Volume 169 — Kentucky Reports

<p>1. Master and Servant — Servant Acting Outside Scope of His Authority — Chauffeurs.—A chauffeur, having taken the owner’s automobile out of the garage for his own purposes at a time and to a place out of all proportion to what was reasonably necessary for a particular required service for the owner, but which he intended ultimately to perform, held, under the circumstances disclosed by the evidence in this case, to have been engaged in his own private affair when an accident occurred, and not in the owner’s service so as to render the owner liable for the chauffeur’s negligence..</p> <p>2. Ma-ster and Servant — Distinguishing Authority. — This case distinguished from cases involving a “deviation” from, or an “abandonment” of the service of the master by a servant.</p>

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

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

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

<p>1. Schools and School Districts — Selection of Site for School House. —Under subsection 11 of section 4426a .of the Kentucky Statutes, the county board of education has the right to select sites for schoolhouses; and, after it has selected a site, it may rescind its action and select a different site.</p> <p>2. Schools and School Districts — Selection of Site for School House. — The action of a county board of education in selecting a site for a schoolhouse under subsection 11 of section 4426a of the Kentucky Statutes, will not be disturbed by the courts unless it , is made to appear that the board has, in the selection of the site, abused a sound discretion.</p>

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

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

<p>1. Municipal Corporations — Reconstruction of Street. — Where, under section 3098 of the Kentucky Statutes, a -city of the- second class advertises for bids for the reconstruction of a street, specifying the use of some one of numerous kinds of material in the work, and only one bid is received-, the acceptance of the single bid does not violate the provisions of the statute for competitive bidding in the absence of fraud, collusion and un- • fairness.</p> <p>2'. Municipal Corporations — Street Construction — Correction of Contract. — Under section 3100 the general council of a city of the second class may correct the mutual mistake of the city and the contractor in failing to have the executed contract and bond filed within the thirty days required by law, by filing same when the mistake is discovered and no one is injured thereby!</p> <p>3. Municipal Corporations — Reconstruction of Street — Acceptance of Contract. — After the proper city authorities have regularly and fairly contracted for the reconstruction of a street, and accepted the work as done, the acceptance by the city council is conclusive of the manner of doing same.</p>

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

<p>1. Officers — Increase or Reduction of Compensation — Working Prisoners Upon Public Roads. — Chapter 89 of the Acts of 1914, providing for the working of prisoners upon the public work or roads of the county, city or town, thereby withdrawing the- prisoners from the custody of the jailer for the purpose of working them upon the public roads, and depriving him of his fees for their support and maintenance, does not violate section 161 of the constitution, which provides that the compensation of a city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office.</p> <p>2. Officers — Increase or Reduction of Compensation — Pees of Jailer. —Section 161 of" the constitution, which provides that the compensation of a city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office, contemplates an office with a fixed salary,.or fixed fees; it never contemplated that the legislature might not indirectly affect a jailer’s fees by changing the method of -punishing criminals.</p> <p>3. Officers — Increase or Reduction of Compensation — Fees of Jailer. — ■ Changing the custody of a prisoner hy withdrawing him. from the custody of the jailer does not, within the meaning of section' 161 of the constitution, amount to a change in the compensation of the jailer, whose fees are fixed hy law, and remain unchanged.</p>

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

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

<p>1. Evidence — Competency.—Evidence that one claimed to be the agent of a corporation is not competent against the corporation.</p> <p>2. Process — Service Upon Corporation. — Return on a summons showing that it was served on a corporation by delivery “to Baker, its agent,” is not a good service under the provisions of subsection 33 of section 732 of the Civil Code.</p> <p>3. Damages — Measure of Damages — -Failure to Deliver Automobile.— In an action for damages for the failure to deliver an automobile of a certain Mnd and description contracted for, the whole measure of damage is the difference between the value of the car delivered and the value of the car -contracted'for; expenditures on the car by the plaintiff tending to increase the value of the car which he has retained and tending to lessen the difference in the value of the car as contracted for and the car as delivered, is not a proper element of damage. To allow the recovery of such expenditure would be in effect to- assess double damage.</p> <p>4. Contracts — Representations Merged in Writing. — In the absence of a showing of fraud or mistake all representations made prior to the making of a written contract between the parties will be deemed to have been merged in the writing.</p>

<p>Municipal Corporations — Defect in Sidewalk — Question for Jury.— If the defect in a sidewalk is such that all reasonable men will agree, that in spite of the defect the sidewalk is in a reasonably safe condition for travel, there is no evidence of negligence to submit to the jury; but if the defect is such that reasonable men may well differ as to whether or not the sidewalk is reasonably safe for travel, then the question is for the jury.</p>

<p>1. Appeal and Error — Subsequent Appeal — Questions Concluded.— Where on a former appeal of the case this court approved the ruling of the trial court in refusing a peremptory instruction directing a verdict in defendant’s behalf; approved the instructions given, except one, instead of which it indicated the correct form in which it should be given; and held that the verdict was not flagrantly against the evidence; and on the last trial the evidence was substantially the same and the instructions approved were given, this court on a subsequent appeal will not again consider those questions, as the decision of the Court of Appeals on appeal is the law of the case on a subsequent trial and appeal.</p> <p>2. Appeal and Error — Verdict—When Not Flagrantly Against Evidence. — The fact that the jury accepted plaintiff’s version of how he received his injuries, instead of that of two witnesses of the defendant railroad company, furnishes no reason for setting aside the verdict on the ground that is was flagrantly against the evidence.</p> <p>3. Damages — When Not Excessive — Permanent Injuries. — Where plaintiff’s heel was crushed off; he was confined six months in a hospital; for six years he has suffered pain and was forced to dress his foot every day; his leg is shriveled and shortened and foot subject to abscesses and he will walk on the ball of his foot all his life, the effect of his injury being practically the same as amputation of the foot; and where at the time of his injury he was 24 years old, in excellent health, earning $90 a month, with a life expectancy of 32.70 years, and has as a consequence of his injury earned nothing of consequence the six years since, and his ability to earn money is permanently impaired; Held, that a verdict of $12,500.00 is not so excessive as to authorize the court to set it aside.</p>

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

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

<p>1. Negligence — Contributory Negligence. — A person who drives ' through a door or under a shed right before his eyes, must take notice of the size thereof, and not place himself in a position where there is liability of his being struck.</p> <p>2, Negligence — Contributory Negligence — Question for Jury. — Contributory negligence is usually a question for the jury, but where from tbe evidence there is no room for honest difference of opinion among intelligent men, it is a question for the court, and a peremptory instruction is proper.</p>

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

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

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

<p>1. Taxation — Levy and Collection of Taxes — Notice.—While the power to levy and collect taxes is an incident to sovereignty, yet to authorize by statute the sale of the real estate of a citizen for taxes on the land, due by the former owner, without notice to the real owner, is beyond the power of the legislature.</p> <p>2. Taxation — Lien and Priority — Notice.—The lien of the State is not lost by the conveyance to another by the former owner; but if a sale is attempted to enforce the lien, the purchaser is entitled to notice.</p> <p>3. Husband and Wife — Husband Cannot Convert Adverse Holding.— A husband while living with his wife upon her land and in charge thereof, cannot by any acts of his convert his holding to one adverse to her title.</p> <p>4. Husband and Wife — Adverse Holding. — The wife in such case, being only a life tenant, her holding cannot be adverse to the remainderman, and as the husband cannot hold adverse to the wife, neither could his holding be adverse to the remainderman.</p>

<p>1. Elections — Schools and School, Districts — Election of Trustees — - Officers of Election — Who May Hold Election — Validity of Election. — Where, .in an election for school trustee, separate 'elections are held by separate officers, each claiming to be elected, and none of the voters for the contending candidates participated in the election held by the officers representing the other candidate, the validity of the election turns on which set of officers was legally elected, and if each set received an equal number of votes neither set was authorized to hold the election and neither election was valid. ,</p> <p>2. Elections — Schools and School Districts — Election of Trustees— Contest — Evidence.—In a contested school trustee election, where separate elections were held by separate officers representing each of the candidates, evidence considered and held that each set of officers received an equal number of votes, and as neither set of officers was authorized to hold the election no valid election was held.</p> <p>3. Schools and School Districts — -Trustee—Invalid Election — Vacancy — How Filled. — Where no valid election for school trustee is held, a vacancy occurs, which may be filled by the county board of education.</p> <p>4. Schools and School Districts — School Trustee — -Recognition by ‘C-ounty Superintendent — Validity of Acts.- — -The acts of a school trustee recognized by the county superintendent pending a controversy over the office are valid.</p>

<p>Appeal and Error — Judgment Must be Entered Before Appeal can be Prosecuted From It. — Although a judgment was written out by the judge, and signed by him, and the paper on which it was written left with the papers in the case, an appeal could not be prosecuted from the judgment until it was entered on the order book of the court and signed by the judge.</p>

<p>1. Evidence — Railroads—Personal Injuries. — In an action for damages for personal injuries by an infant against a street railroad, based on the negligence of the motorman in inviting plaintiff to get on a moving car, evidence of other invitations by the motorman on former occasions is not admissible.</p> <p>2. Trial — Jury-—View of Car Causing Accident — Authority to Permit. —The trial court has authority to permit a jury in a personal injury case to examine the car causing the accident at a place other than the place of injury, if it be shown that there has .been no substantial change in the condition of the car since the accident.</p> <p>3. Trial — Instructions—Negligence—Ordinary Care — Technical Error —When Not Prejudicial. — In an action by an infant for damages for personal injuries, an instruction defining ordinary care as “such care as persons of ordinary prudence usually exercise under the same or similar circumstances to that in this -case,” though technically incorrect, is not prejudicial, where the instruction on contributory negligence contains the following: “ » * *, and in considering the contributory negligence of the plaintiff Hardin Ba-sham the jury should take into consideration his age, intelligence and experience and knowledge'of the car at the time he was injured,” and the real issue in the case was whether the motorman did or did not invite plaintiff to get on the moving car.</p>

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

<p>1. Ejectment — Evidence—Court’s Findings Sustained. — In an action in ejectment, evidence examined and held to- sustain findings and judgment of the trial court.</p> <p>2. Judgment — Matters Concluded By — Title to Land. — Where, in an action brought in the same court against the present plaintiff and his brother by the vendor of the present defendant, involving the title to the same land now in controversy, the judgment established the line as now claimed by the plaintiff and as fixed by the court in this case; defendants, claiming title under their vendor, can show no better right thereto than was shown by him in the former action, hence, as the judgment in that action would .bar any recovery of the land by him, it will bar such recovery by them.</p> <p>3. Ejectment — Judgment—Costs.-—Where the plaintiff in ejectment recovers any part of the land sued for by him, the judgment should award him all costs against the defendants.</p>

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

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

<p>1. Criminal Law — Continuance—Affidavit for — Diligence.—An affidavit for a continuance which fails to disclose that the applicant or his attorneys made any effort whatever in the six days which elapsed between the setting of the case for trial and the trial thereof, to procure the attendance of the absent witnesses, does not show diligence.</p> <p>2. Criminal Law — Continuance—Witnesses—Attendance.—Where the county in which the trial is had and the county in which the absent witnesses reside are within sixty miles of each other and directly connected by railroad, six days is sufficient time in which to procure their attendance.</p> <p>3. Criminal Law — Anti-Sweating Act. — The Anti-Sweating Act was not intended to prevent the accused from making a voluntary statement with reference to the crime with which he is charged, and such evidence is competent when the statements are shown to have been made by him to officers without''threats, intimidation or holding out to him of any hope of reward or immunity.</p> <p>4. Criminal Law — -Evidence—Statement of Accused to Officers.— Even if the evidence of his statements given by the officers had been incompetent it would not be prejudicial in this case because the defendant in his own evidence substantially admits the facts to be as contained in the statements made by him to the officers.</p> <p>5. Criminal Law — Argument of Counsel. — The statement made by an attorney in argument of a case where the -defendant is charged with rape that -he was a negro and had thick lips, a blunt nose and receding forehead only called attention to that which the jury already knew; and the denunciation of the defendant as a “beast” was a mere figure of speech and could have .been treated by the jury only as a reference to the defendant’s infamous conduct shown by his own evidence.</p> <p>6. ‘Criminal Law — Argument of Counsel. — While this court will not approve the use of extravagant and abusive language in argument, in the light of the evidence in this ease the language used by the attorney could not have been misunderstood by the jury, and could not have inflamed their minds against him any more than his own admissions on the stand.</p> <p>7. Criminal Law — Appeal and Error — Bill of Exceptions — Bystanders. —Where the bill of exceptions fails to show the conduct of bystanders during the trial, complained of by appellant, such alleged error cannot be considered by this court.</p>

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

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

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

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

<p>Petition for Writ of Prohibition.</p>

<p>Petition for Writ of Prohibition.</p>

<p>1. Divorce — Restoration of Property — Insurance Policies. — Subject to the right of reimbursement for such premiums with interest as tjie wife may have paid out of her own property or earnings, a divorce divests the wife of all interest in a policy of insurance procured by the husband and made payable to her.</p> <p>2. Divorce — Restoration of Property — Insurance Policies — Premiums Paid by Wife — Evidence.—In a contest between a wife and her divorced husband’s estate over the proceeds of a policy of insurance, evidence considered and held sufficient to show that the wife paid four premiums, for which, together with interest, she was entitled to reimbursement.</p>

<p>1. Pleading — When Insufficient on Demurrer- — Adverse Possession.— A pleading asserting possessory title to a tract of land, which title is wholly dependent upon the adverse holding of the plaintiff’s grantors, and which also refers to certain deeds of the plaintiff’s grantors to adjoining tracts of land, the calls and recitals in which negative the idea that the grantors held the disputed tract adversely, and which recognize the disputed tract as an alley of a city, is insufficient on demurrer.</p> <p>2. Pleading — Variance.—Where the allegations of a pleading and the recitals in an exhibit filed therewith are at variance, the latter must control.</p>

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

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

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

<p>1. Master and Servant — Assumption of Risk — Safe Place to Work.— When the servant is perfectly familiar with the surroundings and conditions of the place furnished him to do his work, and without protest he continues to perform the work with the place furnished him unchanged, he assumes the risk of accidents growing out of the dangerous condition.</p> <p>2. Master and Servant — Assumption of Risk. — In such cases if the servant has made complaint to the master who promised to render the place safe, he may continue the work for a reasonable time without assuming the risk unless such dangerous condition is so patent and plain that an ordinarily prudent man would appreciate the danger incident to working there.</p> <p>3. Master and Servant — When Master Not Liable. — If there is a safe and also an unsafe way to do the work and the servant voluntarily chooses the unsafe way and is thereby injured, he cannot hold the master liable foi his injuries.</p> <p>4. Master and Servant — When Master Not Liable for Servant’s Injuries. — A servant was engaged in unloading blocks of ice from an elevator on to a platform. The platform was unbanistered and was about fifteen feet above the floor below, one side of it being next to a wall of the storage room for the ice; through this wall was an opening to permit the ice being placed in a chute to be conveyed to cars and it was for this ¡purpose that the ice was being put upon the platform. To have unloaded the ice on the side of the elevator and next to the wall of the storage room near this opening would have been safe, but to have unloaded it on the platform next to its outer edge where the servant did actually unload it, was unsafe, and when the icehooks pulled loose from the block of ice, he fell to the floor below sustaining his injuries. Held, that his employer was not liable.</p>

<p>1. Municipal Corporations — Powers of. — Municipal corporations may-exercise, (1) those powers which are expressly granted; and, (2) those necessarily implied, or incident to those expressly granted, and which are indispensable to a proper exercise of the objects of the corporation.</p> <p>2. Municipal Corporations — Ordinances—Fire Districts. — Ordinances creating fire districts in municipalities are upheld as being within the general police power.</p> <p>3. Municipal Corporations — Creation of Fire Districts. — Under subsection 7 of section 3637 of the Kentucky Statutes, giving cities of the fifth class power to do and perform any and all acts necessary and proper to carry out the provisions of their charter, and to exact and enforce within the limits of such cities, all local, police, sanitary and other regulations as do not conflict with general laws, such cities have the power to create fire districts.</p> <p>4. Municipal Corporations — Ordinances—Validity.—Municipal ordinances placing restrictions upon lawful conduct, or the lawful use of property, must, in order to be valid, specify the rules and conditions to be observed in, such conduct of business, and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions, and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply.</p> <p>5. Municipal Corporations — Buildings—Ordinances.—So much of the ordinance adopted by the city of Monticello in 1904' as prohibits any citizen from erecting any building within the city limits without the permission of its board of trustees, is invaild.</p> <p>6. Municipal Corporations — Ordinances—Pleading.—When an ordinance is assailed upon the ground that it is illegal, unfair, unreasonable, or oppressive, the .person complaining will ordinarily he required to point out specifically in what respect the ordinance is unreasonable, unequal or oppressive, as applied to the facts of his case.</p>

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

<p>1. Appeal and Error — Jurisdiction—Amount in Controversy — Granting of Appeal — Authority of Circuit Courts. — A circuit court has no authority .to grant an appeal from a money judgment, where the amount in controversy is less than $500.00, exclusive of interest and costs.</p> <p>2. Appeal and Error — Appeal—Gross Appeal — Dismissal.—Where an appeal is granted below from a money judgment less than $500.00 exclusive of interest and costs, the appeal will be dismissed, and where the cross appeal involves less than the jurisdictional amount it will follow the original appeal.</p>

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

<p>Municipal Corporations — Taxing Power — Constitutional Limitation. —Section 157, Constitution, limiting the tax rate of cities of less than ten thousand population to seventy-five cents on the hundred dollars; forbidding such cities to incur, in any manner, or.for any purpose, in any year, an indebtedness in excess of the income and revenue provided for such year, without the assent of two-thirds of the voters of such city, voting at an election held for that purpose, and declaring void any indebtedness contracted in violation of the section, applies only to indebtedness which arises from contract and not ,to liabilities imposed by law for tort. Hence the fact that the city has for several years reached the limit of its indebtedness and tax rate under the section is no ground of defense in an action against the city authorities to compel the levying and collecting of a tax sufficient to pay a judgment on a verdict for damages sustained by reason of the unsafe condition of á street of the city.</p>

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

<p>1. Taxation — Real Property — Mode of Assessment. — Real estate should be listed for taxation against the owner of the first freehold estate therein.</p> <p>2. Taxation — Real Property — Life Tenant. — It is the duty of the life tenant to list and pay taxes on the land.</p> <p>5. Deeds — Sale of Land for Taxes — Title.—A deed from the sheriff to a purchaser for land sold for taxes vests the purchaser with the fee simple title to the land, if all necessary steps have been taken in making the sale, and when a sheriff, by his deed, certifies that ho has done all the things which are required by law, in selling the land for taxes, it will be> presumed that he has done so, but this presumption may be overcome by the evidence.</p> <p>4. Taxation — Sale of Land for Taxes. — A valid assessment is a necessary prerequisite to a valid sale of land for taxes, and a tax deed, does not pass the title of any person, other than that of the person in whose name the assessment is made.</p> <p>6. Adverse Possession — Title to be Traced to Common Vendor. — In. a controversy over the ownership of land, where both parties claim under the same remote vendor, it is not necessary for either of the parties to go further back for title than to the common vendor.</p> <p>6. Deeds — How Contents May be Proven. — The only way to prove ithe existence of a deed and its contents', where the deed is in existence and within the power of the one offering the evidence, is to produce the deed.</p> <p>7. Deeds — Champerty and Maintenance. — The statute declaring champertous and void a deed which is made to lands in the adverse possession of another does not apply to lands sold at judicial sales, and deeds made in consequence of such sales by a commissioner of the court.</p> <p>8. Champerty and Maintenance — Possession Necessary to Constitute Sale Champertous. — The possession necessary to make a sale and conveyance of lands champertous under the statute is an adverse possession and not a mere constructive possession by reason of a claim of ownership of it under a deed.</p>

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

<p>1. Torts — Negligence.—In an action for tort, there can be no liability without negligence.</p> <p>2. Negligence — Elements Necessary to Recovery. — The three elements essential to a plaintiff’s recovery in an action for negligence, are, (1) facts showing the existence of a duty owed by the defendant to the plaintiff; (2) the violation of that duty by the defendant; and, (3) damages to the plaintiff conforming to the legal standard. When these elements are brought together, they unitedly constitute actionable negligence; the absence of any one of the three elements renders the petition bad, or the evidence insufficient.</p> <p>3. Negligence — Duty of Owner of Premises Who Induces Others to Come Upon. — The owner or occupant of premises who induces others to come upon them by invitation, express or implied, owes ■ to them the duty of using reasonable or ordinary care to keep the premises in a 'safe and suitable condition, so that they will not be unnecessarily or unreasonably exposed to danger.</p> <p>4. Negligence — Ordinarily, a defendant is not liable for negligence where no injurious con sequences could reasonably have been contemplated as the result of the act or omission complained of; he is liable only where such injuries might have been anticipated, or foreseen.</p> <p>5. Negligence — Proximate Cause of Injury. — In order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was a natural and probable consequence of the negligence, or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.</p> <p>6. Negligence — Damages—When Railroad Not Liable in Damages.— Where the agent of a railroad company and a farmer through whose land the railroad track extended, went upon the track together for the purpose of effecting a sale of an additional strip of ground for another track, and the farmer stumped his too against a sipike driven in a cross tie in the center of the track, and fell, breaking his arm, the company is not liable in damages.</p>

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

<p>1. Insurance — Foreign Insurance Company — Retaliatory Statute— ■When Enforcible. — To render section 637 of the Kentucky Statutes, imposing on foreign insurance companies the same license tax imposed by the laws of their domicile on Kentucky insurance companies doing business in the states of their domicile, applicable to a foreign insurance company doing business in this state, it is not necessary that a Kentucky insurance company should be actually engaged in doing business in the state of such company’s domicile, but the statute is applicable whenever there is a Kentucky insurance company in existence which the statute of such foreign state would apply, should it attempt to enter and do business in that state.</p> <p>2. Pleading — Taxes—Foreign Insurance Company — Retaliatory Statute — Action to Enjoin Taxes Under — Petition—Sufficiency.—In an action by a foreign insurance company to enjoin the collection of the same taxes imposed by the laws of its domicile on foreign insurance companies, a petition which alleges that there is no Kentucky insurance company doing business in the state of its domicile, but which fails to allege that there is no Kentucky insurance company organized and in existence to which the statute of such foreign state would apply, should it attempt to enter and do business in that state, is bad on demurrer.</p>

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

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

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

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

<p>1. Railroads — Trespassers.—An employe of a distillery company who uses a switch track in the yard of the company as a passageway, which passageway is habitually and constantly used by the employes of the distillery in going from one part of its plant to another, is not a trespasser on the switch track which is operated by a railroad company, but is a licensee.</p> <p>2. Railroads — Contributory Negligence. — Such employe who emerges from a door of one of the distillery buildings; only a few feet from the railroad track and looks each way to see if a train is coming, but who on account of a curve in the track which comes around the comer of the building near the door from which he has emerged, can see the track only á short distance, and has no notice of the presence of the train and steps upon the track, is not guilty of contributory negligence as a matter of law, and is entitled to have the question whether he was so- guilty or not submitted to the jury.</p> <p>3. Railroads — Lookout Duty. — The fact that the railroad company only used this switch generally once a day and then between the hours of eleven and one in the day time, and that the distillery management had given orders that the door entering its main building near this passageway should be closed while trains were switching does not relieve the railroad company of the duty of maintaining a lookout when it is backing a train around this curve and across this passageway.</p> <p>4. Railroads — Lookout Duty. — The lookout duty contemplated by the law is one that will be effective; and it was insufficient lookout for a brakeman to be on the railroad car as the train backed at such a place that he could not see the crossing, or that the engineer and fireman in the engine one hundred and seventy-five feet away around a curve were attempting to keep such lookout.</p> <p>5. Railroads — Lookout Duty. — The fact th.at the distillery company maintained electric wires running over the switch more than five feet above the top of a freight car, and that there were certain other obstructions four or five feet above the top of a freight car, does not excuse the absence of a lookout, as a trainman might have with reasonable safety seated himself on the top of the freight car without being endangered by these obstructions. But in this case the lookout was not required by the instructions of the court to be on the oar, but only in such position that he might discover the presence of persons on the track.</p> <p>6. Railroads — Trespassers'—Lookout 'Duty. — The court properly declined to instruct the jury that if they believed the plaintiff emerged from the door onto the railroad track in close proximity to the approaching train at a time when the operators in charge thereof did not know of and could not have known of his presence by the exercise of ordinary care in time to have stopped the train and prevented the accident that they must find for the defendant. That instruction ignored entirely the lookout duty owed by the defendant and in effect assumed that the plaintiff was a trespasser and the trainmen owed him no duty until they discovered his peril.</p> <p>7. Appeal and Error — When Yerdict Not Excessive. — A verdict for $15,000.00 is not excessive in favor of a laborer thirty-six years of age and earning $1.50 a day, who had his right leg cut off and his left foot and ankle crushed, who remained in the hospital seven weeks, who has earned nothing since the accident and whose earning capacity has probably been permanently destroyed, who is a hopeless cripple for life and has suffered intensely and will continue to do so as long as he lives.</p>

<p>1. Appeal and Error — Waiver of Right to Appeal. — An appellant waives his right to an appeal, if after the rendition of the judgment which he seeks to correct by appeal, he treats it as valid and reaps benefits from and relies on it as valid before the hearing on appeal.</p> <p>2. Appeal and Error — Dismissal.—The right to manifest in this court such facts on a motion to dismiss the appeal is given by section 757 of the Civil Code of Practice, and the mode of procedure in this court is pointed out in section 758, idem.</p> <p>3. Appeal and Error — Dismissed—Eviction.—Where in the circuit court appellant was evicted by judgment therein from which he prosecuted an appeal to this court, but afterwards and before the hearing of the appeal he successfully prosecuted a suit against his grantor for breach of warranty contained in the deed to the land from which he was evicted, his appeal will be dismissed upon motion made for that purpose accompanied with a proper showing of the facts.</p>

<p>1. Criminal Law — Plea of Former Jeopardy. — To constitute a plea of former jeopardy, the facts in the subsequent cases in which the plea is interposed must be the same as those in the case tried so as to constitute the punishable acts of the defendant one and the same in each case, and unless they are such as to constitute each charge one and the same offense, the plea will not he available.</p> <p>2-. Criminal Law — Plea of Former Jeopardy. — Where, in the same affray, the defendant shot and killed two persons with separate shots, the billing of one of them is not included in the killing of the other, the offenses not being identical, and the plea of former jeopardy will not be allowed upon a second trial on one of the indictments after a previous trial upon the other.</p>

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

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

<p>1. Railroads — Sales—Liability of Purchaser. — In, an action for damages sustained on account of a defective retaining wall of a crossing or approach thereto, it is not material whether the wall, crossing and approach were constructed by a former owner of the railroad, the receiver thereof, or the present owner, purchaser at a judicial sale, for the latter by acquiring the property and maintaining it in the manner adopted by its predecessor made itself responsible for whatever defects existed in its construction or resulted from its use and, in addition, assumed all of the duties with respect to the property imposed by law.</p> <p>2. Railroads — Construction and Maintenance — Restoring and Maintaining Highway at Crossing. — Under subsection 5, section 768, Kentucky Statutes, a railroad company upon crossing a highway with its track must restore the highway to its original condition as near as may be and construct and maintain such approaches as will make the crossing reasonably safe and convenient for the traveling public, and such duty cannot be delegated by the railroad company to road overseers or other officials of the county.</p> <p>3. Railroads — Construction and Maintenance — Restoring and Maintaining Highway. — Where a retaining wall, though several feet outside the right of way, is a support both for the railroad roadbed and approach to a crossing, the railroad comipany alone is charged with the duty of properly constructing and maintaining the wall in a condition to make the approach and crossing safe for travel.</p> <p>4. Railroads — Injuries From Construction or Maintenance — Evidence. ■ — In an action for damages caused by the alleged defective condition of a retaining wall of a railroad crossing and approach, resulting, as claimed, by the giving way of the wall and falling of' plaintiff’s automobile into a ditch; evidence examined and held sufficient on all issues of fact to require submission to the jury and authorize the verdict returned for the plaintiff.</p> <p>5. Appeal and Error — Damages—When Not Excessive. — In an action for damages sustained to the person and automobile of plaintiff, where it appears that the automobile was damaged to the extent' of $400.00 and where plaintiff was bruised about the head and body and sustained a wound three inches in length in his leg, by a bolt of the machine penetrating to the bone, which injuries caused him to be confined to his bed or room for three weeks and to go on crutches three weeks longer, and from which injuries he suffered great pain from the time of the accident to the time of the trial and still so suffers, and the wound will result in permanent partial• disability, this court will not say that $1,500.00 damages awarded for the injuries both to plaintiff’s person and automobile were grossly excessive.</p>

<p>1. Innkeepers — Taverns—Necessity for Tavern — Club House. — Before the necessity for the existence of a tavern at a given place, contemplated in the statute, can bei said to exist there must be some demand from the general .public as distinguished from a particular class of the people for the existence of such tavern; and where a country club has for several years had, a tavern license at a given place and during all of that time no single member of the public other than members of the club has applied for accommodations at the club house this is conclusive evidence of a lack of demand upon the part of the general public.</p> <p>2. Innkeepers — Taverns—Necessity for Tavern — Club House. — While the members of a country club are a part of the public, when they frequent their club house and patronize it it is not in their capacity as members of the general public, but because of their status as members of the club; and this evidences no demand from the general public for the existence of such tavern.</p> <p>3. Innkeepers — Taverns—Wkat Constitutes Tavern. — A tavern is a public place where accommodations are furnished to the traveling public for compensation; the keeper thereof is supposed to hold himself out in some form of advertisement to the public as the keeper of a public place; it is a place operated by the keeper for profit and where, within reasonable limitations, the public may demand accommodations.</p> <p>4. Innkeepers — Clubs—What is Not Tavern. — A purely social organization not operated for profit and the privileges of which are extended only to its members and their guests and which does not cater to the public or in any way invite its patronage is not a tavern within the meaning of our statute, and persons operating such a place do not in good faith intend to operate a tavern.</p> <p>5. Intoxicating Liquors — Tavern License — Corporation May be Granted. — A corporation may be granted a tavern license in this state and its officials may take the required statutory oath.</p>

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

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

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

<p>'Counties — Indebtedness for Roads — Cneation. of — Section 157a Constitution — Elections.—Under section 157a of the constitution, an indebtedness for public road purposes may be authorized by a majority .of the voters of a county who participate in an election upon that question.</p>

<p>1. Counties — Indebtedness for Roads — Creation of — Section 157a Constitution — Elections.—.Under section 157a .of the constitution, an indebtedness for (public road purposes, may be authorized by a majority of the voters of a county who participate in an election upon that question.</p> <p>2. Counties — Levy .of Tax for Road Bonds — Section 4308 Kentucky Statutes — 157a Constitution. — Section 4308 of the Kentucky Statutes, which authorizes the fiscal court of a county to levy aj tax not exceeding thirty cents on each one hundred dollars of taxable property, to pay the interest and the principal of county road bonds, violates section 157a of the constitution, to the extent that it authorizes the levy of a tax exceeding twenty cents on each one hundred dollars of taxable property; it is a valid statute, however, to the .extent that it authorizes a levy for the purpose indicated, to an amount not exceeding twenty cents on each one hundred dollars of the taxable ¡property in the county.</p>

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

<p>Bills and Notes — Payment—Evidence.—Evidence examined on the issue as to whether two payments were made on a note and the verdict held to he flagrantly against the evidence. . ■</p>

<p>1. Appeal and Error — Supersedeas—Effect.—The effect of a supersedeas is to preserve the status in quo pending the appeal. It is not retroactive in effect. It does not undo what has. already been done. It destroys no rights acquired by the judgment. It merely suspends those rights.</p> <p>2. Appeal and Error — Supersedeas—Effect—Judgment Lien. — A judgment lien on stock for their keep is not discharged by a supersedeas but remains in full force pending the appeal.</p> <p>3. Subrogation. — A surety who has paid the debt of his principal is at once subrogated to all the rights, remedies, securities, liens and equities of the creditor for the purpose of obtaining his reimbursement from the principal debtor.</p> <p>Í. ’ Principal and. Surety — Release of Surety — Act of Creditor. — If the creditor, without the consent of the surety, does any act Which, in contemplation of the law, alters the surety’s- liability,- increases his risk, or deprives- him even for a moment o.f- the right to pay the debt and assume the position of creditor, or of his right to- seek indemnity, the surety is thereby discharged, áñd the fact that the surety may not have been actually injured is immaterial.</p> <p>• 5. Principal and Surety — Release—Act of Creditor. — Any agreement or active interference by an obligee, whereby the surety may be injured, releases him absolutely and it is not material whether the property so released was sufficient to discharge the whole debt or not.</p> <p>6. Principal and Surety — Appeal Bond — Act of Creditor — Release of Surety. — Where, in addition to a personal judgment, plaintiff is awarded a lien on certain stock for their keep and retains possession of the stock as the agent for the Commissioner of the court, and prior to the date of sale' ordered by the court an appeal bond is executed and the judgment is superseded, and pending the appeal plaintiff, without any order or direction from the Commissioner, ships the stock out of the State to the judgment debtor and thereby deprives the surety in the appeal- bond of the right to take plaintiff’s place and enforce the judgment lien, the surety is released.</p>

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

<p>1: : Principal and Agent — Burden of Proof. — The burden of proving an agency rests upon the one who asserts it, if it is denied.</p> <p>2. Principal and Agent — Declarations and Acts of Agent. — Neither an agency nor the scope of'it can be established by proof of the declarations of one claiming to be an agent.</p> <p>3. Principal and Agent — Evidence of Agency. — The agent is a competent witness to prove his agency, or the existence of facts from which an agency may be inferred.</p> <p>4. Principal and Agent — Evidence of Agency — Competency.—Any . evidence which is otherwise competent, which has a tendency , . to prove or disprove agency or the authority of an agent, is admissible, whether the evidence of the appointment be direct or indirect.</p>

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

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

<p>1. Appeal and Error — Judicial Sales — Validity.—An order confirming or refusing to confirm a report of sale is a final order and appealable, and until tbe lower court rules tbereon tbe validity of tbe sale is not before tbis court.</p> <p>2. Judgment — Setting Judgment Aside. — Errors that do not render a judgment void, but merely voidable, are not sufficient to support a motion to set tbe judgment aside after tbe term at which it was rendered.</p> <p>3. Process — Amending Return by Officer. — An officer may, in tbe sound discretion of the court, amend his return upon a summons after judgment, and where the record is silent as to whether a summons shown to have been issued was executed or returned proof may be heard to supply the record.</p> <p>4. Process — Officer’s Return Upon Summons — Verity.—The verity of an officer’s return on a summons cannot be questioned except upon allegation of fraud in the party benefited thereby or mistake on the part of the officer, in other than a direct proceeding against the officer or his sureties.</p>

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

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

<p>1. Bastards — Proceeding For Maintenance- — Venue.—Under Chapter X, of Kentucky Statutes, the venue of a proceeding against the father of a bastard child, to require him to contribute to the maintenance of the child, is in the county wherein the child was born, if it was born in the State of Kentucky, and no one other than the county court clerk of such county has authority to issue a warrant for the accused, under the provisions of said chapter.</p> <p>2. Courts- — Jurisdiction—Objection to — Waiver of Right to Object. —A litigant does not waive his right to object to a want of jurisdiction of a court of the subject matter of the action by his failure to specially demur on said account, or to plead such objection when the pleading of his adversary does not disclose the want of jurisdiction, by entering his appearance to the action or procuring a continuance of the case.</p> <p>3. Courts — Jurisdiction—Waiver.—Where a court has jurisdiction of the subject matter of the action, a litigant may, hy consent, waive the court’s want of jurisdiction of his person, but the want of jurisdiction of the subject of the action can not be waived by consent.</p>

<p>1. Criminal Law — Conspiracy—Accomplice.—The fact that one is charged in an indictment with being in a conspiracy to commit murder and that another pursuant to such conspiracy did commit murder does not of itself make him an accomplice; the facts must determine whether or not he is an accomplice, and if they develop such a state of case as would authorize his conviction either as principal or accessory before the fact, or as aider or abettor, then he is an accomplice, otherwise he is not.</p> <p>2. Criminal Law — Instructions.—The failure to define “malice” and “aforethought” in an instruction is not prejudicial error as against the defendant.</p> <p>3. Criminal Law — Accomplice—Instructions.—Where one of two of the eye witnesses to a killing was not an accomplice it was unnecessary to incorporate in an instruction the Idea that one accomplice cannot corroborate the evidence of another so as to bring about a conviction.</p> <p>4. Criminal Law — Instructions.—There being a total lack of evidence that there was any quarrel or altercation between defendant and decedent, or that defendant was concerned in a quarrel between decedent and another prior to the time defendant struck the blow which resulted in death, an instruction on manslaughter was properly withheld.</p>

<p>Master and Servant — Animals—Personal Injury — Contributory Negligence. — An employe who, without warning to the mule, stoops near his hind feet to pick up a tail-chain and at the same time strikes the mule with a whip, and thus invites and provokes the mule to kick, is guilty of contributory negligence and cannot recover of the master for a consequent injury.</p>

<p>1. Railroads — Injury to Person on Tracks — Duty to Keep' Lookout and Give Warning. — The rule requiring those in charge of a train to anticipate the presence of persons on the tracks and keep a lookout for them and give warning of the approach of the train cannot be extended to rural or sparsely settled communities, although the tracks at such places may be used by a large number of persons.</p> <p>2. Railroads — Injury to Persons on Tracks — Duty to Keop Lookout. • — -Evidence examined and held insufficient to show such use of defendant’s railroad tracks at the place of the accident as imposed upon it- the duty of anticipating the presence of persons thereon or of maintaining a lookout and giving warning of the movements of the train; hence there was no reason for submitting this question to the jury.</p> <p>. 3. Railroads — Injury to Person on Tracks — Duty to Trespassers. — - As the decedent was a trespasser at a place where the railroad company was not required to anticipate his presence on the track, its servants in charge of the train owed him no duty other than to use ordinary care to avoid injuring him after the discovery of his peril.</p> <p>4. Railroads — injury to Person on Tracks — Duty to Trespassers. — ■ That an accident happened within a hundred feet of a public crossing did not make the railroad company’s duty to decedent, a trespasser, any greater.</p> <p>5. Railroads — Injury to Person on Tracks — Evidence.—In an action for damages for tke death, of plaintiff’s decedent, evidence examined and held to show that his death was caused solely by his own negligence and not by any negligence attributable to the railroad company’s servants in charge of the train by which he was killed.</p>

<p>1. Municipal Corporations — Streets—Limitation—Notice of Adverse Possession. — Under section 2546 of the Kentucky Statutes, limitation does not begin to run against a city for the recovery of a street or public way until it has been notified in writing by the party in possession that he will attempt to hold it adversely to the right of the town or city.</p> <p>2. Municipal Corporations — Streets—Dedication—Acceptance — When Necessary. — The dedication of a street or public way in a city to public use will not for all purposes convert the place so dedicated into a street or public way or charge the city with its care. The mere act of dedication, or the use of dedicated territory by the general public, however long it may have continued, does not put upon the city the duty of acceptance or charge it with the care of the place.</p> <p>3. Municipal Corporations — Dedication of Street — Effect of — Acceptance Not Necessary. — Witten a town or city is laid off with streets set apart for public use, the city authorities are not required to take physical possession or control of each street or to improve it in order to save their right to reclaim it against any person who undertakes to hold it adversely. A city may delay manifesting this acceptance by control or improvement as long as it pleases. Nor is there any period fixed in which a street so dedicated must be taken possession of by the city or improved by it in order to prevent an abandonment.</p> <p>4. Municipal Corporations — Streets—Non-user Does Not Work Abandonment. — Neither the mere non-user by the public of a street dedicated to public use, no matter how long the non-user may exist, nor the failure on the part of the city authorities to take some affirmative action, however long such non-action may continue, will work an abandonment of it for the purposes for which it was dedicated. Nothing short of some affirmative act on the part of the city manifesting its purpose to abandon a street will work an abandonment.</p>

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

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

<p>1. Carriers — Carriage of Passengers. — It is the duty of a carrier to provide for its passengers a reasonably safe platform and approaches to its trains, and if it fails in this duty and by reason thereof a passenger is injured, it is liable in damages.</p> <p>2. Carriers — Carriage of Passengers. — Injury to Passenger — Proximate Cause — Peremptory Instruction. — In an action by a passenger to recover of the carrier for injuries alleged to have been caused by the failure of the carrier to provide a reasonably safe platform and approaches to its trains, the evidence shows that the carrier maintained a cinder fill and platform opposite to a wooden platform and store. Plaintiff, who was perfectly familiar with the physical conditions, walked along the cinder platform with his wife for the purpose of boarding one of defendant’s trains. After assisting his wife to board the train he says that he then turned around and “creeled” his foot in some way and rolled down the embankment. Held, that the “creeling” of his foot and not the narrowness nor unguarded nor unlighted condition of the cinder platform was the proximate cause of his injuries, and, having failed to show that the “creeling” of his foot was due to any negligence of the company, he is not entitled to recover.</p>

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

<p>1. Criminal Law — Warrant—Amendment.—It is not necessary in proceedings under misdemeanor charges where the court may make final disposition of them to charge the offense in a warrant with the technical accuracy or the same particularity as is required when the charge is preferred hy an indictment, and it is competent to permit such a warrant to be amended by the Commonwealth, after the defendant has been arrested thereunder, so as to state the charge with greater particularity but not so as to charge an entirely different offense; however, if the amendment should violate the rule, a new trial will not be granted therefor if the defendant has had reasonable time and opportunity to defend under the amendment after it had Ibeen filed and the trial was directed throughout to the charges contained in the amendment.</p> <p>2. Criminal Law — Warrant.—As it is not necessary to state the time of the commission of the offense other than it occurred before the issuing of the process, a warrant which charges an,- offense to have been committed on a certain day before the issuing of the warrant may be proven to have been committed on any day within the period of limitation provided for th© prosecution of that particular offense.</p> <p>.3. Intoxicating Liquors — Evidence—Competency.—Testimony introduced by the Commonwealth to the effect that numbers of people in a sober condition were seen going to the home of defendant and within a short time returning from the direction of his home in an intoxicated condition, is competent for the purpose of showing that the article sold by the defendant was intoxicating, it being his contention that it was nothing but grape juice and was a non-intoxicating drink.</p>

<p>1. Indictment and Information — Surplusage.-—The unnecessary use of language in an indictment not affecting the offense with which the defendant is charged nor entailing upon him any additional burden to establish his innocence, 'but rather increasing the facts to be established by the Commonwealth, ■ will be regarded as surplusage only and such language is not fatal to the indictment.</p> <p>.2 Intoxicating Liquors — Indictment—Surplusage.—Where, in an indictment for violating the local option law, it is charged that the defendant “did unlawfully sell and furnish” to the prosecuting wit-, nesg the intoxicant, the) words' “and furnish” will not be construed to charge an additional offense denounced by another section of the statute (2557b), but will be regarded as surplusage and the indictment to charge but the single offense of violating the local option law.</p> <p>3. Intoxicating Liquors — Instructions.—Upon trial under such an indictment an instruction which authorizes the jury if it should believe beyond a reasonable doubt that the defendant did sell ‘and furnish” the liquor to the prosecuting witness is not prejudicial to tlie rights of the defendant although it would have been had it used the words “or furnish” instead of the words “and furnish.”</p> <p>■4. Intoxicating Liquors — Evidence—Competency.—Testimony introduced by the Commonwealth to the effect that numbers of people in a sober condition were seen going to the home of defendant and within a short time returning from the direction of his home in an intoxicated condition, is competent for the purpose of showing that the article sold by the defendant was intoxicating, it being his contention that it was nothing but grape juice and was a nonintoxicating drink.</p>

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

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

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

<p>1. Sales — Passing of Title to Purchaser. — The agreement of a vendor of a horse to accept a mortgage on the horse as security for the purchase price is conclusive that the nlinds of the parties had met and the title to the horse had passed to the purchaser.</p> <p>2. Sales — Passing of Title to Purchaser. — The custody of the -horse being already in the purchaser, both title and possession passed with the closing of thé trade between him and the vendor.</p> <p>3. Larceny — Trick or Device — Obtaining Possession of Property.— One who by trick or artifice gets possession of personal property of another with the purpose of appropriating it toi his own use is guilty of larceny; but if at the time of obtaining possession he also obtains title to the. property, he is not . guilty of larceny, no matter what fraud or trickery he may have practiced in obtaining the title.</p>

<p>1. Quieting Title — Possession of Plaintiff. — It is essential in the maintenance of a suit to quiet title to real property under section 11 of the Kentucky Statutes that the plaintiff shall allege in his petition that he is the owner of the land and also in possession of it, without which the petition is fatally defective.</p> <p>2. Estoppel — Grounds of Estoppel — Persons Estopped. — To constitute an estoppel in pais, the party sought to he estopped must know the true facts, and that another should act under the belief of and the appearance of a different state of facts hy which action he has altered his position and which he would not have done . had he been notified hy the former of the true situation. These. , actions on the part of the person to he estopped may he hy words, acts, deeds or silence, when it is his duty to speak. If he ■ fails to do so he will afterwards be estopped to rely upon the facts to the detriment of the one who acted upon the false appearances.</p> <p>'3. Appeal and Error — Finding of Chancellor.- — The findings of the chancellor upon the facts will not he disturbed hy this court if the testimony is such as to leave the mind in doubt as to the . truth of the matter.</p>

<p>1. Carriers — Validity of Contract That Shipper Must Present Written Claim for Damages Within Prescribed Time. — A reasonable condition in a contract of carriage that the shipper must present in writing his claim for damages before he can maintain an action to recover damages, is valid.</p> <p>2. Carriers — Construction of Contract Requiring Shipper to Present Written Claim for Damages.. — Where a contract of carriage stipulated that no claim for damages should be allowed unless the shipper gave prompt notice of his claim to the nearest agent, “thereby enabling said carrier to make an inspection of the stock alleged to be damaged,” it only embraced claims for damages asserted by a shipper growing out of some physical injury sustained by his stock in the course of transportation or while in the custody or under the control of the carrier, and did not apply to a claim for damages arising out of the failure of the carrier to deliver the stock to the consignees named in the contract.</p> <p>3. Carriers. — Construction of Contract of Carriage. — In a contract for the shipment of cattle from Georgetown, Ky., the consignees named in the contract being a firm in Chicago, 111., and also a ' firm in Cincinnati, O., through which latter place the stock passed on their journey from Georgetown to Chicago, it was the duty of the carrier to deliver the stock to the Cincinnati firm.</p> <p>4. Carriers — Construction of Contract of Carriage — Ambiguity—Parol Evidence. — Where a contract of carriage is ambiguous, it should be construed most favorably to the shipper, and if the ambiguity is of such a nature as to require oral evidence to explain its meaning, such evidence may be introduced for this purpose.</p>

<p>1. Embezzlement — Element of Grime — Evidence.—The fact of incorporation is an essential element of the crime of embezzlement under section 1202 of the Kentucky Statutes, but said fact can be proven by oral testimony.</p> <p>2. Corporations — Judicial Notice. — Judicial notice will be taken of an act of the legislature incorporating a corporation.</p> <p>S. Trial — Peremptory Instruction. — A peremptory instruction will be denied where there is any evidence tending to show that the accused is guilty of the crime with which he is charged.</p> <p>4. Embezzlement — Restitution.—Neither restitution nor the offer to restore will avoid the crime of embezzlement.</p>

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

<p>1. Evidence — Hearsay—School Trustee Election — Statements of Voter. — The statements of a voter that she cannot read and write are mere hearsay, and are not admissible as substantive evidence in a contested school election.</p> <p>2. Elections — School Trustee — Qualification of Voter — Burden of Proof. — In a contested election for school trustee, he who- attacks the qualification of a voter has the burden of proof.</p> <p>3. Elections — School Trustee — Qualification of Voter — Evidence.—In a contested election for school trustee, evidence considered and held insufficient to show that two of the voters were disqualified.</p> <p>4. Elections — School Trustee — Sub-sections 5 and 11, section 1596a of the Kentucky Statutes. — Subsections 5 and 11, section 1596a of the Kentucky Statutes, giving to the election commissioners power, in case of a tie vote, to determine who is elected by casting lots, do not apply to school trustee elections.</p> <p>5. Schools and School Districts — Election—School Trustee — Tie Vote —Vacancy—Power to Fill — Sub-section 4, section 4426a of the Kentucky Statutes.- — A tie vote in a school trustee election results in a vacancy, which, under sub-section 4, section 4426a of the Kentucky Statutes, must be filled by appointment by the county board of education.</p>

<p>1. Reformation of Instruments — Proceedings and Relief. — The proof must be clear, convincing and satisfactory before a court is authorized to -reform a written instrument because of fraud or mistake.</p> <p>2. Reformation of Instruments — Proceedings and Relief. — As to whether the proof necessary to justify a court in reforming a written memorial of a contract is satisfactory, depends upon the -character of the testimony, the coherency of the whole case, the documents, and all the- circumstances proven.</p> <p>3. Reformation of Instruments — Parol Evidence. — If, by reason of fraud or mistake, the written memorial does not conform to the real contract of the parties, a court of equity -can reform the writing upon satisfactory parol evidence.</p> <p>4. Reformation of Instruments — Grounds for — Mistake.—The grounds of reformation of a written memorial of a contract may be a mutual mistake,- or a mistake upon one side and fraud or inequitable conduct upon the other.</p>

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

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

<p>1. Navigable Waters — Boundaries—Ohio River — Boundary Between Kentucky and Illinois — Jurisdiction of Kentucky. — The boundary of Kentucky extends to the low water mark on the northwest side of the channel of the Ohio River as it ran when Kentucky became a State, and its jurisdiction as it then existed continues unaffected by the action of the forces of nature upon the course of the river.</p> <p>2. Navigable Waters — Boundaries—-Boundary Between Kentucky and Illinois — Location of Island — Evidence.—In an action for damages for removing sand and gravel from an island, evidence considered and held to show that the island is located between Kentucky and the low water mark of the channel of the Ohio River on its northwest side as it existed when Kentucky became a State, and is, therefore, a part of Kentucky.</p> <p>S. Navigable Waters — Island—Accretion—Title.—An actual accretion to an island,in the Ohio River is a part of the island itself, and as between the owner thereof and the owner of the Illinois shore, to which the -added land is not an accretion, the title to such accretion is in the owner of the island, regardless of the direction in which the accretion runs.</p> <p>4. Appeal and Error — Punitive Damage Instruction — A punitive damage instruction will not be regarded as prejudicial error where the amount of the verdict is not sufficient to cover the actual damages shown.</p>

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

<p>1. Limitation of Actions — Trusts—Repudiation of by Trustee. — From the time a trustee openly repudiates a trust, with knowledge of the cestui que trust, the statute of limitations begins to run.</p> <p>2. Limitation of Actions — Trusts.—^By acknowledgment, or conduct necessarily implying acknowledgment, of a claim adverse to the terms of a will creating a, trust, as a result of which, the adverse claimant fails to enforce said claim, the trustee may stop the running of the statute of limitations.</p>

<p>Criminal Law — New Trial — -Instruction in Criminal Cases. — Alleged. errors in the instructions In criminal cases will not he considered on appeal unless relied on as ground for new trial.</p>

<p>1. Criminal Law — Selection of Jury — Summoning From Adjoining County. — Where there is no widespread prejudice shown, to- exist against the defendant in the county where the crime was committed and a qualified jury was easily obtained from a special venire of fifty men summoned from the county, the court was not authorized under section 194 of the Criminal Code of Practice, on motion of the defendant, to’ summon a jury from an adjoining county as it was not shown that it was impracticable to obtain an impartial jury from the county in the manner required by the section.</p> <p>2. Criminal Law — Witnesses.—It was prejudicial error for the court to permit a witness to testify to the jury as to the contents of a supposed letter which the Commonwealth claimed had been written by the defendant to the witness, when the witness is unable to state that the letter was written by the defendant, or by whom it was signed, and when he himself did not read, the letter but it had been read to him by his wife.</p> <p>5. Criminal Law — Instructions.—When in a murder case, the evidence is entirely circumstantial and there is no testimony by any eyewitness to the crime, it is the duty of the court to instruct the jury as to the law of manslaughter and self-defense as well as that of murder. But when the defendant testifies and shows how the homicide occurred, which was that it was committed by persons who attacked him and-the murdered person for the purpose of robbery, and that there was no altercation or combat between himself and the deceased, there no longer exists any reason for instructions upon manslaughter or self-defense, and the court under such, circumstances was not required to so instruct the jury in order to submit to them the whole law of the case.</p>

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

<p>1. Counties — Indebtedness for Roads — Creation of — Elections.—A special election held under section 157a of the Constitution, upon a proposition to issue county bonds for the construction of public roads and bridges, may be held on the same day that the general election is held.</p> <p>2. Counties — Indebtedness for .Roads — Creation of. — Under section 157a of the constitution, an indebtedness for public road purposes may be authorized by a majority of the voters of a county who participate in an election upon that question.</p> <p>3. Statutes — Acts Relating to Roads — Constitutional Law. — The Act of 1896 (sec. 4748b Ky. Stats., 1909), which authorized a county to issue bonds for the purpose of buying privately owned turnpikes and gravel roads, was not repealed by section 89 (sec. 4356s Ky. Stats., 1915) of Chapter 80 of the Acts of 1914, entitled “An Act defining public roads; providing for their establishment, regulation, use and maintenance; and creating the office of County Boad Engineer, and prescribing the duties thereof,” because the purpose of the last named Act to repeal the Act of 1896 was not mentioned in its title,* and therefore violated section 51' of the constitution.</p> <p>4. Counties — -Issue of Bonds for Purpose of Buying Privately Owned Boads — Elections.—Under the Act of 1896 (sec. 4748b Ky. Stats., 1909), an indebtedness of a county to issue bonds for the purpose of buying privately owned turnpike and gravel roads, can be authorized only by the assent of two-thirds of the voters voting at an election held upon that proposition. An election to authorize the issuance of county bonds for the -purpose of buying privately owned turnpike and gravel roads cannot be held under section 157a of the constitution.</p> <p>5. Counties — Indebtedness for Boads — Issuance of Bonds by Fiscal Court — -Mandamus.—After a fiscal court has been authorized under section 157a of the constitution, to issue county bonds for the construction of public roads and bridges, it must issue the bonds as •directed by section 4307 of the Kentucky Statutes; it has no discretion to refuse to act, and upon its refusal to issue the bonds, mandamus will lie to compel it to do so.</p>

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

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

<p>1. Appeal and Error — What Not Reversible. Error. — The- error of the trial court in overruling a motion before answer to require a plaintiff to elect whether he will proceed under the Federal . Employers’ Liability Act or the common law of the state will be treated as any other error of the trial) court, and is not a reversible error, if it was not prejudicial to the substantial rights of the defendant: ic •</p> <p>2. Master and Servant — Interstate -Commerce — Negligence.—Whiere an employe was engaged in his regular duty of throwing the ashes from an ashpit, which was a permanent structure under, the track of a carrier, constructed, foil. and used by the carrier in cleaning the ashes and cinaers from its engines, which were engaged in interstate commerce, and while in such employment, and while throwing out ashes which were received into the pit from interstate engines, the employe was injured by the negligence of other employes of the carrier, in running an engine over him, he was employed in aid and furtherance of interstate commerce, and his cause of action was under the Federal Employers’ Liability Act.</p> <p>3. Trial — Jury—Assent of Required Number — Instructions.—In an action under the Federal Employers’ Liability Act, it is not error to refuse an instruction to the effect that three-fourths of the jury could not make a verdict.</p> <p>4. Appeal and Error — Reversal—Evidence.—A verdict will not be disturbed because of a claim that it is not sustained by the weight of the evidence, unless it is clearly and palpably against the weight of the evidence.</p>

<p>1. Master and Servant- — Assumption of Risk — Appliances.—Thé master is under no duty to -prevent his servant from becoming overheated while engaged in his work, and if there is no defect in the place or appliances or material used or -danger in the manner in which he is required to do the work there can be no recovery; and such injury received by the employe is incidental to the work he is engaged in, and he assumes such risks.</p> <p>2. Master and Servant — Overwork—Injury From. — Every man is presumed to be the best judge of his own physical strength and powers of endurance and to know better than any other can when their limit has been reached, and when, in following his own instinct of self-preservation, he must desist and exercise his right under the law to give up his work; therefore, there can be no recovery by an employe who has been overworked at his particular job because another employe having the same job at other hours of the day, neglected his work.</p>

<p>Justices of the Peace — Judgment to Sell Property — Protection to Commissioner — Jurisdiction.—A judgment by a justice of the peace in an action in which he had jurisdiction of the parties and of the subject matter ordering a sale of certain specific ' personal property attached in the action, is a complete .protection to the special commissioner directed by the judgment to sell the property, even though the commissioner knows at .the time of sale that third parties have or are claiming a prior mortgage on the same property. . .</p>

<p>1. Infants — Sale of Real Estate — Maintenance and Education — 'Sub- . section 3, Section 489 of the Civil Code. — A sale of an infant’s real estate for his maintenance and education should not be ordered except in a case of clear necessity.</p> <p>2. Infants — Sale of Real Estate — Jurisdiction—Maintenance and Education — Subsection 3, Section 489 of the Civil Code. — Where an infant has an undivided interest in two smaller tracts of land, which are not likely to increase in value and whose proceeds are sufficient for his present necessities, his undivided one-fourteenth interest in a large tract of mineral and timber land, which will probably increase in value-, should not be ordered sold for his maintenance and education, where the proceeds are far in excess of his present necessities and a large portion thereof may never be needed for the purpose for which the land is sold.</p> <p>3. Infants — Sale of Real Estate — Jurisdiction—-Maintenance and Education — Subsection 3, Section 489 of the Civil Code. — The chancellor is without authority to sell an infant’s real estate for his maintenance and education, in the absence of evidence of inability of his parents to maintain and educate- him.</p> <p>4. Infants — Sale of Real Estate — Maintenance and Education — Inability of Parents — Evidence.—In an action for the sale of an infant’s real estate for maintenance and education, the statement of a parent that he is unable to maintain and educate the infant is not sufficient evidence of his inability. He should state the facts with reference to the amount and character of his property, his income therefrom and from other sources, and give a list of the members of his family dependent on him, so that the court itself can determine the question of his inability.</p>

<p>, 1. Infants — Juvenile Delinquents — Jurisdiction of Courts. — It lies exclusively with the county court to determine whether a juvenile offender shall be treated as a delinquent child, or be prosecuted as a felon.</p> <p>2. Infants — Juvenile Delinquents — Jurisdiction of Courts. — Under subsection 5 of section 331e of the Kentucky Statutes, which requires an arrested juvenile offender to be returned to the county court for trial, and the giving of a notice to his parent, guardian, or next friend, the giving of the notice is a prerequisite to the jurisdictionof the county court to try the offender.</p> <p>3. Infants — Juvenile Delinquents — Jurisdiction of Courts. — Where an infant was arrested upon a warrant for forgery issued by the county court, the court had no jurisdiction under subsection 5 of section 331e of the Kentucky Statutes to transfer the juvenile offender to the circuit court for trial until it had given notice of the infant’s arrest to his parent, guardian or next friend, as required by subsection 4 of section 331e of the Kentucky Statutes.</p>

<p>1. . Mandamus — Judicial Officer — When Mandamus Will Issue. — In this jurisdiction there need not be a definite, unqualified refusal to act on the part of a judicial officer before the writ of mandamus will issue, but only a willful neglect, unreasonable delay or refusal to act.</p> <p>2. Mandamus — Matters of Discretion. — Where a judicial officer has a discretion over the subject matter, the writ of mandamus will not issue to control such discretion, but only to compel him to act where he willfully neglects, unreasonably delays or refuses to do so.</p> <p>3. Mandamus — When Mandamus Will Not Issue Against a Judge.— There being, in this case, no showing that the defendant judge refused to act; and it appearing from all the facts that under the circumstances his delay in ruling was neither unreasonable nor with the intention to deny justice to the parties, the writ of mandamus will be refused.</p>

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

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

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

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

<p>1. . Appeal and Error — Joinder—Discretion of Lower Court. — Whether ' cases by different plaintiffs against the same defendant involving ' the same issues should be tried together is a matter in the discretion of the trial court, and such discretion will not be interfered with on appeal unless it was clearly abused.</p> <p>2. Street Railroads — Schedule—Evidence.—Evidence of the schedule time of a street car over the route where an accident occurred is competent where it alleged the car was being operated negligently at the time of the accident.</p> <p>3. Street Railroads — Negligence—Instructions.—Last clear chance instruction is proper after instruction on contributory negligence where the evidence tends to show that by the exercise of ordinary care a motorman could have discovered the peril of a person on the track in time to have stopped the car with safety to the car ■ and passengers so as to have avoided, the accident.</p> <p>4. Negligence — Imputed Negligence. — One riding in a vehicle is not chargeable with the negligence of the driver, unless the relationship of master and servant or principal and agent exists, or the parties are shown to be engaged in a joint enterprise.</p> <p>5. Street Railroads — Operation.—A street car must have been running at a reasonable rate of speed to relieve the company from liability for injury to a person suddenly coming on the track in front of the car.</p> <p>6. New Trial — Inadequacy of Verdict. — A new trial cannot be granted upon the sole ground of inadequacy of the verdict in any action whether in contract or tort on which it is sought to recover damages, independent of special damages.</p>

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

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

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

<p>1. Officers — Fiscal Courts — Salary of. Officer — Power to Change.— Where the salary of a county officer has been fixed before his election the fiscal court cannot change it after his election. But if it has n-ot been fixed before his election, it may be fixed afterwards.</p> <p>2. Courts — Fiscal 'Courts — Requisites of Order Showing Members Present. — Where the records of the court state that the county judge is present, it is not necessary that they should further mention his name, as, for example, reciting that the county judge, J. W. Wilson, was present.</p> <p>3. ‘Courts — Fiscal Courts — Orders of Must be Read,' Approved and Signed. — Under sections 1842 and 1843 of the Kentucky Statutes it is essential to the validity of orders of the fiscal court that they should be publicly read and signed by the county judge or presiding judge, with the approval of the justices present.</p> <p>.4. Courts — Fiscal Courts — Sufficiency of Record Showing Who Held the Court. — It will be sufficient if the orders show the members who were present at the meeting,, as it will be presumed that those present as shown by the order held the court.</p> <p>5. Courts — ‘Fiscal Courts — Presumption That Record Was Read and Signed With Approval. — If the record shows by whom the court was held, and is signed by the judge or presiding judge, as the case may be, but is silent on the subject of whether the proceedings were publicly read and signed by the judge, with the approval of the justices present, the presumption will be that the statute was observed and these requirements complied with.</p> <p>6. Courts — Fiscal Courts — Verity of Record Cannot be Impeached in Collateral Proceedings. — The records of the fiscal court, fair and regular on their face, cannot be impeached or contradicted or varied by parol evidence in a collateral proceeding.</p> <p>7. Courts — Fiscal Courts — Effect of Attempt to Change Proceedings of One Meeting at a Later One. — Orders of the fiscal court made at one regular meeting of the court are not affected by a recital in the orders at a subsequent meeting that the orders of the court made at the first meeting were read and approved.</p> <p>8. Attorney and Client — Attorney’s Fees — Payment Out of Public Fund Collected. — Citizens wbo successfully bring suit to recover back public funds wrongfully appropriated should be allowed compensation for their attorneys, payable out of this fund, when it has been collected and paid into the county treasury.</p>

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

<p>1. Husband and Wife — Separation—Residence of Wife. — Until there is a separation the domicile of the husband is the legal residence '' of the wife.</p> <p>2. Elections — Qualification of Voters — Schools and School Districts— Women. — To be qualified to vote in a school election under section 4535h of the Kentucky Statutes a woman must be able to read in a reasonably intelligible manner- sentences composed of words in common use and of average difficulty, and to be able to write in a fairly legible way words in common use and of average difficulty, but the pronunciation and spelling need not ' he accurate.</p>

<p>1. Railroads — Fires.—It is the duty of a railroad company under section 782, Kentucky Statutes, to equip its engines with the latest approved appliances and spark-arresters in use to prevent the unnecessary escape of sparks producing fires along its right of way and to maintain and keep them in reasonably good condition, and if it should fail to do so and a fire should occur resulting in the destruction of property, the company will be liable to the owner to the extent of the value of the property destroyed.</p> <p>2. Railroads — Fires—Damages.—In a suit to recover for the value of property destroyed by fires produced by the escaping of sparks from an engine of a railroad company, it is competent for the plaintiff in order to show, negligence on behalf of the company to prove that other fires in the vicinity occurred shortly before or shortly after the fire producing the damage, as well as. to show the quantities and sizes of cinders thrown from the engine of defendant at such times, as bearing upon the condition of the engine causing the fire on the day it occurred.</p> <p>3'. Railroads — Question for Jury. — Evidence examined and held that a peremptory instruction for the defendant should not have been given, but that is was proper to submit plaintiff’s case to the jury under approved instructions.</p>

<p>1. Judgment — Bar.—A trial and judgment is a bar to another action based upon the same cause of action.</p> <p>2. Trial — Joinder.—A defendant may by consent or by defending separate suits for parts of the same cause of action waive his right to object to the non-joinder.</p> <p>3. Continuance — Absence of Litigant. — Absence of a party on private business of an ordinary character is not of itself sufficient cause for a continuance.</p> <p>4. Damages — Loss of Time — Special Damages. — Loss of time is special damage for which no recovery can be had unless specially pleaded, but evidence of loss of time is competent to show extent of injury whether recovery is sought therefor or not.</p> <p>5. Damages — Pleading.—Under allegation in the petition that plaintiff was injured internally, which allegation is controverted in the answer, evidence of injury to the liver is competent.</p>

<p>1. Descent and Distribution — Husband and Wife — Murder of Husband by Wife — Rights of Wife. — A wife who wrongfully kills her husband does not forfeit her statutory right to share in his estate.</p> <p>2. Statutes — Amendments—Interpretation—Sub-section 5, section 1403 of the Kentucky Statutes, 1909 — Sub-section 5, section 1403 of the Kentucky Statutes, 1915. — Sub-section 5, section 1403’ of the Kentucky Statutes, 1909, provides in substance that certain exempt property should be set apart to the “widow or infant child or children of the intestate.” By sub-section 5, section 1403 of the Kentucky Statutes, 1915, the words “to the widow or infant child or children” are changed so as to read “to his widow and children, or, if no widow, to his infant children or child surviving him.” Held, that by reason of the change in the language the legislature intended that the exempt property should be for the benefit of both the yidow and children of the intestate.</p> <p>3. Descent and Distribution — Husband and Wiife — Death of Husband —Exempt Property — Rights of Widow. — Where an intestate dies leaving a widow and six infant children and she and the children cannot live together by reason of the fact that she is confined in the penitentiary, she is not entitled, under sub-section 5, section 1403 of the Kentucky Statutes, 1915, to all of the exempt property but to only a child’s part, or one-seventh thereof.</p>

<p>1. Venue — Change of — Application—Notice—Sufficiency—Kentucky Statutes, Section 1110. — Where a notice of an intended application for a change of venue does not specify the date on which the application will he made, the notice is insufficient and the application will not be considered unless the Commonwealth waives its right to object.</p> <p>2. Judges — Vacation of Bench — Affidavit—Sufficiency—Refusal to Vacate — Error.—It is not error for the regular judge to refuse to vacate the bench, where the affidavits accompanying the motion therefor merely state the conclusions of the litigant and do not state the facts which show partiality or hostility on his part.</p> <p>5. Jury — Juror Excused — Discretion of 'Court — Error.—The excusing of a juror before the jury is sworn to try the case and before the defendant has pleaded to the indictment will not be regarded as prejudicial error, since at that stage of the proceeding the matter is one that addresses itself to the sound discretion of the court; and it will be assumed, in the absence of a showing to the contrary, that the juror was excused for a valid and sufficient reason.</p> <p>4, Witnesses — Cross-Examination—Recall—Discretion of Court. — It is not an abuse of discretion or prejudicial error for the trial judge to permit the Commonwealth, after the defendant had closed, to recall certain alibi witnesses for the defendant for' the purpose of cross-examining them and testing their memories with respect to dates and places other than those connected with the alibi.</p> <p>6. Appeal and Error — Instructions—Bill of Exceptions — Objection. ■ — Objections to instructions not before the court will not be considered, since the court has no means of determining whether they áre correct or not.</p>

<p>1. Municipal Corporations — Defective Sewers — Action for Damages. —In an action by a mercantile corporation for damages resulting from tbe flooding of. its store and stock of groceries by defective city sewerage system, evidence examined and held sufficient to take the case to the jury on the questions of the city’s negligence, and plaintiff’s damages involved.</p> <p>2. Negligence — Contributory Negligence — Duty to Minimize Loss.— The injured party, upon finding that injury has been caused his property by the act of another, must use all reasonable means to arrest the loss, but need use only reasonable exertions and expense for the purpose, and whether such reasonable effort was made depends upon the particular case.</p> <p>3. Pleading — Averments Not Denied Taken as True. — Averments in plaintiff’s amended petitions, not denied by the defendant’s answer, must be taken as true, and the questions involving .facts so admitted should not be submitted to the jury.</p> <p>4. Damages — Measure of. — In an action for damages sustained by loss of grocery stock by flooding, an instruction fixing the measure of recovery as to the stock destroyed at the fair market value thereof at the time of such destruction; and as to stock injured, at the difference between the fair market value before injury and just after, is correct.</p> <p>6. Appeal and Error — Instructions—When Not Prejudicial. — Where certain instructions were given at its request, were unduly favorable to it and could only have been prejudicial to the other party, the party requesting such instructions cannot complain of their being given, though they were unauthorized by pleadings and proof.</p>

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

<p>Appeal from the Whitley Cricuit Court.</p>

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

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

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

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

<p>Vendor and Purchaser — Vendor’s Lien — Assignment—Priority.-— Plaintiff sold to the Whaley-Peed Lumber Company certain timber. In the deed, which was recorded, a lien was reserved to secure the deferred portion of -the purchase price. Thereafter the lumber company sold to D. Beets lumber of the value of $502.42. After that the lumber company borrowed $700.00 from J. S. Ashworth and executed its note therefor, secured by an assignment of the Beets’ contract. Plaintiff sued the lumber company for the deferred payments and attached the lumber sold to Beets. (Beets, who had sold the lumber, wrote that he wanted to ship it and would pay the purchase price to the clerk of the court. To this plaintiff agreed and the lumber was shipped to Beets, who was subsequently summoned as garnishee. Beets answered and admitted an indebtedness of $502.42, which sum he was directed to pay into court: Held, under the particular circumstances, that the plaintiff’s lien was not lost by the fact that it permitted Beets to take the lumber, but followed the proceeds, of whose identity there is no question, and is, therefore, superior to Ashworth’s assignment.</p>

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