor— Liability of Heir or Devisee. — Under Sections 2088 and 2089, Kentucky Statutes, and under Section 434, Civil Code, an heir or devisee is personally liable for the debts of his intestate or devisor, to the extent of assets received by him, regardless of . whether or not the property descended or devised is located in this State or elsewhere, or was aliened or conveyed by the heir or devisee prior to the institution of the action.</p> <p>2. Descent and Distribution — Parties to Action — Liability of Heir or Devisee — Right to Sue Executrix of Heir o? Devisee. — An executrix of an heir or devisee, who is personally liable for the debts of his intestate or devisor, may be sued and a recovery had to the extent of assets received by the heir or devisee to be levied on the assets in the hands of the executrix, even'though the particular assets, for. the receipt of which the heir or devisee is liable, may never have come into the hands of the executrix.</p> <p>3. Judgment — Conclusiveness—Pleading—Demurrer.—A plea of res adjudicata, which fails to allege that the question presented was' actually decided or necessarily concluded by a judgment rendered in a foreign court, but alleges that the question is still pending in a foreign court and has never been decided, is bad on demurrer.</p> <p>4. Descent and Distribution — Wills—Debt of Intestate or Devisor— 'Liability of Heir or Devisee — Amount of Recovery. — Where the curtesy estate of a husband, who was surety for his deceased wife, is sold to pay the debt, he, in an action against the wife’s heir or devisee to hold the latter liable to the extent of assets received from his mother, can recover only the purchase price of the estate so subjected, together with the interest thereon.</p>

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

<p>1. Frauds, Statute of — Real Property and Estates and Interests Therein. — A description in an executory contract for the sale of land which only describes the land sold as “their farm of fifty-three acres” is insufficient to satisfy the demands of the Statute of Frauds.</p> <p>2. Frauds, Statute of — Description—Parol Evidence. — When a description contained in such writing, either by reference to a water course, or town, or some well known local object, or to a former conveyance of record, so identifies the property, which is the subject matter of the contract, that it may be designated or pointed out in parol testimony by reason of such reference in the writing to such stream, town, conveyance, or well known local object, then parol testimony is competent for that purpose; but when the description in the writing has no such reference and it is necessary to resort to parol testimony to identify the subject matter of the contract as distinguished from a designation of it, then parol evidence is incompetent, and the writing is insufficient under the statute.</p> <p>3. Frauds, Statute of — Identification of Land Described. — Identifica' tion is the proving that a person, subject, or article is the very same that he or it is alleged, charged, or reputed to be, and therefore the identification of a tract of land described in a writing necessarily implies the giving of "evidence from outside facts not furnished by the-writing itself.</p> <p>4. Frauds, Statute of — Description.—-To designate means to “point out,” to “indicate,” to “show,” and the designation of the property referred to in the writing may be had from the description in the writing itself where the evidence of identity is furnished therein.</p>

<p>1. Contracts — Actionable Wrong — Parties.—A duty, the breach of which constitutes an actionable wrong, may arise from a contract or be imposed by positive law, independent of the contract; in the first case the party to the contract only, can sue; in the second case, any person injured may sue, if he be one of the class of persons for whose benefit the duty is imposed.</p> <p>2. Corporations — Governmental Function of Municipality — Negligence —Damages.—Where a private corporation or an individual undertakes to perform the governmental functions of a municipality under a contract with the municipality, a third person injured by the negligence of the contractor cannot recover damages from the contractor in a suit upon the contract, if the municipality would not have been liable in case it did the work itself.</p> <p>3. Corporations — Governmental Function — When Liable in Damages for Injuries. — A private corporation engaged in the business of running and operating a wagon in carrying persons to and from the jail and hospital, under a contract with a municipality, is liable in damages to a third person who was run over and injured by the negligence of the driver in charge of the wagon, although the corporation was engaged in the performance of a governmental function for and on behalf of the municipality, and the municipality would not have been, liable in case it had negligently operated the wagon itself.</p>

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

<p>1. Obstructing Justice — Removal of Books and Records From Jurisdiction of Court., — Where upon the charge of obstructing justice iby "removing from the State and from the jurisdiction of the court its books and records knowing that they would be called for and demanded by the grand jury as evidence, the evidence showed that the records and books were removed from the State fifteen or twenty days before the grand jury convened and before any process was issued, there being no evidence that any officer of the company had any knowledge that their production would be demanded, there should have been an instruction to find for the defendant.</p> <p>2. Obstructing Justice — Removal of Books and -Papers From Jurisdiction of Court. — The fact that grand juries in other counties in a judicial district had demanded the production of such books raised no presumption that the grand jury of another county, to be organized fifteen or twenty days in the future, and the personnel of which was not and could not have been known, would also demand their production in that county. ■</p> <p>3. Criminal Law — Conviction Upon Suspicion — Evidence.—A defendant may not be convicted upon mere suspicion; there must be such evidence, direct or circumstantial, as would authorize an impartial jury to say that he was guilty beyond a reasonable doubt, and particularly so in cases where the essence of the offense is the intent.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>1. Mechanics’ Liens — Proceedings to Perfect — Notice.—In order that a material man may acquire a lien under the Act of 1910, amending section 2463, Ky. Stats., he must give a written notice to the owner of the land, immediately after the work is completed, showing his intention to claim a lien.</p> <p>2. Mechanics’ Liens — Proceedings to Perfect. — The mere presentation of an account to the landowner was not a sufficient indication of the material man’s intention-to claim a lien under the statute.</p>

<p>1. Evidence — Entries in Books — Competency of as Substantive Evidence. — Entries on tickets or stubs or slips of paper made out by-clerks in stores in the regular course of business and at the time the transaction happened, are not original entries in the meaning of the rule that book entries. are admissible as substantive evidence. But these tickets or stubs or slips are admissible as evidence for the purpose of refreshing the memory of the party who made them. ■ ■</p> <p>2. Evidence — Entries in Books — Competency of as Substantive Evidence. — But where the entry is made in the usual course of business on a permanent book, whether it be a bill book, cash book, day book or ledger, from memoranda or tickets made out in the usual way by clerks or cashiers, these book entries are admissible as substantive evidence of tbe transaction, whether the persons who made the entries be living or dead at the time of the trial, arid without referéricé tó whether the original tickets or stubs or slips are available or the clerk-Who made the meni■oranda on-them can be-produced'.'’'</p> <p>3. Evidence — Entries in Books — Competency of as Substantive Evidence.- — If the person who made the first book entries be dead, the entries are admissible if proven to be in his handwriting and in. the regular course of business. If he is living and his evidence as a witness can be secured,'it will be competent to show by him the fact that he made the entries and the circumstances under which they were made. ■ ■ ■</p> <p>4. Evidence — Entries, in Books — Competency of as Substantive Evidence. — Where the bill books, in which the entries were first made from tickets made' out by the clerk when the transaction occurred, together with the tickets have been destroyed by fire, but the entries on the bill books were transferred by the person who made them to a ledger, the ledger entries were admissible as substantive. evidence, having the sanie" weight as would the bill books if they could have been introduced.</p>

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

<p>Trial — Instructions—Personal Injuries — Mines and Minerals — Contributory Negligence — Concrete Instruction. — Though an abstract instruction on contributory negligence be given, it is prejudicial error to refuse an offered instruction grouping facts which, if true, would constitute contributory negligence, where such an instruction is necessary to present defendant’s side of the case, and without such an instruction the jury might conclude that the facts relied on did not constitute contributory negligence.</p>

<p>1. Patents — When Junior Patent Void. — Where a junior patent laps over on to a senior patent, the former, as to the extent of the lap, is void.</p> <p>2 Vendor and Purchaser — Relief .Against One to Whom Vendor Conveyed! — A vendor may procure relief against fraud and misrepresentations as against a third party to whom his vendee has conveyed when the third party has notice of the facts surrounding the conveyance by the vendor, although there is nothing in his deed to indicate any fraud or misrepresentation.</p> <p>3. Fraud — When Equity Will Not Relieve. — The rule is that where one can read and write, and is capable of reading and understanding an instrument which he executed, is bound thereby and may not obtain relief in equity against the instrument, but this rule is qualified by the further one to the effect that if the one procuring the instrument has practiced fraud upon the other by misrepresentations as to its contents or otherwise, thereby lulling the other party into repose, may not' invoke or have the benefit of the first rule above mentioned.</p> <p>4. Adverse Possession — When Possession Presumed Amicable. — Generally speaking, the possession of the vendor of the land conveyed, after the execution of the deed when the same was with consideration and fairly obtained, will be presumed to be amicable to tbe title conveyed to his vendee, but the rule does not prevail where the deed was obtained without consideration and by misrepresentations and fraud.-</p>

<p>Pleading — Amended Petition. — The filing of an amended petition is largely in the discretion of the trial court, and, unless this discretion is plainly abused, it will not be interfered with.</p>

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

<p>1. Criminal Law — False Swearing — Corroborative Evidence — Sufficiency. — Where, on a trial for false swearing, the alleged false oath relates to two or more facts, and one witness contradicts the accused as to one fact and another witness as to another fact, the two witnesses corroborate each other in the fact that the accused swore falsely, and their testimony will authorize a con- . viction.</p> <p>2. Criminal Law — Parol Evidence — Jurisdiction.—In a prosecution for false swearing, the jurisdiction of the justice, who presided at the trial at which defendant was charged with falsely swearing, is not sufficiently shown by his record reciting that the accused was arrested on a warrant for the illegal sale of whiskey; His court being a court of inferior jurisdiction, jurisdiction depended on the issuance and service of the warrant, and the warrant itself not having been lost or destroyed should have been introduced in evidence.</p> <p>3. Criminal Law — Instructions—Indeterminate Sentence Law — Punishment — Error.—An instruction with reference to punishment for false swearing under the indeterminate sentence law, which authorized the jury to fix) the punishment of defendant at confinement in the penitentiary for an indeterminate period of not less than one and not more than five years, in their discretion, and concluded with the words, “and you will say in' your verdict the lowest number of years and the highest number of years that he shall be required to serve,” is misleading, in that the jury might conclude therefrom that it was necessary for them to prescribe both the minimum and maximum punishment in years.</p> <p>4. Criminal Law — Instructions—False Swearing — Prejudicial Error.— An instruction, telling the jury that before they can find defendant guilty of false swearing each element of the crime as set forth in the indictment and in the instructions must be proven beyond a reasonable doubt, by the testimony of two witnesses or by the testimony of one witness and strong corroborative circumstances, is not prejudicial.</p> <p>5. Criminal Law- — Instructions—Assumption of Facts. — An instruction should avoid the appearance of assuming as true the facts which the jury themselves are required to pass on, and determine adversely to the defendant before they can find him guilty.</p>

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

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

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

<p>"Wills — Contest—Mistrial.—Where upon the trial of a will contest the jury returned into court a verdict that the paper was the will of decedent, but appended to it a statement that certain property of the decedent belonged to one of the contestants, although it had been devised to another, and the court declined to receive the verdict, and .the same jury on the same evidence and without additional instructions subsequently returned into court a verdict that the paper was not the will of decedent, the court should have declined to receive the last verdict and declared a mistrial, as, there was no real basis upon which to enter a judgment.</p>

<p>1. Co venants — Covenants Running With the Land. — Where a grantor conveyed a right-of-way to a railroad company in part consideration of its agreements to build and maintain fences and cut and ' maintain ditches, these stipulations in the deed were covenants running with the land and suit might be brought to recover damages for a breach of them by the grantor or his vendee.</p> <p>2. Covenants — Covenants Running With the Land' — Remedies for Breach of. — Where a grantee in a deed obligated itself to erect fences and construct ditches, the grantor had the election of three remedies for a breach of the conditions in the contract; he could bring an action for specific performance, or to recover damages for injury tp the land, or an action for injury to the crops growing on the land.</p> <p>3. Covenants — Covenants Running With the Land — Remedies.—If the grantor bring a suit to recover damages for injury to his crops, his recovery should be limited to the damages sustained by the particular crops, and like suits to recover like recurring damages may be brought until the conditions in the contract are performed. But if the grantor bring suit to recover damages for injury to his land, he can only have one action, and in this action he is entitled to recover the reasonable cost for building and maintaining .the structure which the'grantee agreed to build and maintatin, and such other damages as he has sustained up to the time of the trial. If suit for specific performance is brought, the court should require the grantee to perform the contract or give ade? quate damages as an alternative.</p> <p>4. Parties — Plaintiffs in Suit to Recover Damages for Injury to Crops Jointly Owned. — All .parties having an interest in the crops, such as partners or landlord and, tenant, should join in one suit to recover damages for an injury to the crops sustained by a breach of contract on the part of a third person.</p> <p>5. Parties — Plaintiffs in Suit to Recover Damages for Injury to Crops Jointly Owned. — If the defendant, in. a suit by part of joint owners of crops to recover damages for injury to the crops growing out of a breach of the contract, elects to let part of the joint owners sue, he cannot thereafter object to suit by the others; but if he makes an effort to bring all the joint owners in, and some fail to assert their right, those staying out lose the right to recover in separate suits.</p> <p>6. Damages — Injury to Crops Crowing out of Breach of Contract— Measure of Recovery. — Where crops are injured by the failure of the person sued to maintain ditches, the complaining party is entitled to recover the difference between the market value of the crops grown on the land and the market value of the crop that could have been grown except for the failure to maintain the ditches. And if the injury to the crops is caused by the failure to maintain the fences, the measure of damages is such a sum as will fairly compensate thq complaining party for the injury sustained.</p>

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

<p>Judgment — Presumption of Correctness. — No error in the judgment being specified in a brief by counsel.for appellants, this court will -assume the judgment to he correct, and affirm it.</p>

<p>1. Cancellation of Instruments — Trusts—Lands—Parol Constructive Trust. — Where the mineral and timber rights in certain land jointly owned by a father-in-law and his son-in-law are optioned to different parties, and the son-in-law, in view of his leaving the State and without other consideration therefor, conveys his portion of. the land to the father-in-law for the sole purpose of enabling his father-in-law to carry out the option contracts, and the father-in-law, in violation of the agreement under which he acquired title of the land, conveys it to another with notice of the facts and of the grantor’s claim to ownership, the circumstances create a parol constructive trust not within the statute of frauds which equity will enforce by cancelling both conveyances.</p> <p>2. Cancellation of Instruments — Bona Fide Purchaser. — In an action to cancel certain deeds, on the ground that the land was conveyed from plaintiff to one of the defendants in trust for a particular purpose and the other defendant made the purchase with full knowledge of the trust, evidence examined and held to show that the second defendant was not a bona fide purchaser for value without notice, but acquired title to the land with full knowledge of the facts and of the original grantor’s claim to ownership.</p> <p>3. Cancellation of Instruments — Judgment of Cancellation. — In an action to cancel certain deeds, held that the judgment of cancellation affected only plaintiff’s interest and was not reversible on the ground that other interests in the land were included.</p> <p>4. Cancellation of Instruments — Lien for Purchase Money. — Where . a son-in-law conveys land to his father-in-law, in trust for a particular purpose, and the father-in-law, in violation of the trust, conveys it to another with notice, the latter upon the cancellation of the deeds by a court of equity, is not entitled to a lien on the land for that portion of the purchase money which was placed by the father-in-law in bank and was never paid to the son-in-law.</p>

<p>1. Liens — Petition to Enforce Lien for Wages. — Petition to enforce lien for wages under sections 2487 to 2491 Kentucky Statutes must show or allege that it is filed within sixty days from date of the assignment or suspension of the business.</p> <p>2. Liens — Petition to Enforce Lien for Wages'. — Petition to establish lien superior to existing mortgage lien must state or show it is filed within sixty days from date of suspension of the business, and that the claim is for wages coming due to employes within six months before said date of suspension.</p> <p>3. Liens — Lien of Employes Upon Property of Public Improvement Company. — Employes have the same lien upon the property of a public improvement company under conditions named in section 2490, as under conditions named in section 2487; and the provisions of section 2488 apply to section 2490 the same as to section 2487.</p> <p>4. Liens — Enforcement of Purchase Money Lien. — Circuit courts can enforce the payment of the purchase price by a resale of the property sold, at a subsequent term to the term at which the sale was confirmed, rights of innocent purchasers not having intervened.</p>

<p>1. Appeal and Error — Aggregated Judgments — Jurisdiction.—Where judgments for money are severable and each is for a sum less than is necessary to give this court jurisdiction, they can not be added together so that the aggregate sum would confer jurisdiction, although the cases may have been consolidated in the trial court and heard together. (See Jordon v. Covington Bros. & Co., 125 Ky„ 73.)</p> <p>7. Mortgages — Absolute 'Deed as Mortgage. — The grantee in a deed to real estate, which is absolute on its face, but intended to be for the security of a debt, and therefore only a mortgage, is not entitled to the possession, occupancy, or rents of the premises, nor are any of those put in lien for the debt, the guarantor taking no ¡rights greater than if the instrument had been an ordinary mortgage.</p> <p>3. Forcible Entry and Detainer — Judgment of Eviction — Evidence.—■ A judgment of eviction 'in a forcible entry and detainer proceeding against the father with a curtesy or homestead interest in the premises is not binding upon his children, who are the 'owners in fee to the premises and who likewise have a right of home- . stead and occupancy therein; but if the children should be evicted under such judgment, it is competent evidence in behalf of defendant upon a trial of a suit brought against him seeking -to recover damages for the eviction, which is charged to be maliciously done, this evidence bearing upon the question of malice involved in such suit.</p> <p>4. Damages — Action for Wrongful Eviction — Question for Jury. — ■ Where the evidence shows in such case that the grantee in the deed in good faith believed that he had a perfect title and a right to the possession, and had procured a judgment against the father in forcible entry and detainer proceedings, and that while he held such deed for a period of more than three years during which time he paid past and current taxes; repaired the premises; kept the property insured; advanced money for the necessities of . the occupants, • etc., and there is no .testimony of any apt on his .. part ■ manifesting any ill-will or injurious intentions toward the occupants; and. nothing to show that the eviction was accoin- - panied with any high-handed'acts or insulting words; arid that the contents of the house were'exposed'but for an hour or two, when they were’cautiously' rémovéd by the défen'dant; 'there is nothing-tó show ínálice on the part of' defendant, and in’á-suit against him by the-children of-the--father for a- wrongful eviction, the'question-of-'their right to. recover punitive damages under - • such, circumstances-should-not be-submitted to the jury.</p> <p>5. Forcible Entry and Detainer — Judgment of Eviction — Bar.—-If, at the time of the execution of such, absolute deed, .the makers thereof agreed- to pay the rent for the subsequent occupation of the premises and to occupy same as the tenants of the grantor iii such ■ deed, the judgment of eviction in a forcible entry and detainer proceeding agairist the parent'will be a bar to a suit for damages by the children for the eviction, unless- accompanied by unlawful acts, ■ because in such case the children stand in privity with their parents and are bound by their contract as to such occupancy.</p> <p>6. New Trial — Excessive Verdict. — A verdict in such a suit under the circumstances hereinbefore detailed awarding to the plaintiff actual damage for humiliation in the sum of .$450.00 is excessive and sufficient to entitle the defendant to a new trial.</p>

<p>1. Religious Societies — Limitation as to Land to be Held by — Section 319 Ky. Stats. — Under section 319 oí the Kentucky Statutes, “No church or society of Christians” can take or hold title to, by devise or otherwise, in this State, exceeding-fifty acres, of-ground, and that must be held “for the purpose of erecting thereon houses of public worship, public instruction, parsonage, or graveyard.”</p> <p>2. Religious Societies — Limitation as to Land to be Held by.— There is no limitation in such section upon the power of the person attempting to confer title upon such society, but only a limitation therein of the latter’s capacity to take and hold title to land.</p> <p>3. Religious Societies — Limitation as to Land to be Held by. — If the one attempting to confer title to such societies includes, in the instrument executed by him, evidencing such purpose, more than fifty acres of ground, the amount specified in the statute, only the excess above fifty acres is void, and the church or society will be permitted to take and hold the title for the purposes mentioned in the statute to as much as fifty acres of ground.</p> <p>4. Religious Societies — Limitation as to Land to be Held by. — If the instrument creating and conferring the donation is silent as to the use and purpose for which the title may be held by such church or society, the law will impress upon its use, and limit the same, to the purposes stated in the statute, which will be read into and made a part of the instrument creating the donation.</p> <p>5. Religious Societies — Limitation as to Land to be Held by. — The doctrine last mentioned above will not be applied, -however, if in the instrument creating the donation, the maker thereof has expressed a different user of the property, and impressed upon it a different use than the ones specified in the statute.</p> <p>6. Executors and Administrators — Authority to Extinguish Debts— Excess. — Where the executor was authorized by the will to rent out the land until sufficient funds were realized to extinguish debts, expenses, etc., and he realized in this way more than was necessary for this purpose, the excess will be property of the devisee of the land and does not become personalty belonging to the estate.</p> <p>7. Religious Societies — Devise of Property to. — If a testator directs land to be sold and the proceeds paid to a church or a society of Christians, this is not prohibited'by section 319 of the Kentucky statutes, as the proceeds of the land when sold became personalty, and there is no statutory inhibition against such church or society from taking and using personalty.</p>

<p>1. Master and Servant — Duty of Servant to Inspect Tools. — A claw-bar and a spike maul are “simple” or “common” tools which anyone of ordinary intelligence may safely use without instruction or assistance; and the duty of inspection as to such tools rests upon the laborer using them and not upon the master.</p> <p>2. Master and Servant — 'Defective Appliances. — While it is not the duty of a workman to inspect the tool being used by his co-worker, although the two workmen were at the time using two tools jointly in a common undertaking, yet, where the injured workman knew the defective condition of the tool being used by his co-worker and so knowing engaged with him in the joint use of such tool he cannot recover for injuries received as a result thereof.</p>

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

<p>1. Bonds — Having Force and Effect of Judgment. — Every bond taken on the sale of’property under an order or judgment in chancery, or on the sale of property under execution, and every replevin and forthcoming bond has the force and effect of a judgment, and upon which, if not paid at maturity, an execution may issue.</p> <p>2. Damages — Exemption From Liability. — As a general rule, one who has a right to do a thing, and in the doing of it exercises ordinary care to avoid injury to others, is free from liability for damages.</p> <p>3. Execution — Indemnity Not Required in Sale of Land.- — No bond of indemnity can be required by the sheriff to sell lands.</p> <p>4. Execution — Lien, Levy and Custody of Property. — By a levy and sale of land neither the sheriff nor the purchaser acquires possession or control of the property, either in fact or in law.</p> <p>5. Execution — When .Equitable Title to Land Not Subject to Levy.— The land of an execution defendant, to which he has only an equitable title, is not liable to levy nor sale under the execution.</p> <p>6. Judgment — Remedy for Erroneous Judgment. — The remedy for an erroneous judgment; which was rendered 'by á court having juris- ' diction of the subject matter and-the parties; is an appeal. It cafa, hot be collaterally attacked by the parties-or their privies, but is binding until reversed; set aside or annulled, in one of the ways ■provided by law.</p> <p>7. Judgment — Presumption That Necessary ■ Parties Were Before . ’Court. — Where it is alleged in a-pleading that a court, having jurisdiction of the subject matter, rendered a judgment in an action pending in the court, it will be presumed that the court proceeded according to law, and that the necessary parties were before the court, in the absence of an allegation to the contrary. '</p> <p>8. Judgment — Requisites and Validity. — Until a' judgment has been reversed, vacated or modified, in'some one of the ways provided by law, the parties can not refuse to obey it nor indemnify themselves against its legal consequences by subsequent litigation.</p>

<p>1. Negligence — When Specific Acts May Be Proven — Pleading.—In g-n action to recover damages for personal injuries, -which, result from negligence, if the negligence complained of is stated in general terms, any specific acts of negligence may he proven and relied upon, hut if the specific acts constituting the negligence complained of are alleged, acts not alleged in the pleadings can not be proven nor relied upon.</p> <p>2. Trial — Peremptory Instruction. — A peremptory instruction is not authorized unless, after admitting the testimony offered by a, plaintiff, and every reasonable inference to be deducted from the facts proven, to be true, his cause of action is yet unsupported in any degree.</p> <p>3. Trial — Peremptory Instruction. — Where a motion is made at the conclusion of all of the testimony for a peremptory instruction, the plaintiff is entitled to have considered the facts appearing from his evidence, and also, all the facts developed by the evidenee of the defendant, which, goes to support .plaintiffs cause,of action.</p> <p>4. Trial — Peremptory Instruction. — Wherever it is th'e province of the jury to determine the weight' of the evidence offered in support of a causé of action',' a'peremptory instruction should hé 'denidd.</p> <p>5. Trial — Submission to’Jury.'-^-I-f ’the'facts in proof are'undisputed, yet,- if reasonable men' may arrive at differépt conclusions- from them, the question should he submitted to the jury. .</p> <p>6. Damages — Mortuary Tables — Evidence.—Where one claims damages for a personal injury, which impairs his power to earn money, Dr. Wigglesworth’s table of mortality is competent evidence 'in proof of the number'of years w-hich the claimant may be reasonably expected -to' live. ' •</p>

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

<p>1. Vendor and Purchaser — Writing Evidencing Mortgage and Conditional Sale — Legal Effect of — Action to Cancel Deed — Value of Improvements. — Where the owner of a lot which was sold in satisfaction of a lien debt, purchased it at such sale and induced another to become her surety on the sale bonds, by executing to him a mortgage thereon to indemnify him against loss as such surety and which provided that in the event of his having to pay the sale bonds he should become the owner óf the property and entitled to a deed from the court’s commissioner conveying it to him, such writing constituted a conditional sale; and as the sale bonds were paid by the surety at maturity, the circuit court properly ordered the commissioner to deed him the property. But, as in this .action brought by the former1 owner of the lot to . cancel tbe commissioner’s deed and recover the property, the surety consented' to restore it upon being reimbursed for the amount he paid in- satisfaction of the sale bonds, certain taxes he was compelled .to pay on, the property, and for valuable and lasting improvements made thereon; the court, in adjudging restoration of the property, properly gave the surety a lien thereon for the sums so paid by him, respectively, and the value of the improvements, and in directing a sale of the property to pay same.</p> <p>2. Vendor and Purchaser — Purchaser in Good Faith — Lien for Improvements — When Rents Not Recoverable by Vendor. — 'Where one in possession of property as a purchaser in good faith makes valuable and lasting improvements thereon, but is compelled for a cause, with respect to. which he is without fault, to surrender the property to another, equity requires that he be allowed the consideration paid by him for the property, together with the value of the improvements made thereon, to the extent that they enhanced its vendible value; and ordinarily in such case the rents shoúld be regulated by the interest on the consideration and on the value of the improvements, being neither greater nor less than their united amounts. It is, however, a well, settled rule of equity that the recovery of rents is not permissible in such case until there is a denial of the right of the occupying purchaser to the property; and as in this case there was no denial from the former owner of the property of the occupying purchaser’s right thereto, until after she moved into and retook possession of it, and such possession has since been retained by her, she was properly adjudged not entitled to recover anything by way of rents on the property.</p>

<p>1, Jury — Impanelling—Error.—Circuit courts are without authority to discharge a second jury panel after one week’s service and impanel a new jury, and wíiere a party objects to a trial by a new jury thus impaneled and moves to .discharge the panel, a judgment baséd on a verdict're'nderéd by such jury will be reversed. ■</p> <p>2. Master and Servant — Personal Injury to Servant — When Master ’ Not Liable For — Peremptory Instruction. — In an action ¡brought ■by a servant to recover damages from the master for an injury caused by the alleged negligence of the latter in furnishing him a mule for hauling cars in a mine that was not reasonably. safe for such work, in order to authorize a recovery it is necessary $ for the servant to prove: first, that the mule was vicious or dangerous; second, that the master either knew or by the exercise of ordinary care could have known thereof; third, that appellee did not himself have such knowledge and could not have acquired it by the exercise of ordinary care on hia part. And where, as in this ease, it was conclusively shown by the evidence that if the mule by which the servant claimed to have been injured was not . reasonably safe for use that fact was known to him, but was not shown to have been known to the master, or that the latter had an opportunity, by the exercise of ordinary care, to have discovered it; and further, that the servant’s injuries were caused by his own negligence in unnecessarily jumping from a coal car when the danger of doing so was obvious to one of ordinary intelligence situated as he was, there should have been a peremptory instruction directing a verdict for the defendant.</p>

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

<p>1.' -Criminal Law — Evidence—Ex-Ray Photograph.. — It was improper to permit the Commonwealth to introduce testimony upon tri^l ■ under an indictment for malicious striking and wounding with a deadly weapon, as to what an X-ray picture showed as to the effect'of striking upon the body of the prosecuting witness, without proof by the person who took the picture, or other witnesses, that the picture was properly taken and is a true representation, and that it is otherwise properly authenticated; but when the witness giving such testimony at the same time states that he saw the parts being examined through the X-ray machine and the shadow made thereby and thus testifies from his own knowledge that the conditions were the same as that shown by the picture, the error in admitting the picture would not be, under such circumstances, so prejudicial as to authorize a reversal.</p> <p>2. Criminal Law — Evidence—X-Ray Photograph. — Such testimony as mentioned above, upon the trial of the defendant in an indictment, will not be so scrutinized by the courts before admission, as it would in the trial of an issue where the condition of the parts displayed by the picture is the foundation and gist of the action, such as in cases of malpractice, etc., such condition of the parts displayed by the picture not being an es'sential element of the crime.</p> <p>3. Criminal Law — Misconduct of Counsel. — Misconduct on the part of the attorney for the Commonwealth in language charged to him in his closing argument, must be such as it would be reasonably calculated to have wrongfully influenced the jury in its verdict, and to thereby have produced an unfair verdict, thus making the statement prejudicial to the substantial rights of the party against whom, or against whose defense the statements are made.</p>

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

<p>Easements — Passway—Prescription—Sufficiency of Evidence'. — In an action to enjoin tlie use of an alleged road or passway, evidence-examined and held insufficient to establish a road or , passway by-prescription.</p>

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

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

<p>1. False Pretenses — Element of Offense. — Under section 1208 of the Kentucky Statutes, which makes it a felony for any person by any false pretense, statement or token, with - intention to commit a fraud, to obtain money or other property from another, the gist of the offense is the successful misrepresentation, regardless of the person to whom it was made.</p> <p>2. False Pretenses — Element of Offense. — Under section 1208 of the Kentucky Statutes, which makes it a felony for any person by any false pretense, statement or token, with intention to commit a fraud, to obtain money or property from another, an offense is committed where the false representation is made to one, and money or property is thereby obtained from another.</p>

<p>Husband and Wife — Occupancy of Wife’s Property — Possession.—• Husband and wife having moved upon land inherited by the wife, their possession is her possession, and the husband cannot claim adversely to her • so long as they live together as husband and wife.</p>

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

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

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

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

<p>1. Attachment — -Contest Between Purchaser and Attaching Creditors. —Where the purchaser of personal property testifies as to the facts of the sale, and it is shown that he at the.time paid the money for the property, and that it was delivered to a third party to be sold at retail at a stipulated price, and the same facts are testified to by such third party, and the testimony in the whole case fails to develop any facts looking to the practicing of fraud in any way, in a contest between such purchaser and attaching creditors of the third party, the court should instruct the jury to find the property to be that of the purchaser, there 'being no proof to the contrary.</p> <p>2. Evidence — Admissions—Hearsay.—The admission as evidence before the jury of a letter and a receipt, both of which were written by a party not connected with the suit, and the writer not being introduced as a witness, is incompetent, as under such circumstances, the evidence would be hearsay only.</p> <p>3. Attachment — Liens—Priority.—When an attaching creditor obtains, by his attachment, an equitable lien upon the attached property, such lien must yield to a similar equity acquired prior thereto.</p>

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

<p>Appeal and Error — Incomplete Record — Affirmance.—Where portions of either the pleadings or the evidence hearing on the questions involved are omitted from the record on appeal, the judgment will -he* affirmed.</p>

<p>1. Statutes — Construction—Repeal.—Repeals of statutes by implication are not favored, and when the two laws can be reconciled and a construction be reached by which each of them may be harmonized and read together, courts will adopt the harmonizing construction and allow each of them to stand.</p> <p>2. Schools and- School Districts — Chapter 2 of Acts of 1910. — Chapter 2 of the Acts of 1910, being .“An Act to amend the school laws and to create Boards of Education, and to define their duties in cities of the first class,”- did not repeal section 2997, Kentucky Statutes, 1915 edition, but said section remains in full force and effect as a part of the general school laws of the State of Kentucky, as applicable to cities of the -first class.</p> <p>3. Statutes — Contemporaneous Construction. — The rule of contemporaneous construction by the Legislature of any part of the Constitution, will be given no weight By the courts in construing that instrument, if the language to be construed therein is plain and unambiguous, but if the language is susceptible of more than one possible interpretation, a long and continuous construction by the Legislature will receive by the courts some weight and some consideration when called upon to construe the language in dispute.</p> <p>4. Constitutional Law — Construction.—fhe rule that courts will ascertain the spirit of a Constitution and will deny the validity of any act supposed to violate any spirit pervading the Constitution, is not a rule of interpretation in this State.</p> <p>5. Taxation — Discounts or Rebates. — Under section 171 of the Constitution, it is competent for the Legislature to authorize the tax collecting agencies to allow, by due enactment, discounts, or rebates, within reasonable limitations, to the tax payer as an inducement for him to pay his taxes before they become due, and this privilege, when extended to all, does not violate the uniformity of taxes provided for in said section.</p> <p>6. Taxation — Discounts or Rebates. — To authorize and allow such rebates, or discounts, is not “devoting” taxes levied or collected for one purpose to that of another purpose, as is forbidden by section 180 of the Constitution.</p> <p>7. Schools and School Districts — Rebates and Discounts in Collection of Taxes for School Purposes. — To authorize and allow such rebates and discounts, in the collection of taxes for school purposes is not a misappropriation of any sum “produced for such purpose,” as is denounced by section 184 of the Constitution, the allowing of the rebates, or discount, being a part of the collection of the taxes, which collection is a part of the means by which the taxes are produced, as much so as is the levying of the taxes.</p>

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

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch Number One).</p>

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

<p>1, Corporations — Payment of Incorporation Pees and Taxes. — Section 4225, Kentucky Statutes, was not intended to ke retroactive and hence imposes an organization tax upon corporations, only, organized since its enactment, and upon the increase of the capital stock of the corporation to the extent of the increase, where the increase has been made since the adoption of that statute.</p> <p>2. Corporations — Payment of Incorporation Pees and Taxes. — An acceptance of the provisions of the present constitution by a corporation, which was organized before its adoption, does not render the corporation liable for the organization tax provided for by Section 4225, Kentucky Statutes.</p> <p>3. Corporations — Amendment—Payment of Incorporation Pees and Taxes. — If a corporation, by amendment, changes its scope, rights and powers in such a substantial way as amounts to a radical and material change of its plans and purposes, as if, in fact, if not in name, to create a new corporation, the organization tax can be imposed upon it to the entire amount of its authorized capital stock.</p> <p>4. Corporations — -Payment of Incorporation Pees and Taxes. — The organization tax can not be imposed upon a corporation which was organized before the enactment of Section 4225, Kentucky Statutes, and has since accepted the provisions of the. present constitution as provided by law, because of the adoption of an amendment to its articles of incorporation, by which its corporate existence is extended, only, and nothing more.</p>

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

<p>1. Bills and Notes — Negotiable Instruments.' — If a negotiable instrument is negotiated after it is past due, the same defenses may be made against it as if it was a non-negotiable instrument.</p> <p>2. Bills and Notes — Negotiable Instruments. — If a negotiable instrument is complete and regular upon its face, the holder has a prima facie case, but when one sued for a recovery, upon the instrument, shows, by proof, that there is an- infirmity in the instrument or a defect in title of some one who has negotiated the instrument, then the burden of proof is cast upon the holder to show that he or some one under whom he claims is a holder in due course.</p> <p>3. Bills and Notes' — Negotiable Instrument. — If all the proof shows that the holder of a negotiable instrument is a holder in due course, it is proper for the court to direct a verdict in his favor, regardless of any defense, which may be made against it, by prior parties to the instrument.</p> <p>4. Fraud — Rescission—Damages.'—If one is induced to make a purchase of personal property by a fraud practiced upon him, and the contract is executed by the delivery of the property to him, if, when he has knowledge of- the fraud, he, within a reasonable time, rescinds the contract and returns or offers to return the property, or if the property is worthless for any purpose, his plea of fraud is a complete defense to the recovery of the purchase price, but if the property is of any value, and though aware of the fraud, he does not rescind the contract, and return or offer to return the property within a reasonable time, he cannot rely upon the fraud for a rescission, but he may plead a counter claim for recoupment of the damages suffered by him on account of the fraud.</p> <p>5. Fraud — When Damages Not Recoverable. — 'Damages will not be recoverable for á fraud which results in no injury.</p> <p>6. Sales — Warranty—Breach.—A warranty given by the seller of personal property is a part .of the contract of sale, but is a collateral part, and its breach does not terminate the contract.</p> <p>7. Sales — Warranty'—Damages.—A warrantee may recoup himself in damages by a counter claim, for a breach of the warranty, in. an action by tbe seller to recover the purchase price of the property.</p> <p>8. Sales — Warranty—Damages—Breach.—In order to recover damages for a breach of the warranty, the purchaser of ¡personal property does not have to return or offer to return the property, but a breach of warranty cannot be relied upon as a complete defense, so as to bar the recovery of the purchase price, unless ■ there has been a return or offer to return the property, or unless the property is worthless for any purpose.</p> <p>9. Sales- — Warranty—Breach.—Where the representations, which constitute the warranty, are, also, a fraud, the purchaser of personal property, at an executed sale, may rely upon a breach of the warranty, or the fraud, at his election.</p> <p>10. Sales — Warranty—Measure of Damages. — The measure of damages for a fraud, which induced a purchase of personal property, or a breach-of the warranty, as to its quality which induced such a purchase, is the same, it being the difference between the actual value of the property, at the time of the purchase, and its value, if as it was represented to be, or warranted to be.</p>

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

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