Volume 168 — Kentucky Reports

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

<p>Mines and Minerals — Props—Duty of Owner to Furnish and Miner to Select and Mark — Effect Of Failure of Miner to Mark — Under the statute in force in 1912 it was the duty of the mine owner to furnish props and the duty of the miners to select and mark for delivery the props they needed. And where under a rule of the mine the miners were identified by number, and the miner who wanted the props was required to put his number on them, a miner who selected props but put the number of another miner on them, could not hold the company liable in damages for injuries sustained on account of its failure to. deliver the props.</p>

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

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

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

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

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

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

<p>Judicial Sales — Sale of Land Under Section 490 Civil Code — Ap-praisement. — Land sold under section 490 of the Code upon the ground of indivisibility, need not be appraised; and a provision in the judgment of sale directing an appraisement, which was made, did not affect the purchaser’s title.</p>

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

<p>1. Contracts — Impossibility of Performance — When Not an Excuse for Non-performance. — A contract is not invalid, nor is the prom-isor discharged, merely because it turns out to be difficult, unreasonable, dangerous or burdensome, or even impossible of performance. Where the performance becomes impossible subsequent to the making of the contract, the general rule is that the promisor is not, therefore, discharged. Where the law creates a duty or charge, and the party is disabled to perform it, without any fault in him, there the law will excuse him; but where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding an accident by inevitable casualty, because he might have provided against it by his contract.</p> <p>■2. Contracts — Consideration—Performance—Absence of Fraud or Mistake. — If one for a valid consideration promises another to do that which is, in fact, impossible, but the promise is not obtained by actual or constructive fraud, and is not on its face obviously impossible, there seems no reason why the promisor should not be held to pay damages for the breach of the contract; not, in fact, for not doing what cannot be done, but for undertaking and promising to do it. So, if it becomes impossible by contingencies which should have been foreseen and provided against in the contract, and still more if they might have been prevented, the promisor should be held answerable. So, if the impossibility applies to the promisor personally, there being no natural impossibility in the thing, this will not be a sufficient excuse.</p> <p>3. Damages — When Not Excessive. — -Evidence* examined and held sufficient to show that $1,500.00, the amount awarded appellees by the verdict of the jury in this case, for failure of appellants to perform the contract sued on, is not excessive.</p>

<p>1. Schools and School Districts — Taxes—School Fund. — Commission for Collecting not Allowed — General County Expense — A sheriff in ■collecting taxes,for school purposes is not entitled to retain a commission thereon separately, from the other taxes collected for the same year. The commission of the sheriff for collecting school taxes must be paid by the fiscal court out of the general fund, as other general 'county expenses. (See Henry Co. Board ofEduca- ■ tion v. Jones, Ex-Sheriff; 140' Ky.', 544¡- and cases therein cited.)</p> <p>2. Schools and School Districts — Sheriff’s Settlement With Fiscal Court — When Invalid — Action Notwithstanding on Sheriff’s Bond —When Permissible. — A settlement by the sheriff as to taxes collected, made with the fiscal court, in which he was improperly allowed commissions out of a school tax collected by him, but which settlement was filed in and approved by the fiscal court, and recorded in that court, instead of being filed in the county clerk’s office, approved by the county court and recorded in the county clerk’s office, as required by section 4146, Kentucky Statutes, will not prevent the recovery by the county board of education of the commissions, wrongfully retained by the sheriff, in a direct action by the board on the sheriff’s bond. In such state of case the settlement is invalid, which rendered an action to surcharge it unnecessary.</p>

<p>Decided upon authority of Commonwealth, for use, etc., v. Mackey, ante.</p>

<p>1. Injunction. — Where the plaintiff has an adequate means of redress in his own hands, he is not entitled to an injunction.</p> <p>2. Inspection — Inspection of Oils. — Where a party in tlie possession of oil, a part of which, under sections 2202 to 2217 inclusive, is liable to inspection, commingles said portion with other oil not liable to inspection in such a way as to render it infeasible and impracticable for an oil inspector to inspect that portion of same liable thereto, said inspector may inspect the whole thereof and collect the statutory fee therefor.</p>

<p>1. Divorce — Review of Questions of Alimony — Attorneys’ Fees.— While the Court of Appeals cannot disturb a judgment of the circuit court granting a divorce, it has jurisdiction to review the questions of alimony, support and maintenance of the wife and her children, and the amount of fees allowed her attorneys.</p> <p>2. Divorce — Alimony.—Where a wife, who was without estate of . her own, was granted a divorce from her husband, who- is a young man 37 years old and in good health, with a net estate of $6,000.00, the wife’s alimony is fixed at $2,000.00.</p>

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

<p>1. Appeal and Error — Dismissal—Section 757 Civil Code. — Under section 757 of.the'Ciyil Code of Practice, if it be made to appear that the appellant’s ' right to prosecute his appeal has ceased, .'the appellee may,' u¿oh stating the ground's in writing, have the appeal dismissed. ■</p> <p>2. Appeal and Error — Dismissal.—Where, pending the appeal, conditions have arisen that would make the judgment on appeal of no effect, it will be dismissed.</p> <p>3. Appeal and Error — Dismissal.—Where the appellant compromised the judgment against him after the appeal was taken, the appeal' will be dismissed upon motion made under section 757 of the Code.</p>

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

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

<p>1. New Trial — Newly Discovered Evidence.- — A new trial will not be granted after the term at which a judgment is entered upon the ground of newly discovered evidence, unless that evidence he of an unerring and convincing character, and good reason is shown why it was not produced upon the trial.</p> <p>2. New Trial — Newly Discovered Evidence. — Where the nature of the newly discovered evidence is such that it might have been produced on the trial by a mere physical inspection of certain lands, and such inspection was not made although opportunity was given, proper diligence was not exercised.</p>

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

<p>1. Trial — Peremptory Instruction. — A peremptory instruction is not authorized unless, after admitting the testimony offered hy the claimant, and every reasonable deduction from it to be true, his cause of action yet fails of having any support.</p> <p>2. Trial — Peremptory Instruction. — Whenever evidence is offered in support of a cause of action, and it is the province of the jury to determine the weight to be given it, a peremptory instruction should not be given for the defendant.</p> <p>3. Railroads — Trespassers—Lookout.—Whenever, by the exercise of ordinary care by the employes of railroads, the presence of persons upon the railroad tracks must be anticipated, it is the duty of the railroad company to keep an effective lookout, maintain a reasonable rate of speed, and have some person in a place where he can control the movement of the train.</p> <p>4. Trial — Motion for Directed Verdict. — Where a motion for a direct verdict is made at the conclusion of all the evidence, the plaintiff is entitled to the benefit of any facts which were developed by the defendant’s evidence, as well as those which appear from his own evidence.</p> <p>5. Railroads — Trespassers—Lookout.—At places where the presence of persons upon the railroad tracks must he anticipated, and the train is operated at a' dangerous rate of speed, or a proper lookout is not maintained, or timely warning of its approach is not given, whether the injured person was exercising ordinary care for his own safety, at the time of his injury, is a question for the jury. , •</p>

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

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

<p>1. Explosives — Liability of Person Using. — Where the owner of a rock quarry had several holes drilled in which sticks of dynamite were placed to be exploded, and after it was supposed all of the charges had been exploded, other laborers were set to work, in. this place, and one of them struck with his pick a stick of dynamite placed in one of these holes but that had not been fired off,, thereby exploding it, the owner of the quarry was liable in damages to a person injured by. the explosion, although it made a casual inspection of the premises after the charges put in the holes had been fired off and did not know of the presence in the holes of the unexploded dynamite.</p> <p>2. Explosives — Degree of Care Required by Person Using — Instruction. — -When dynamite in the course of work is put in boles for .the purpose of being and is attempted to be exploded, the master must make a very careful examination for the purpose of ascertaining whether all the charges have exploded before he sends other men to work at this place, with implements that might cause an explosion by coming in contact with any charge that had not exploded. The inspection must be sufficient to meet the highest degree of care practicable under the circumstances, for the purpose of discovering whether any of the dynamite had been left unexploded, and the jury should be so instructed.</p> <p>3. Corporations — Dummy Corporations — Evidence to Show Existence of. — -The stockholders of a solvent corporation will not be allowed to incorporate a dummy corporation for the sole purpose of trying to protect the solvent corporation from suits and damages in the operation of the work in which it is engaged, and any person who has a cause of action against the corporations conducting their business in this way may sue both of them and recover against the solvent corporation, although his contract was made with the dummy and it was apparently in control of the work out of which the cause of action arose; and the fact that one of the corporations is a dummy may be shown by circumstances.</p>

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

<p>1. Master and Servant — Liability of Master for Ordinary Negligence of Servant. — Where the master assigns or imposes upon one of his servants the duty of representing him in providing his employes with adequate assistants, or a sufficient number of workmen to do the work assigned them, the servant’s acts are deemed to be those of his master, who will be liable for the ordinary negligence of such servant in doing the work assigned to him.</p> <p>2. Trial — Argument of Counsel. — In a civil action, it is not improper for counsel for plaintiff to comment upon the fact that the foreman of the defendant corporation failed to testify.</p> <p>3. Damages — Pleading—Peremptory Instruction. — Where the plaintiff's petition in a suit for damages for personal injuries, against a railroad company, was drawn under the State law, and the plaintiff’s proof showed that he was injured while engaged in interstate commerce, the plaintiff should have amended his petition to conform to the proof; hut, having failed to so amend his petition, the defendant’s motion for a peremptory instruction should have been sustained.</p>

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

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

<p>1. Trial — Burden of Proof. — Burden of proof is upon the party against whom judgment carrying costs would go in the absence of proof.</p> <p>2. Appeal and Error — Final Order. — Sustaining a demurrer to a paragraph m a petition is not a final order, and after amendment another demurrer to said paragraph as amended having-been filed and overruled destroys tlie effect of the former order of the courtsustaining the first demurrer.</p> <p>3. Damages — Loss of Profits. — Loss of profits growing out of an existing collateral or subordinate agreement may he recovered where they were within the contemplation of the parties when the original contract was made, hut, as in other cases of special damages, the defendant must have had notice of such collateral contract at the time.</p> <p>4. Appeal and Error — Instructions.—An instruction that is open to criticism because inaccurately drawn, but which properly defines the measure of damages, is not ground for reversal when party objecting is not prejudiced thereby.</p>

<p>Action — Multiplicity of Suits. — Where a suit is pending in a court, .a second suit filed therein between the same parties and involving the same subject matter will be dismissed.</p>

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

<p>1. Negligence — Trespassers.—A member of a traveling comedy com- , pany ■who climbs on a wagon loaded with the effects of the company to assist in removing some obstruction with which the' load has come in contact is not a trespasser or a volunteer, there being evidence to the effect that it was a part of his duty to assist in loading the effects of the company.</p> <p>2. Electricity. — -While electric wires charged with a voltage of only 210 to 220, may not be deadly under, ordinary conditions, they are dangerous. • •</p> <p>S. Pleading — Cured by Verdict. — When an issue is attempted to be made by a pleading, but by reason of some omission or imperfection therein, either of substance or form, it would not stand the test of a demurrer, yet if no demurrer is filed and the issue is treated throughout the trial as having been properly made, the verdict will cure the defect; but where there is no issue, and an absence of an effort to make an issue, the verdict will not be deemed to have supplied the omitted pleading/</p> <p>4. Judgment — Nunc Pro Tunc Order. — A nunc pro tunc order may not he entered after the expiration of a term based upon mere affidavits of what occurred at the trial; such an order may be entered only where there is some record evidence upon,which to base it.</p> <p>5. Judgment — Non-Obstante Veredicto. — Where a party asks for a peremptory instruction, 'to ,which he is entitled but which is not given, he is not thereafter entitled to a- judgment notwithstanding the verdict. _ ' '</p>

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

<p>1. Trial — Equity—Submission of Issues to Jury. — Although one of the parties in an equity suit is entitled to a trial of the issues rut of chancery, a motion for a jury after the case has been submitted comes too late.</p> <p>2. Depositions — After Submission. — A party cannot take depositions after a case has been submitted unless the order of submission has been set aside and leave granted to take other proof.</p>

<p>1. Judgment — Collateral Attack. — A judgment of a court having jurisdiction of the parties and of the subject matter imports absolute verity and is not subject to collateral attack, but can only be avoided by a direct proceeding brought for that purpose.</p> <p>2. Judgment — Collateral Attack — What Constitutes. — Any proceeding which has an independent purpose and contemplates other relief than the overthrowing of the judgment against which it is directed is a collateral attack.</p> <p>3. Judgment — Suit for Taxes — Former Judgment — Bar.—Where, in a suit by a city against a railway company for taxes for certain years, the city recovers the taxes with interest, and the railway company recovers on its counterclaim for certain license taxes which it was compelled to pay through a mistake of law and fact, and judgment is rendered in favor of the city for the difference, the judgment is a bar to a subsequent suit for the same taxes.</p>

<p>1. Taxation — Non-Resident Life Insurance Company — When Not Liable for Tax on Premiums. — A non-resident life insurance company is not liable for the taxes imposed under sections 4226 and 4280a, Kentucky Statutes, upon premiums accruing and collected after it ceases to do business in this State, upon policies of insurance -written -while doing business in the State.</p> <p>2. Overruled Cases. — Commonwealth vs. Provident Savings Life Assurance Society, 155 Ky., 197; Commonwealth vs. Illinois Life Insurance Co., 159 Ky., 589; Commonwealth vs. ’Washington Life Insurance Co., 159 Ky., 581; Provident Savings Life Assurance Society vs. Commonwealth, 160 Ky., 16.</p>

<p>Taxation — Non-Resident Life Insurance Company — Tax Upon Premiums. — Upon tbe authority of the opinion in the case of Illinois Life Insurance Co. v. Commonwealth, this day decided, former opinion withdrawn and judgment reversed with direction to dismiss petition.</p>

<p>Appeal from Jefferson Circuit Court (Division No. 3).</p>

<p>Continuance — Absence of Evidence. — In an equity case filed in 1908 and plaintiff’s depositions were taken in 1909 and defendant’s some three years thereafter and eighteen months after the taking of defendant’s proof, an amended answer was filed setting up facts thoroughly established by his proof and to which the pleading conformed, there was no error in refusing a continuance on the motion of plaintiff, especially when he did not point out in said motion any specific facts which could be proven by any named witness.</p> <p>Continuance — Want of Preparation. — When a suit for the settlement of a partnership shows a written settlement made between the partners and this fact is established eighteen months before the case is heard and an amended answer pleading the settlement is filed at the term that the cause is submitted, this does not justify a continuance by the plaintiff, especially when the cause has been pending for six years and no excuse is offered why it has not. been sooner prepared and disposed of.</p>

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

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

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

<p>1. Pleading — Construction.—A pleading will always be construed more strictly against tbe pleader.</p> <p>2. Trial. — There is no statute which authorizes a special verdict in an ordinary action.</p> <p>3. 'Contracts — Services of Daughter for Nursing Mother — Action to Recover. — Where a mother and daughter reside in the same family, the daughter can not recover compensation against the estate of the mother for services rendered the mother in waiting upon, caring for, nursing and personal attentions, unless the services were rendered under a contract, by which the services were to be paid for.</p> <p>4. Contracts — Services of Daughter in Nursing Mother — Action to Recover. — A contract between a mother and daughter, by the terms of which the daughter is 'to be paid for services rendered by the daughter in waiting upon, nursing and caring for the mother, will not be implied from' the fact that the services were rendered; nor from declarations of the mother to third parties, of her gratitude to the daughter, or the purpose of the mother to make compensation, or to the effect, that the daughter ought to be paid for her services or should be paid. Such declarations are not sufficient to prove that a contract for payment for the services has been made.</p> <p>5. Wills — Gifts—Ademption.—A gift made prior to the execution of a will can not be an 'ademption of a devise made the will.</p>

<p>1. Executors and Administrators — Sale and Conveyance of Real Estate — Power Conferred by Will. — Where in a will no express authority is given an executor to sell and convey real estate, yet from the nature' of the duties imposed upon him by the will or by law he cannot carry out the provisions of the will without exercising such authority, the power to sell and convey will be implied.</p> <p>2. Executors and Administrators — Power to Sell and Convey Real Estate — Legacies.—Where a will makes certain specific legacies and provides for their payment out of proceeds of real estate to be sold for that purpose, and under the law the duty rests upon the executor to carry out the provisions of'the will, the power to sell and convey the real estate will be implied.</p> <p>3., Executors and Administrators — Qualification'—Section 3388 Ky. Statutes. — Under the provisions of section 3888 Kentucky Statutes, where only one of two nominated executors, 'qualifies, he may do any and all things that the two might have done, had they both, qualified.</p> <p>4. Executors and Administrators — Power to Sell and Convey Real Estate — Parties.—Where an executor has the power of sale and conveyance, the devisees in the will are not necessary parties to an action hy him to specifically enforce an executory contract for the sale of the decedent’s real estate.</p>

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

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

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

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

<p>1. Trial — Instructions.—Bach party is entitled to have his theory of the case, if supported by evidence, presented to the jury by appropriate instructions. Instructions given in this case examined and held not to disregard or violate such right.</p> <p>2. Trial — Witnesses.—In the absence of an avowal of what a witness would have answered to a question asked, this court can not say the ruling of the trial court in sustaining an objection to the question was prejudicial error.</p> <p>3. New Trial — Newly Discovered Evidence. — Newly discovered evidence that is cumulative if it is decisive of a question at issue and could not have been produced at the trial by the exercise of reasonable diligence, may furnish grounds for a new trial. Evidence newly discovered in this case examined and held not to be of the required character to entitle appellant to a new trial.</p>

<p>Reformátion of Instruments — Action'to Reforrii Contract for’Fraud of Mistake. — In order 'to reform an executed contract for '■ fraud or mistake, the proofs of- the fraud or mistake must he clear and convincing; a mere preponderance of evidence is not enough.</p>

<p>1. Wills — ’Construction—Defeasible Fee. — Under a will, by which the testator devises to his wife certain property “to be hers to hold, use- and control and to be responsible to no one for her management as long as she shall remain my. widow,” and providing, “should she desire to marry again, before such marriage I want my estate as it shall then be found to be regularly administered under .the laws of Kentucky by a competent appointee of the court,” the wife takes her. defeasible fee, subject to be defeated by her remarriage and converted into á life estáte in one-third of the real property. ■ v</p> <p>2. Deeds — -Defeasible Fee — Alienation.—The 1 owner of a defeasible fee may sell the property, but cannot convey a perfect title. The title of the purchaser will be subject to defeasance.</p>

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

<p>1. Adverse Possession — Color of Title — Possession..—If one, although without color of title, enters upon lands, which are not in_ the actual possession of the owner at the time, and resides thereon, or encloses a portion of same, and claims to own same to a well ' defined, marked boundary, he is in the actual possession of his close, and in the actual possession, by construction, to the well defined, marked line to which he claims.</p> <p>2. Adverse Possession — Boundaries.—A sale and conveyance of lands, which one without color of title is residing upon and claiming to own to a well defined, marked boundary, is champertous, because in his adverse possession.</p> <p>3. Adverse Possession — Adjoining Land Owners. — Where persons own adjoining tracts of land, and one of them, with the intention of enclosing only his own lands, and without any intention to hold or claim any of the lands of his neighbor, but claims only to the true line, unintentionally appropriates some of the lands beyond the true line, he does not hold such lands so appropriated adversely.</p> <p>4. Adverse Possession — Title.—Where one acting under a mistake, takes possession of the lands of another, believing it to be his. own, up to a mistaken line, and claims and holds to it, his holding is adverse, and will ripen into a title if continued the statutory period.</p> <p>5. Adverse Possession — Intention.—It is ■ the intention and not the mistake which determines whether the holding is adverse or amicable.</p>

<p>Malicious Prosecution — Malice—Want of Probable Cause. — To sustain an action for malicious prosecution, it must affirmatively appear, (1) that tiie defendant was the proximate and efficient cause of putting the law in motion against the plaintiff in the action; (2) that he did so maliciously; and, (3) without probable cause. These three elements, malice, want of probable cause, and a procuring of the warrant or indictment, must concur.</p>

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

<p>1. Corporations — Transfer of Stock of — Failure to Register on Books of Corporation — Transfer Governed by tlie Law of State Where Corporation Created. — The validity of a transfer of stock in a (Kentucky corportion made in West Virginia, but attacked in a court of this State, is to be determined by the law of Kentucky.</p> <p>2. Corporations — Transfer of Stock of — Not Affected by Failure to Register Transfer on Books of Corporation. — A transfer of stock in a corporation, though not made on the books of the corporation, is valid as between the parties to the contract and also as to an attaching creditor having notice of the transfer before the issual and levy of his attachment.</p> <p>3. i Corporations — Stock in Not Subject to Attachment at Common Law — Attachment—Right to Purely Statutory. — At common law certificates of stock in a corporation were not subject to attachment. The process of attachment as a remedy in this State, being purely statutory, is governed by sections 203-236, inclusive, Civil Code.</p> <p>4: Corporations — Dissolution of — When Valid. — Although dissolution of a corporation is effected without formal notice to the proper official of the State in which it is located, such dissolution is not invalid, if done. with. the consent of all the stockholders of the corporation, after provision is made for tlie payment in full of its debts. One who is neither a stockholder nor creditor of a corporation cannot complain of an arrangement made between such corporation and certain of its stockholders, whereby the latter, preparatory to its dissolution, in consideration of the turning over to them of its assets, paid its debts.</p> <p>5. Corporations — Negotiable Bonds of — When Not Subject to Attachment. — The negotiable bonds of a corporation cannot be attached where the corporation resides, and the bonds are not. Such bonds, like money or a negotiable note, pass by delivery and can only be attached by actually locating them and serving the attachment upon the person having possession of them.</p> <p>6. Fraudulent Conveyances — Preferential Transfer of — When Will Not be Set Aside. — A transfer of proprety, though preferential, and, therefore, fraudulent as to creditors, will not oe set aside or held to be an assignment for the benefit of creditors, unless attacked on this ground and within, six months from the date of the transfer.</p>

<p>Statutes — Constitutional Law — Foreign Insurance Companies— Taxation — Regulation—Section 63Y, Kentucky Statutes — Validity. —Section 637, Kentucky Statutes, providing that when, by the laws of any other State, any taxes, fines, penalties, deposits of money, or of securities or other obligations, prohibitions or requirements, are imposed upon insurance companies organized or incorporated under the laws of this State and transacting business in such other State, greater than those imposed upon similar companies by the laws of this State, the same taxes, fines, penalties, deposits, examinations, obligations and requirements shall be imposed upon all insurance companies doing business in this State which are organized under the laws of such State, is not unconstitutional because it violates section 60 of the Constitution, providing, with certain immaterial exceptions, that no law shall be enacted to take effect upon the approval of any other authority than the General Assembly, or contravenes sections 171, 180 and 181 of the Constitution with respect to uniformity of taxation.</p>

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

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

<p>Deeds — Construction of Words Giving Power to Sell. — Where a deed conveyed land to husband and wife with the right of sur-vivorship, coupled with the condition that if the survivor should marry, one-half of the estate should go to the heirs of the deceased, “Provided always that no sale has taken place before death,” the grantees were invested with the. power to sell, although the sale was merely made for the purpose of securing a reconveyance of the property free from the limitation imposed in the deed by which they obtained it.</p>

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

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

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

<p>1. Judgment — Judgment on Merits — Judgment by Default — Control of After Term. — Where defense is made and, after trial, a judgment is rendered on the merits, the court, after the expiration of the term at which the judgment is rendered, loses control of the judgment, except in actions brought pursuant to sections 344 and 518, Civil Code, unless the motion for a new trial, or to set aside the judgment, is made within the time prescribed by the statute. But a motion to set aside a default judgment, made at any time during the term at which it is rendered, suspends the judgment and the court has power after the term to sustain the motion and set the judgment aside.</p> <p>2. Judgment — Default Judgment — Power to Set Aside. — Discretion.— In the matter of setting aside default judgments, trial courts have a wide discretion, which will not be interfered with except in case of abuse. . .</p> <p>3. Divorce — Husband an'd Wife — Judgment as to Property Rights— Restoration of Property — Alimony—Error.—It is not error to set aside a judgment awarding to the wife certain property which she acquired from her husband during the marriage and in con-' sideration and by reason thereof, on the ground that its value was no more than the alimony to which she was entitled, where no claim for alimony was presented and the relief was granted on the condition that she amend her pleadings and present her claim for alimony.</p>

<p>1. Fraudulent Conveyances — Infants—Necessary Party -to Action to Set Aside Conveyance of Property to. — Where a husband left his wife thirteen years before his death and thereafter lived with a son, and shortly before his death, by a conveyance in writing duly recorded, gave the son’s infant child, the donor’s grandson, his entire personal property, consisting of $198.00 in money, such conveyance will not be set aside at the suit of the donor’s wife, without making the infant donee a party to the action, although its execution may have been procured by the' fraud of the donor’s son, the father of the donee.</p> <p>2. Contracts — Parent and Child — Support of Parent by Child — When Compensation Not Allowed For. — In the absence of an express contract on the part of the deceased father to pay therefor, the law presumes that board, nursing and expenditures furnished to and-made for him by the son were gratuitous, and the son will not be allowed compensation therefor.</p>

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

<p>Continuance — Discretion.—A motion for a continuance is addressed to the sound discretion of the trial court, and unless it appears that it abused its discretion, its action will not be disturbed.</p>

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

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

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

<p>1. Appeal and Error — Final Order. — An order of the court quashing the return on a summons is not final or appealable.</p> <p>2. Appeal and Error — Remedy of Plaintiff When1 Return on Summons is Quashed. — When the return on a summons is quashed, if the court enters an order dismissing the action for want of jurisdiction over the person of the defendant, as it may do, an appeal may be prosecuted from the order.</p>

<p>1. Master and Servant — Negligence—Presumption of. — Mere proof of accident or injury to the servant does not raise the presumption of negligence on the part of the master.</p> <p>2. Master and Servant — Res Ipsa Loquitur. — The doctrine of res ipsa loquitur does not apply where the thing which causes the injury is not shown to he under the management and control of the defendant or its servants.</p> <p>3. Negligence — Evidence.—Where the evidence is equally consistent with the existence or non-existence of negligence causing the injury to the plaintiff, he must fail.</p>

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

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

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

<p>Principal and Agent — Sale by Traveling Salesman — Not Binding Until Accepted by Principal. — Where the purchaser knew or had reason to know that a traveling salesman’s authority went no further than to solicit and transmit orders, in the absence of a showing of special authority on the part of the salesman, a writing given the purchaser by the salesman purporting to be a sale of flour by the salesman’s principal, evidences only a conditional sale, that is, a sale if approved by the principal within a reasonable time after his receipt of the order; the approval of the principal being necessary to complete the sale.</p>

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

<p>1. Joint Tenancy — Entry of One Joint Owner Inures to Benefit of All. — Tlie entry on land of one joint owner inures to the benefit of all the owners, the legal presumption being that the entry was made according to the right of the party making it, and for the purpose merely of taking possession of his undivided interest.</p> <p>2. Adverse Possession — When Amicable Will Not Become Adverse.^ Where possession is in its origin amicable, it will not become adverse so as to set the statute running unless the property is, . in fact, held adversely and in such a manner as to apprise the other party, or a person of ordinary prudence, that the holding is adverse.</p>

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

<p>1. Mines and Minerals — Purchaser of Lease — Notice.—Under the evidence the purchaser of a coal mining.lease is held to have had notice of an amendatory lease previously made, which had not been placed upon the record, and that the physical facts are such as to have put the purchaser upon inquiry.</p> <p>2. Mines and Minerals' — Purchaser of Lease — Notice.—Where one coal mining company buys a lease which is being operated by another company, and the general manager of the selling company has actual knowledge of the provisions of an amendatory lease which has not been recorded, and continues to be the manager of the operation for the buying company, his knowledge will be imputed to the latter company.</p> <p>3. Mines and Minerals — Purchaser of Lease — Notice.—Where the amendatory lease of which the purchaser has notice is so intimately connected and interwoven with another contract entered into by the selling company that they are in effect one contract, and the amendatory lease refers on its face to the other contract, and the purchaser, after taking possession of the property, acts under the contract so referred to in the amendatory lease, he will be held to have assumed the obligations of that contract.</p> <p>4. Mines and Minerals — Leases and Contracts. — Under a lease of 370 acres of land for coal mining purposes wherein the lessees are given the exclusive right to mine coal therefrom and there is enumerated therein all the usual privileges given to mining companies, including the use of the surface thereof for chutes, inclines, side tracks, railroad switches, tramways, miners’ houses, etc., and after the granting of all these privileges the lessees expressly reserve to themselves the right to the use of the surface of the said tract of land for any purpose which is not inconsistent with or harmful to the mining operation, the lessees, to the extent of their reasonable .necessities for mining purposes, have the paramount right to the use of the surface, But not the arbitrary right to exclude the lessors.</p> <p>5. Mines and Minerals — Leases and Contracts. — The lessees’ right to the use of the surface under the terms of such a lease is confined to whatever .is reasonably necessary in the efficient operation of the mines, and as long as there is building space reasonably suitable for the purpose outside of the inclosed lands and fields being farmed by the lessors, the lessees will not( be permitted to build on such inclosed lands so as to exclude the lessors therefrom.</p> <p>6. Mines and Minerals — Leases and Contracts. — The fact that houses may be built cheaper on the inclosed land, or that houses located thereon may be more convenient, does not authorize the exclusion of the lessors therefrom; the rights of the lessees must be measured' by their reasonable necessities in the mining operation, rather than their mere convenience.</p> <p>7. Nuisance — Pollution of Supply of Mine Water. — The operation of a saw mill by the lessors on the tract of land where the mining operation is being carried on, at' a point thereon which results in the pollution of waters of a stream from which the mining opera-. tion derives its supply of water, is an interference with the mining operation, and the chancellor will require the mill to be removed.</p> <p>8. Mines and Minerals — Leases and Contracts. — Where the mining lease gives to the lessees the right to the use of certain timber to be used on the leased premises and no other, the lessees will be enjoined from using timber taken from that tract of land in its mining operations on other lands.</p> <p>9. Mines and Minerals — Leases and Contracts. — Where the lessees are given the right to use the premises described and all Shafts, tipples, etc., that may be thereon, for the purpose of mining and removing coal from other lands adjacent thereto which they may thereafter acquire, the lessees may build miners’ houses on the leased premises for occupation by miners engaged in its mining operations on other lands.</p>

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

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

<p>1. Witnesses — Confidential Relations and Privileged Communications —Husband and Wife. — Both, the husband and wife are prohibited by section 606 of the Civil Code from testifying concerning any communication between them during marriage; and the word “communication” as used in said section includes not only statements, but embraces all knowledge obtained by reason of the marriage relation, and which, but for the confidences growing out of the relation, would not have been known.</p> <p>2. Witnesses — Divorced Wife May Testify Against Former Husband.— A divorced wife may testify in an action against her former husband upon any matter occurring while the marriage existed which was not a confidential communication between them, and knowledge of which she did not obtain by reason of the marital relation.</p> <p>3. Witnesses — Divorced Wife or Husband Competent to Testify Against Other. — A divorced husband or wife being a competent witness for or against the other, the judgment of divorce is the best evidence of the divorce and competent for the purpose of qualifying the witness, but for no other purpose.</p> <p>4. Husband and Wife — Alienating Affections — Judgment in Divorce Suit Not Bar to. — A judgment in a divorce suit is not a bar to an action between one of the parties to that action and another for alienation of the wife’s affections.</p>

<p>1. Nuisance — Abatement and Injunction. — Where an individual is engaged in a business which is in and of itself injurious to the peaceful and comfortable enjoyment of the neighboring homes, any owner of any such home may enjoin the continuance of such business, and it is competent for any number of such owners' injuriously affected to join in a suit for the abatement of the nuisance; and the same is true when the business is riot in and of itself injurious in the manner stated, but where the nuisance producing the injuries consists in the manner of the operation of the business.</p> <p>2. Nuisance — Abatement and Injunction. — Where a nuisance is so conducted as stated above within a thickly populated city, town or community, the right of action to abate it is given to one who may become such citizen after the beginning of the acts constituting the nuisance.</p> <p>3. Nuisance — Abatement and Injunction. — Where a perfectly legitimate business, which is complained of as a nuisance, is conducted in a city, town or thickly populated community, the evidence establishing the nuisance must be 'clear, positive and convincing before a court of equity will interfere to abate it, aud annoyances and inconveniences ordinarily incident to the inhabitants of such cities, towns and communities from the operation of usual and necessary commercial enterprises will not be adjudged to be a nuisance and will not be abated by the equitable injunctive remedy.</p> <p>4. Nuisance — Abatement and Injunction — Operation of Quarry With Use of Explosives. — Where the owner of a quarry operates it with the use of dynamite, the explosions from which are so extensive as to jar the neighboring houses and in some instances to shake the plastering from the walls thereof and at night to so operate or permit to be operated the machinery in such a way as to disturb the quietude of such neighboring houses so that the inhabitants are prevented from sleep or rest, such acts constitute a private nuisance as to the owners of such premises, and when they are thoroughly established by the proof they will be enjoined.</p> <p>5. Nuisance — Abatement and Injunction. — Where the owners of the premises affected by such an establishment have stood by without complaint and permitted large expenditures of money in the construction, equipping or improvement of such an establishment, its operation will not he enjoined unless the nuisance, as well as the extent of the injuries, are each established by the most clear and convincing testimony.</p> <p>6. Nuisance — Abatement and Injunction — Damages.—-A private individual, if his premises, or the reasonable enjoyment thereof, are injured, or damaged by a nuisance, which he sustains to a greater extent than the public generally, may sustain an action to abate the nuisance although it may also be a public one.</p> <p>7. Nuisance — Abatement and Injunction.' — The remedy by injunction to abate a nuisance will be more readily extended to a private individual where an injury to the right of enjoyment is invaded than where a physical injury to his premises is sustained upon the ground that the remedy at law for the latter would be much more adequate than for the former.</p>

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

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

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

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

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

<p>1. Railroads — Duty of Railroad Company to Persons or Teams Near Track — No Duty to Slacken Speed or Give Signals. — Where a team was left standing near a railroad track by the owner, where there was no public crossing, and neither the owner nor team was near enough to be struck by passing trains, the railroad company owed to him no duty to slacken the speed of its trains or to give signals of their approach.</p> <p>2. Railroads — Same—When Allegation Should be Stricken From Petition. — Tested by the above rule the averments of the petition that the unusual speed of the train and its failure to signal its approach caused the fright of the team and consequent injuries to the owner, did not state a cause of action; therefore the court erred in overruling the railroad company’s motion to strike them out.</p> <p>3. Railroads — Negligence—When Allegations of Petition Not Sufficient. — The allegation of a petition that the fright of plaintiff’s mules was caused by the sight and noise of a train, is not sufficient to state a cause of action, in the absence of the additional allegation that such noise was unusual or unnecessary.</p> <p>4. Railroads — Operation—Duty of Railroad Company as to Persons or Teams Not on Track. — There is no rule of law imposing upon a railroad company the duty to maintain a lookout for the presence of persons or teams near the track, or to use ordinary care to discover their presence. As to persons or teams not on the track, the duty to observe care begins only when their danger is discovered.</p> <p>5. Railroads — Duty to Person or Team Not on Track — When Case Should Not go to Jury. — There being no duty on the part of the railroad company’s trainmen to observe care to discover the presence of persons or teams near the track, but only the duty to use ordinary care to prevent injury to them after discovering their peril, and there being no evidence to show that the railroad company’s servants in charge of the train discovered plaintiff’s peril in time to do-anything to prevent his injury; and the allegation of the petition as to the railroad company’s negligence in this respect being the only one even inferentially stating a cause of action, the court should have peremptorily instructed the jury to find for the railroad company.</p> <p>6. Railroads — -Contributory Negligence — When it Will Prevent Recovery.- — Where plaintiff in his amended petition states that if hitched or removed to a greater distance from the track his team would not have become frightened by a passing train, and it appears from his own evidence that even if the train had whistled he did not have time to so hitch or remove them, after hearing the signal, his failure to so hitch or remove the team before leaving them is such contributory negligence as -will prevent a recovery.</p> <p>7. Negligence — Contributory Negligence — When Not Excusable.— Where the danger of damage to his mules and wagon was caused by plaintiff’s own contributory negligence, such negligence -will prevent a recovery by him for injuries sustained in attempting to prevent damage to them; leaving out of consideration whether or not he was negligent in the method adopted in such attempt.</p>

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

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

<p>1. Master and Servant — Personal Injuries — Evidence—Peremptory Instruction. — Evidence examined and the action of the trial court in overruling defendant’s motion for a peremptory instruction held to he error, because the evidence showed affirmatively that plaintiff, at the time of the accident, was the superior and in immediate control of the men whose acts caused the injury.</p> <p>2. Damages — Excessive Damages. — $10,000 damages held flagrantly excessive for fractures of one arm.</p> <p>3. Evidence' — X-Ray Photograph — Admissibility.—Admission of X-ray pictures as evidence is error, unless properly accredited, and such error is prejudicial unless the verdict is supported by the weight of the evidence.</p>

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

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

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

<p>1. Courts — Fiscal Courts — Courts of Record — Appropriation of Money. — Fiscal courts are courts of record as well as courts of limited jurisdiction and can only appropriate money fór purposes authorized by law, and the order should show specifically what the appropriation was for.</p> <p>2. Courts — Fiscal Courts — Recovery of Money Unlawfully Appropriated by. — If the fiscal court pays the claim of an officer or other person without authority of law, or appropriates money without such authority, the amount so paid may be recovered in a suit against the person or officer receiving it.</p> <p>S. Officers — Can Only Receive Fees and Compensation Allowed by Law. — Under section 1749 of the Statutes no officer can receive or demand for his services any compensation not allowed by lavy, or any.fee for services when the law has not fixed the compensation, or fee for services not actually rendered.</p> <p>4. Officers — Recovery of Public Money Unlawfully Paid to. — Where money illegally collected remains in the hands of the officer, it may be recovered from him, but if it has been paid over by him to the proper authorities as required by la.w, it cannot be recovered in a suit against him unless he had notice that he would bo called on to refund it before paying it over.</p> <p>5. Courts — Fiscal Courts — Must Speak by Records — Explanation of Record. — The fiscal court must speak by its records, and its records cannot be contradicted or supplied by parol evidence. But where the record is ambiguous, parol evidence may be offered to explain its meaning.</p> <p>6. Courts — Fiscal Courts — Unauthorized Allowance of Claim of County Clerk — Recovery of — Suit by a Taxpayer. — In a suit by a taxpayer money appropriated to pay claims presented by the county clerk may be recovered from the clerk if the appropriation was unauthorized.</p> <p>7. Courts — Fiscal Courts — Necessity for Appropriation Will Not Justify It Unless Authorized by Statute. — When the statute provided for the appointment of a deputy clerk for the juvenile court, the fiscal court was not authorized to appoint and compensate two deputies, although the business of the court required the employment of two.</p> <p>8. Courts — Fiscal Court — Collateral Attack on Orders of — Remedy.— When the fiscal court makes an authorized appropriation its right so to do cannot be questioned in a collateral proceeding; for example, in a suit against the person receiving the money the remedy is in a direct action against the fiscal court.</p>

<p>Deeds — When May Be Sufficient' to Establish Possessory Title of Boundary. — A deed insufficiently describing a boundary of land claimed to have been conveyed thereby, treated as evidence of ■a parol conveyance, and in connection with evidence of more than fifteen years’ adverse possession by the grantee of the definite boundary' claimed, held to establish possessory title in said grantee to said definite boundary.</p>

<p>1. Appeal and Error — Former Opinion^ — Questions Considered Ad? versely, Decided. — Where, upon the first appeal of a case, the opinion does not contain any notice of errors relied upon for reversal, and these same alleged errors appear and are relied upon for reversal upon a second appeal of the case, they will he considered as having been decided adversely to the contention of the appellant upon the first appeal.</p> <p>2. Damages — Personal Injuries — Impairment of Earning Power.— Where, in a suit for damages for personal injuries, the complainant seeks special damages for loss of time on account of his • injuries, and, also, damages on account of the permanent impairment of his ppwer to earn money, the court should, if requested, direct the jury to assess the allowance for the permanent impairment of his power to earn money, to begin at the point where the allowance for his loss of time ends, but the failure of the court to make such direction is not reversible error, in the absence of a request to do so.</p>

<p>1. Deeds — Delivery.'—A deed, to be effectual against a subsequent purchaser, must have been delivered to the grantee, or to some one for him, and accepted by the grantee.</p> <p>2. Deeds — Delivery.—The delivery of a deed may be actual or it may be constructive, but, in either state of case, the intent of the grantor to transfer the title to the grantee is essential and necessary to constitute a delivery.</p> <p>3. Deeds — Delivery—Intention Alone Will Not Constitute Delivery.— Intention alone will not constitute a delivery of a deed, but there must be some act, which evidences the parting of his power and control over the deed for the benefit of the grantee.</p> <p>4. Deeds — Voluntary Deed for Benefit of Infant — Delivery.—Where a parent makes a voluntary deed for the benefit of his infant child if it is beneficial to the infant, the law presumes an acceptance of it, but a delivery of such deed is never presumed without evidence that it was the intention of the parent to deliver the deed, and thereby pass the title from him to the infant, accompanied by some act evidencing his parting with control over the deed for the benefit of the infant.</p>

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

<p>Contracts — Approval of Performance — Good Faith — Pleading.—Under a contract for the manufacture and purchase of railroad cross ties, providing that if at any time the inspection to be made by the purchaser is not satisfactory to1 the seller, or the ties are not satisfactory to the purchaser, the contract is to be null and void, each party is the sole judge of his own satisfaction and is not liable in damages unless, in declaring his dissatisfaction, he acts fraudulently or in bad faith, and in an action for damages against the purchaser for an alleged breach of the contract, a petition that alleges that the purchaser acted arbitrarily and ought to have been satisfied with the ties, is not sufficient.</p>

<p>1. Ejectment — Title to Support Action. — A plaintiff in. a suit of ejectment, or a suit for trespass, when his title is denied, must recover on the strength of his own title and cannot rely upon the defective title of the defendant.</p> <p>2. Boundaries — Courses and Distances — Interpretation of Deeds.— Courses and distances in the interpretation of deeds when there is a conflict should surrender to natural objects mentioned in the deed, and when there are two or more natural objects contended for that one will be adjudged the correct one which conforms to the apparent intention of the parties and accords practically with the courses and distances, as well as the quantity of land conveyed.</p> <p>3. Boundaries — Courses and Distances — Natural Objects. — The courts will not adopt a natural object, sought to be established by parol, as a beginning corner, when to do so would result in ignoring the courses and distances mentioned in the deed and in the conveyance of much more land than was specified in the deed.</p> <p>4. Adverse Possession — Constructive Possession — Boundaries.—Constructive possession to a well-defined marked boundary of a tract of land resulting from an actual possession .of a portion of the tract with, a claim to the marked boundary, will not be extended beyond the marked boundary so as to cover an adjoining tract with a different chain of title purchased by the occupant subsequent to the purchase of the first tract, a portion of which he is in the actual possession. In order for him to have constructive possession of the second tract to' its boundaries, to ripen into title by adverse possession of such tract, he must have been in the actual possession of a portion of it with a claim to its marked and defined boundaries, for the statutory period.</p>

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

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

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

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

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

<p>1. Adoption — Inheritance.—The right of one, not the child of another, to inherit from such other, as though he were a child of such other, derives its entire life from the statute, and the decree of the court is tbe source for determining the rights of the parties under the statute and is conclusive.</p> <p>2. Adoption — Judgment—Collateral Attach. — A final decree of adoption is conclusive upon all parties interested in the proceedings, and such a judgment can not be collaterally attacked.</p> <p>3. Adoption — Inheritance.—The right of an adopted child to inherit from its adoptive parent is based upon the statute, and not upon common law nor civil law status.</p> <p>4. Adoption — Inheritance.—The court is empowered to declare an adopted child to be an heir of an adoptive father, not because he is awarded the parental control of the child, but the court may grant the parental control of the child to the adoptive father, because the child is made his heir.</p>

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

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

<p>1. Appeal and Error — Oral Evidence Not in Record — Effect of.— Where upon the question of jurisdiction in the lower court both affidavits and oral testimony were introduced by the parties, and upon appeal the oral evidence is absent from the bill of exceptions, the appellate court will not be authorized to hold that the trial court erred in overruling the motion to quash the summons and return. Since one who prosecutes an appeal upon a partial transcript does so at his peril, if it appears that part of the testimony used upon the trial is not copied into the transcript, it will be presumed to support the ruling of the court upon the question in connection with which it was offered.</p> <p>2. Appeal and Error — Conflicting Evidence — Issues Properly Submitted to Jury. — In an action for the alleged breach of a contract to cut and saw timber, evidence examined and held sufficient upon each, issue of fact to require submission to the jury.</p> <p>3. Trial — Taking Question From Jury — Conflicting Evidence. — In an action upon defendant’s alleged breach of a contract, in failing in each of several years to saw or deliver the contract quantity of lumber, where no admission of such failure is contained in any pleading filed by them and where, though the great weight of the evidence shows such failure, some of defendants’ evidence tended to excuse it upon grounds set out in the answer, the question whether there was a failure on the part of defendants to deliver the contract quantity of lumber in any of such years, and to what extent, if any, such failure was excused by the acts of plaintiff, should have been submitted to the jury.</p> <p>4. Log's and Logging — Measure of Damages. — Where defehdants undertook to saw and deliver on board cars a certain amount of lumber each year for several years, and it is apparent from both pleading and proof that such lumber would be for sale on the market as at the time and place the contract required it to be delivered, its market price at such place and time must be accepted as its market value; therefore, the market price or profits that might have been realized elsewhere had no place in estimating the damages sustained by plaintiff from defendants’ failure to saw and deliver on board cars, at the place of delivery fixed by the contract, the whole amount contracted for in each year.</p> <p>E. Damages — -Interest—When Not Recoverable. — Where, as here, the contract neither provides a penalty payable under certain conditions, nor contains any stipulation fixing an amount to be recovered as liquidated damages, interest cannot be allowed by way of damages.</p> <p>6. Logs and Logging — Damages for Breach of Contract — Measure of. —The damages recoverable for defendants’ failure to saw and deliver in each of several years the full amount of lumber as agreed in their contract with plaintiff, are the profits that would have accrued to plaintiff from defendants’ performance of the contract, such profits to be ascertained by first determining from the evidence the market value at the time and place of delivery fixed by the contract of such part of the lumber as was not delivered each year, and deducting therefrom the prices plaintiff would under the contract have paid for the manufacture and delivery of same, if delivered, and the value of such of the timber, if any, whether in trees or logs, left unsawed in such year, as would, if sawed, have supplied the deficiency in lumber.</p>

<p>1. Frauds, Statute of — Promise to Pay Debt of Another — When Not Within Statute. — If one with the design to further his own ends induces another to forego or desist from exercising his rights under the law to secure his debt against a third party, promises to pay such debt, the promise is not within the statute of frauds, but is an original undertaking by the promisor.</p> <p>2. Frauds, Statute of — Promise to Pay Debt of Another — When Not Within Statute.- — -One who buys an interest in a partnership and thereby becomes interested in the carrying out of a contract by the partnership out of which he expects profits and makes an oral promise to pay a previous debt of the partnership to prevent threatened legal proceedings, is bound by such promise, although it turns out that he got nothing by reason of his purchase of an interest in the partnership; such promise being an original undertaking by him for his own purposes and not merely a promise to pay the debt of another.</p>

<p>1. Corporations — Creditors—Equitable Lien Upon Assets in Favor of. —The assets of a corporation are subject to an equitable lien in favor of its creditors, who may follow the corporation’s assets, or the proceeds thereof, into the hands of whomsoever they can trace them, and subject such assets to the payment of creditors’ claims, except as against a bona fide purchaser for value.</p> <p>2. Corporations — Equitable Lien Upon Assets of — Good Faith — Under the rule above announced where the assets of a failing corporation are conveyed, in good faith, and for their full value, to satisfy a first mortgage lien thereon, the transaction will not be ■ disturbed.</p>

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

<p>1. Master and Servant — Child Labor Law — Dangerous Occupation — ■ Question for Jury. — Under the concluding clause in subsection 11 of the Child Labor Law that “No child under sixteen years of age shall be employed at any occupation dangerous or injurious to health or morals, or to lives or limbs,” and providing that the decision of such matter shall he left to the county physician or city health officer, if no such decision is had by such officer previous to the employment after a full and fair disclosure to such officer of the nature of the duties expected of the child and the physical and moral conditions which will surround him while in the performance of his duties, the question whether the occupation was or not dangerous to lives or limhs will he left to the jury.</p> <p>2. Master and Servant — Child Labor Law — Dangerous Occupation— Certificate of Physician. — The certificate authorized by subsection 2 of the Child Labor Law to be issued by the school Superintendent was intended merely to enable the school authorities to keep trace of children of school age, and was not intended to dispense with the necessity of the issual by the county physician or city health officer of the certificate of employment required by subsection 11 before employing a child in an occupation which might or might not be deemed dangerous to lives or limbs.</p> <p>3. Master and Servant — Child Labor Laws — Dangerous Occupation— Question for Jury.' — In a case where a boy under sixteen years of age was employed as a messenger without first procuring a certificate from the county physician or city health officer, and the evidence shows that in performing his duties the boy was required to use a bicycle and was required to keep the bicycle in the basement and it was necessary for him to go to the basement fifteen or twenty times a day to get his bicycle and in so doing was required to use a freight elevator, which the evidence tended to show was faultily constructed and carelessly maintained, the question as to whether the occupation was dangerous to lives or limbs was properly left to the jury.</p> <p>4. Master and Servant — Child Labor Law — Dangerous Occupation. — ■ The purpose of the Child Labor Statute was to throw around children engaged in any occupation all possible safeguards to the end that they may reach maturity morally and physically fitted for the higher duties of citizenship.</p>

<p>1. Mechanics’ Liens — Liability of Property Owner — Rights of Subcontractors. — Where the original contractor completes the work in accordance with the contract, the property owner will be responsible to mechanics, materialmen and subcontractors who have observed the requirements of sections 2463-2468 of the Statutes for the amount of their claims that do not aggregate more than the contract price, although the owner may have paid the original contractor the full contract price.</p> <p>2. Mechanics’ Liens — Liability of Property Owner — Rights of Subcontractors. — Although the improvements may not have been constructed in accordance with the contract and hence the owner does not owe the full contract price, he will yet be liable to subcontractors, materialmen and mechanics who have observed the requirements of the statute to the extent of the reasonable value of the improvement to him, and he cannot set off any claim for damages he may have against the original contractor for failing to perform the work according to contract against the claims of the subcontractors, mechanics or materialmen, although he may have an abatement of their claims to the extent that he was damaged by their failure to perform the contracts they had made with the original contractor.</p> <p>3. Mechanics’ Liens — Liability of Property Owner — Rights of Subcontractors. — If the improvement contracted for is wholly worthless to the property owner on account of the failure of the contractor to fulfill the contract, then a subcontractor, mechanic or materialman can assert no claim against the property owner or lien on the property, although he may not be responsible for the conditions that resulted in the improvement being worthless and of no value to the property owner.</p> <p>4. Mechanics’ Liens — Liability of Property Owner — Rights of Subcontractors. — In every state of case the property owner 'may have an abatement of the claim asserted by the subcontractor, mechanic or materialman to the extent that the property owner sustains damages by his failure to perform his part of the contract.</p>

<p>1- Sales — Warranty—Duty to Return — Waiver of Breach.. — Where a sale is executed and the provision of the contract with respect to the return of the property by the buyer is not imperative but merely permits the buyer to return the property, he may, at his election, resort to that remedy, or he may retain the article and recoup his damages for the breach of the warranty in an action by the vendor for the price, in which event, his retention of the property does not constitute a waiver of the breach of warranty.</p> <p>2. Pleading — Answer and Counter-claim — Breach of Warranty — Sufficiency. — Where, in an action for the recovery of the purchase price of an electric light plant, the defendant seeks, by counterclaim, to recover the amount paid on the purchase price on the ground that the plant failed to work, he is not entitled to recover unless he alleges a return, .or offer to return, the property, where the property is not absolutely worthless. He may, however, retain the property and counter-claim for damages.</p> <p>S. Trial — Instructions—Actions for Price of- Machinery — Breach of Warranty — Counter-claim for Damages. — An instruction telling the jury to find for plaintiff the balance of the purchase price of an electric light plant, unless they believe that the engine, if kept in proper condition and properly operated, would not develop six horse power and sufficient to operate the plant successfully and continuously with 150 Tungsten lamps of 16 and 8 candle power' and one arc lamp, is erroneous, for it authorizes a finding in favor of defendant even though the jury may believe that defendant’s damages were less than the amount due plaintiff.</p> <p>4. Trial — Instructions—Breach of Warranty — Measure of Damages.— In an action to recover the balance due on the purchase price of an electric light plant sold and installed by plaintiff, where defendant counter-claimed for damages for a breach of warranty, an instruction telling the jury to find for defendant as damages the-difference .between what they may believe from the evidence the-plant as installed to have been reasonably worth and the amount paid threon by .the defendant, -to-wit, the sum of $200.00, is erroneous in assuming that the plant, if it did not comply with the-warranty, was worth less than $200.00.</p> <p>5. Damages — Breach of Warranty — Measure.—The measure of damages for a breach of warranty of an electric light plant is the difference between the value of the plant as warranted and its value as installed.</p> <p>6. Trial — Instructions—Breach of Warranty — Counter-claim 'for Damages. — Where plaintiff sues to recover the purchase price of an electric light plant and defendant counter-claims for damages for a breach of warranty, proper instructions indicated.</p>

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

<p>Wills — Issue—Construction of Statutes. — The word issue in Section 4841 of the Kentucky Statutes means lineal descendants, and does not include ancestors.</p>

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

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

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

<p>1. Master and' Servant — Duty of Master — When Servant Assumes Risk. — It is the duty of the master to furnish the servant reasonably safe machinery with which to work, and to use reasonable care to see that it is kept in repair; but where, as here, the servant actually knows of the defective condition, which he himself caused, and the danger to be apprehended therefrom, and continues without complaint to use such machinery, he assumes the increased risk in addition to the ordinary risks of his employment.</p> <p>2. Master and Servant — Risk Assumed by Infant Employe. — The want of care of an employe cannot be excused on the ground of his youth, where it appears that he was eighteen years of age, intelligent, normal physically and capable of properly attending to the ■duties of his employment; that he was carefully instructed how to operate the machine at which he was put to work, and had operated it for two months, and also that he not only knew of the defective condition thereof but had been warned by his fellow servants of the danger to be apprehended from its continued use.</p> <p>-3. Master and Servant — When Evidence Insufficient. — Where the evidence fails to show how the servant lost his life it will not be presumed that the master was guilty of negligence, and where, as in this case, his death may as reasonably be attributed to a cause that will excuse the master as to one that will subject him to liability, then the recovery cannot be had.</p>

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

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

<p>1. Carriers — Street Railroads — Passenger A*tempting to Alight From Car Before It Stops — It is not negligence per se for a passenger on a street car t-o make preparations to alight from the car before it comes to a standstill or to get off before the ear actually stops; but this question can only arise in cases in which the carrier seeks to charge the passenger with contributory negligence in attempting to alight from the car before it actually stops and when the passenger claims that the carrier has been guilty of some negligence in connection with his act in attempting to alight.</p> <p>2. Carriers — Street Railroads — Passenger Attempting to Alight From Car Before it Stops — Instructions.—Where the passenger claims that he was injured by the sudden starting of the car after it had stopped for the purpose of permitting him to alight, and there was no claim of any negligence on the part of the motorman before the car came to a stop, if the passenger, before the car stops, attempts to alight, he takes the risk of any injury that may happen; and in cases like this it is proper to instruct the jury without qualification that if the passenger attempted to alight from the car before it came to a stop, they should find for the defendant.</p> <p>3. Trial — Instructions.—When the case is submitted to the jury under instructions presenting the plaintiff’s theory of the case, he cannot complain because the court did not authorize a recovery in his behalf on some other theory.</p>

<p>1. Reformation of Instruments — Mistake—Evidence.—In a proceeding to reform and correct an alleged mistake in a deed evidence examined and found to be insufficient to establish the alleged mistake.</p> <p>2. Limitation of Actions — Reformation of Instruments. — A suit to reform and correct a deed executed through an alleged mistake must be brought within five years from the date of the execution of the deed under section 2515 of the Statutes, or within five years from the discovery of the mistake, but in no event longer than t.en years from the commission of the mistake. (Section 2519, Ky. Statutes.)</p> <p>3. Infants — Deed Executed to — Delivery—Acceptance.—It is a sufficient delivery of a deed executed to an infant that the grantor causes same to be recorded in the county court clerk’s office and especially so when the grantor is the parent of the grantee, and if the conveyance is beneficial to the infant grantee, equity will presume an acceptance by him unless within a reasonable time after he arrives at age he repudiates or declines to accept the deed.</p>

<p>1. Insurance — Application for Insurance — Section 679 Kentucky Statutes. — Section 679 of the Kentucky Statutes does not forbid the right to look to non-filed documents therein mentioned in order to ascertain the thing agreed to he done by one of the parties, when such thing is not shown by the certificate or policy, or any document or writing, or copies thereof, attached to such certificate or policy, and in such cases the non-filed document may be . resorted to for the purpose of ascertaining the thing agreed to but not shown by the certificate or policy, or papers attached thereto.</p> <p>2. Insurance — Application for Insurance.' — The said section of the • statute does not prevent the insured from relying upon the Constitution and by-laws of the insurance company or association for the purpose of ascertaining the sum which such company or association agreed to pay upon the event provided against, where such sum is not to be found in the certificate or policy, or from anything attached thereto, as this would not he introducing any new element into the transaction, but only a supplying of an essential element which had been omitted and without such supplying the transaction by which the insurance was attempted to be effected would be an absurdity and a nullity.</p> <p>3. Insurance — Application for Insurance.- — Where the company or association issued a certificate in consideration of dues paid, to one becoming a ^member thereof, in which certificate it is recited in substance that the member is entitled to all of the benefits of the association provided for in the constitution and by-laws, without stating anywhere the amount of such benefits, it is competent for the member in a suit on the certificate to show by the constitution and by-laws the amount of the benefits to which he is entitled under them, although no copy of the constitution or by-laws is attached to the certificate.</p>

<p>Vendor and Purchaser — Options and' Exercise Thereof — Assignment. — An option to purchase land at a fixed price for a definite time, not having been exercised 'within said time is without force or effect thereafter; and an assignment thereof made thereafter conveys no right to the assignee.</p> <p>Vendor and Purchaser — Options and Exercise Thereof — Revocation — A contract of agency for the sale of land not coupled with an interest and containing no stipulation as to time, is revocable at any time, and is revoked by an option given by the principal to a third party.</p> <p>Vendor and Purchaser — Options and Exercise Thereof — Specific Performance. — If an option to purchase land is extended by agreement beyond the definite time fixed therein for its expiration to permit the removal of a cloud upon the title to the land involved, and the optionee fails to pay for the land and consúmate the trade when requested to do so after the cloud is removed, he cannot thereafter enforce a specific performance.</p>

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

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

<p>Landlord and Tenant — Privilege of Extending Term — Holding Over —Effect.—Under a lease at a fixed rental for one year “with option at same rate for five years,” a holding over -by a tenant after the expiration of the first year constitutes an election to take for the extended term and protects him against ouster by the landlord.</p>

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

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

<p>1. Railroads — Trespasser Upon Railroad Bridge. — One who has no business with the railroad, which requires him to do so-, and is not an employee of the railroad company, hut who, for his own convenience or pleasure, goes upon and travels upon a railroad bridge is a trespasser, and the rules of law, which apply to a trespasser, apply to him.</p> <p>2. Railroads — Trespasser Upon Railroad Bridge. — The ones operating a railroad train not being required to anticipate the presence of any one upon a railroad bridge, are not required to keep any lookout for him nor give any signals of the approach of the train for his benefit, and the: only duty which they owe him is the humane duty of exercising ordinary care to avert injury to him after his presence upon the bridge has been discovered by them.</p> <p>3. Railroads — Use of Bridge as Footway — Acquiescence—Trespassers. ■ — Mere acquiescence by the railroad company in the use of its bridge by persons who use it as a footway, without the consent and against the wish of the railroad company, can not be construed into permission to use the bridge in that way, and does not change the status of one who makes such use of the bridge from a trespasser to a licensee.</p>

<p>1. Divorce — Alimony—Court Awarding Has Control of Order Allowing. — An order of the court awarding alimony is not final hut remains under the control of the court and may be set aside or . modified at its discretion.</p> <p>2. Divorce — Alimony—Separate Action May Be Brought for.- — An independent action may be brought to recover alimony.</p> <p>3. Appeal and Error — Jurisdiction—Alimony.—Where the circuit court enters an order requiring the husband to pay the wife $4 a week alimony, the order can not be appealed from as no one of the installments is as much as two hundred dollars — the amount necessary to give this court jurisdiction.</p> <p>4. Appeal and Error — Jurisdiction—Alimony.—Where the amount of alimony awarded is a lump sum of two hundred dollars or more, or where the first installment to be paid amounts to this much, this court will have jurisdiction of the matter on appeal. But before the husband can appeal to this court in a case involving an allowance less than the jurisdiction of this court, he must have paid, as shown by the orders of the lower court, an amount sufficient to give this court jurisdiction, and the burden is on him to show that the court has jurisdiction to review the ruling appealed from.</p> <p>5. Appeal and Error — Jurisdiction—Alimony.—There is no reason why a party who' is adjudged to pay alimony should have any greater right to an appeal before he has paid the requisite amount to give jurisdiction than any other person who pays, by order of court, a sum less than the jurisdictional amount.</p>

<p>1. Insurance — Accident Insurance — Continuity of Disability. — The fact that the insured under an accident policy, who was injured by an accident from which blood poisoning developed in from five to eight days so as to totally disable him, was at his place of business and imperfectly performing some of his duties while the infection was developing, does not destroy the immediacy or break the continuity of his disability.</p> <p>2. Insurance — Accident Insurance — Continuity of Disability. — Under an accident policy providing indemnity if the injuries shall immediately, continuously and wholly disable and prevent the assured from performing any and every kind of duty pertaining to his occupation, the conditions of liability are met where the disabilities prevent him continuously from doing all the substantial acts required of him in his business.</p> <p>3. Insurance — Accident Insurance — Continuity of Disability. — The evidence in this case for the beneficiary showing that the assured was at his place of business practically every day from one to six hours a day, for a period of more than three months after the accident, performing at times substantially every duty pertaining to his profession, held not to be sufficient to warrant a submission to the jury of the question whether or not he was wholly and continuously disabled.</p>

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

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

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

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

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

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

<p>1.- Deeds — Restraint Upon Alienation. — It is permissible in this State for a grantor or testator to impose a restraint upon alienation by way of condition subsequent, but this may not be for a longer time than the life of some person other than the vendee or de-visee, and if the restraint is longer than this, or for the life of • the vendee or devisee1, it is unreasonable and void.</p> <p>2. Deeds — Forfeiture.—In the absence of a limitation over on condition brohen, the right to proceed for forfeiture is in the grantor or his heirs and this right must be exercised during the time through which the prohibitive act is imposed by the condition, and if this right is not exercised by such person or persons within such time, the deed made in violation of the condition becomes absolute, as such deeds are voidable and not void.</p> <p>3. Deeds — Insane Persons. — A deed executed by one who is non compos mentis at the time'is valid as to a subsequent bona fide purchaser for a valuable consideration, provided at the time of its execution the grantor had not been adjudged to be a person of unsound mind.</p> <p>4.. Deeds — Evidence.—Testimony examined and found insufficient to show that the grantor was at the time of the execution of the deed in this case so mentally unsound as to render him incapable in law to execute it.</p>

<p>1. Wills — Devise to Daughter and Her Children — Construction.—Under a devise by a father to his daughter and her children, the daughter takes a like estate with remainder to her children born and to be born.</p> <p>2. Wills — Estate Devised — Dying Without Issue. — Under a will by which the testator devised certain property to his son and his children and other property to his daughter . and her children, with a limitation over to the survivor if either died without children, and with a further limitation over to his widow and his nieces and nephews if both devisees died without children, dying without children means the death during the lifetime .of the testator's widow, and the children of. he’r daughter, who survived the testator’s widow, take an indefeasible fee in remainder, though their estate is subject to be diminished by the: birth of other children.</p> <p>3. Wills — Exempting Property Devised Prom Debts, of Devisee— Validity of Provision. — A provision in a will to the effect that the devised property will not be-subject to the debts of the devisee is contrary to public policy and void.</p>