Volume 171 — Kentucky Reports

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

<p>1. Railroads — Operation—Duty to Keep Lookout. — Although, ordinarily, the duty of keeping a lookout, holding the train under control, and giving warnings of approach is not required of train men for the benefit of those employes of a railroad, whose duties are to keep the track clear for the passage of trains, and to know the time of the arrival of trains, as it is their duty to watch for the trains and to keep out of the way, but where a warning has been given train men to proceed with the train under control, reduce the speed and to proceed with caution, it is their duty to do so, and to ignore such a warning is evidence of negligence and indifference to consequences.</p> <p>2. Master and Servant — Assumption of Risk. — If a section hand, with the knowledge of the approach of a train, and in a safe place, with full appreciation of the danger of so doing, voluntarily attempts to cross the track in front of the engine and takes his chance of so doing, he assumes the risk of the danger of such attempt, and the railroad is not liable for his death.</p> <p>S. Master and Servant — Assumption of Risk. — If a section hand goes into a dangerous place by the order of his foreman, who is his superior and whose order it is his duty to obey, and in the course of his employment, does not assume the risk of the danger of such place, unless the danger of obeying such order is such, that no prudent man would do so.</p> <p>4. Master and Servant — Assumption of Risk. — If, through the negligence of an employer, an employe is placed in a dangerous place, where it is necessary for the employe to act immediately for his safety, and he acts as an ordinarily careful man would, in like circumstances, he is not chargeable with having assumed the risk for having mistaken the unsafe course for the safe course to pursue to a place of safety, nor is he guilty of contributory negligence in having made the mistake.</p>

<p>1. Elections — Contest—Parties.-—Where there are eight candidates for commissioner in a city governed under the commission form o£ government and only four commissioners are to be elected, and no one of the eight is a candidate for any particular commissionership, in a contested election case one of those who is conceded to have been fairly elected is not a necessary party to the -contest, the only question being which one of the parties to the contest, who were candidates for commissioner, received the highest number of legal votes.</p> <p>2. Elections — Intimidation—Threats.—Where fourteen hundred members of a secret political organization have taken a solemn oath signed in blood that they will obey the political orders of one man, and the evidence shows that the great mass of them believed they were legally and morally bound by this oath, and the evidence shows that at the election they did so obey his orders, and that at meetings of the organization held shortly before the election they were directed and drilled by this man as to how they should vote, and there is other evidence of intimidation and threats, there was such intimidation as will prevent a free election within the meaning of the constitution.</p> <p>3. Elections — Intimidation—What May Constitute. — It is not necessary under our statute to constitute intimidation that physical violence should be used, or that there should be threats against person or property. Intimidation may be practiced by other means.</p> <p>4. Elections — Intimidation.—Our government is builded upon .the rights and duties of the individual, and any organization which has for its purpose the abdication by the individual of his sovereignty and the granting and giving by him to another of the exercise of his duties of citizenship, strikes at the foundation of the whole structure and cannot be tolerated.</p> <p>6. Elections — Intimidation.—An election can not be free and equal where' approximately thirty per cent, of the electors are not at liberty to cast their votes according to their own volition and judgment because of coercion growing out of their membership in an unlawful organization wherein they had taken an oath to submit to the political domination of another and east their votes as he may direct rather 'than in accordance with their own judgment and conviction.</p> <p>6. Elections — Intimidation.—When thirty per cent, of the voters at an election have been intimidated, and there is no way of ascertaming how they would have voted if they had not been, and the returns show the election to have been close, the court under our statute, has no alternative except to treat the election as void.</p>

<p>1. Statutes — General and Special or Local Laws. — An act of the legislature is not necessarily local and, therefore, violative of section 59 of the constitution when applicable only to a class of subjects or objects; provided the classification is not unreasonable or arbitrary.</p> <p>2. Statutes — General and Special or Local Laws. — The classification for legislation of “Special Act” graded schools having an endowment fund is not an arbitrary or unreasonable classification, as there are many such schools in the state to which such a law is applicable.</p> <p>3. Elections — School Elections — When May be Held. — School elections for the purpose of bonding the district to construct, remodel and repair the buildings of the district, and otherwise adequately equip the school, may be held on any day after being properly called, other than the general election day; and they are not invalid because of female voters having the qualifications prescribed by law, participating therein; nor is it required that the voting in such elections shall be by ballot, as it is competent for the voting to be viva voce.</p>

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

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

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

<p>1. False Pretenses — Elements of Offenses. — It is necessary in order to constitute the offenses denounced by section 1208 of the Kentucky Statutes of procuring of other property by false and fraudulent pretenses that the false pretenses should relate to an existing or past fact. The offense, however, is not affected when this requirement is found bcause of an additional false statement concerning something to be done in the future.</p> <p>2. False Pretenses — Evidence.—If, under an indictment for such an offense, the Commonwealth proves only the false statement or pretense that something will be done in the future, there is a failure to establish the guilt of the defendant.</p> <p>'3. False Pretenses — Obtaining Money Under — Insufficiency of Evidence. — Where the proof shows that J. gave to S. some money under a promise that the former would procure for J. some whiskey, but instead of doing so he never returned but kept the money, it was insufficient to justify a conviction of S. of the offense of obtaining money under false pretenses. Quere, whether under such circumstances S could be convicted of the offense charged, although he may have falsely represented to J. that he, the defendant, then had the whiskey in his possession, if it should be shown that at the time and .place the local option law was in force?</p>

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

<p>1. Criminal Law — Review—When Evidence Sufficient to go to Jury.— In a prosecution for grand larceny, where the evidence conduced to prove that money was stolen; that defendant was the only person who had an opportunity to steal it; that he fled from the state after he was charged with the crime; and that he offered to pay $200.00 to prevent his prosecution; such evidence required submission of the case to the jury and will support its verdict of guilty.</p> <p>2. Criminal Law — Evidence'—Statement Not in Presence of Defendant. — It not appearing that a conversation between jail officials and the sheriff who went to take charge of defendant, to the effect that defendant had been using an assumed name, took place in the presence or hearing of defendant, or that he was close enough to or did hear or understand any statement to that effect, evidence of such conversation was not competent, and being prejudicial to defendant, will compel a reversal of the case on appeal.</p> <p>3. Evidence — Contents of Letter — How Proved. — In the absence of a letter its contents cannot be proved by oral evidence, without a showing of its loss or destruction, or that from some other sufficient cause the party offering to prove its contents is unable to produce it.</p> <p>4. Criminal Law — Evidence—Contents of Letter — When Proof of Not Admissible. — Evidence as to the contents of a letter from a bank to the defendant in a criminal prosecution held not admissible, where it was not made to appear that defendant had ever received the letter or had it in his possession; had any business dealings with the bank; or that there was any such bank; or identification of the signature to the letter as that of an official of the bank.</p> <p>5. Criminal Law — Evidence—Character of Defendant. — Where defendant in a criminal prosecution testified in his own behalf, the Commonwealth was properly allowed to introduce in rebuttal evidence showing his bad moral character and want of veracity.</p> <p>6. Criminal Law — Record—Notation on by Trial Judge as to Evidence. — After the transcript of evidence has been approved by the trial judge and made a part of the record, it is official and conclusive as to the testimony given in the case; therefore, on appeal, a notation by the trial judge following the bill of evidence, as to evidence and rulings which in his recollection were not as given in the bill of evidence, will not be considered by the Appellate Court. If corrections are to be .made he should correct the bill of evidence before approving and signing it.</p>

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

<p>1. Attorney and Client — Disbarment Proceedings — New Trial.— ■Where an attorney, in response to rules charging the commission of offenses that authorized his suspension or disbarment, admitted his guilt and was at once permanently disbarred, he should have a new trial if the circumstances connected with the filing of the response and confession of guilt are such as to show that he did not fully appreciate or understand the consequences of what he was doing.</p> <p>2. Attorney and Client — Suspension or Disbarment — Ground for. — - Where an attorney, who was not connected with a pending ease, learned of a material witness for the plaintiff of whose whereabouts the plaintiff was ignorant, and refused to discover the witness until he was employed in the case, he was guilty of such unprofessional conduct as to warrant the issual of a rule for misconduct.</p> <p>.3. Attorney and Client — Personal Solicitation of Business. — The per-f sonal solicitation of business by an attorney does not constitute sufficient grounds for suspending or disbarring him, in the absence of a statute.</p> <p>¡4. Attorney and Client — Solicitation of Business Through Non-Professional Agents. — An attorney who employs, for a stipulated consideration or a contingent fee, agents or runners to secure business for him is guilty of such unprofessional conduct as to warrant his suspension or disbarment.</p> <p>5. Attorney and Client — Suspension or Disbarment — Procurement of False Testimony. — An attorney who is guilty of procuring false testimony in a case commits an offense that warrants his suspension, or disbarment.</p> <p>6. Attorney and Client — Power of Courts to Regulate Conduct of Attorneys.- — Courts independent of statutes possess the inherent right to control and regulate the official conduct of their officers, such as attorneys, and to inflict upon them punishment for official misconduct.</p>

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

<p>1. Deeds — Description—Construction—Open Line. — Where a call in a deed is to the “open line” of a survey, the words “open line” will be construed to mean marked line and not a stake line, where the other portions of the description call for natural objects and lines running on the ground.</p> <p>2. Adverse Possession — Extent of Possession. — A person who enters upon land to which he has title cannot, as against the superior title holder, extend his possession to an adjoining tract of land and acquire title thereto by adverse possession, without actually . entering upon such adjoining tract and holding it adversely for the statutory period.</p> <p>3. Deeds — Reservation and Exceptions — Construction—Transposition of Clauses. — Where excepting clauses in a deed naturally relate to different subjects, they will not be transposed in order to give the instrument a different meaning, on the theory that if so transposed they will, perhaps, more nearly conform to the possible intention of the grantor, unless, as they appear in the deed, they ' are absurd or inconsistent with or repugnant to the rest of the deed or the clear intention of the grantor..</p>

<p>1. Public Lands — Disposal of by State — Collateral Attack of Patent.— Ordinarily tbe validity of a patent cannot be collaterally attacked, but there are some exceptions to this rule as where the patent is void upon its face, or has been issued in contravention of a statute which declares that the issuance of the patent under the circumstances prohibited shall render it void or where it is issued under circumstances which the statute declares to be fraudulent.</p> <p>2. Public Lands — Disposal of by State — When Patent Void. — Under section 4704 of the Kentucky Statutes every entry, survey and patent of land is void if the same land had been previously entered? surveyed or patented.</p> <p>3. Public Lands — Disposal of by State. — The previous entry or survey that will render void subsequent entries, surveys and patents must be legal and valid.</p> <p>4. Public Lands — Entry and Survey.- — A land warrant issued by the county court is essential to the validity of an entry and survey of vacant lands to the county.</p> <p>5. Joint Tenancy — Trespass—Action For. — A joint owner of land cann'ot recover for trespass more than his proportionate part of the whole damage done.</p>

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

<p>1. Injunction — Granting of — Absence of Presiding Judge. — By the provision of section 273, civil code of practice, jurisdiction to grant' a mandatory injunction is conferred upon and confided to the circuit judge of the district, and in his absence to a judge of similar ' jurisdiction.</p> <p>2. Injunction — Practice.—The proceeding to prepare for the holding of a primary election to fill vacancies in the offices of mayor and commissioners should have been by mandamus and not by injunction, when, as in this case, relief could not be had sooner than the date of the election.</p> <p>3. Officers — Vacancies in Offices of Mayor and Commissioners — Constitutional Law. — Where a vacancy arises in the offices of mayor and commissioners in a second class city more than three months before the regular election, the appointees hold until the regular election, the provision of section 152 of the constitution controlling. The General Assembly may prescribe qualifications and fix the manner of filling vacancies, but may not extend the length of time appointees may hold as it attempted to do in enacting the charter for second class cities.</p>

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

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

<p>Judgment — Construction of. — A judgment of a circuit court construing a will which, fixes the interest and title of devisees, and a judgment thereafter rendered by the same court at the same term directing a deed to he made to the devisees, should he read together and construed as one judgment.</p>

<p>1. Criminal Law — Sweating—What Constitutes. — Tbe propounding o£ a single question to a defendant in custody does not amount to “sweating” within the meaning of our statute; it is the plying him with persistent and repeated questions with the purpose to use his admissions against him which is denounced, and the answers elicited by such repeated questions which are declared to be incompetent.</p> <p>2. Criminal Law — Admissions.—Voluntary statements of persons in custody charged with crime may be used against them.</p> <p>3. Criminal Law — Plying With Questions. — “Plying with questions” means the propounding of persistent and repeated questions of the same nature to the person in custody.</p>

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

<p>Appeals- from Perry Circuit Court.</p>

<p>1. Master and Servant — Liability of Master to Servant. — Neither the master nor his servant is liable to another servant for mere mortification of feeling or even fright unaccompanied by physical injury, which may be caused by the acts of the first servant in cursing the second, or in ordering him from his house after the second servant has cursed in the presence of the wife of the first.</p> <p>2. Assault and Battery — Acts Constituting Assault. — The cursing of one by another, unaccompanied by any show of force or offer or attempt at corporeal injury, and which does not put him in fear of immediate danger, is not an assault.</p> <p>3. Assault and Battery — Damages.—Where A is the first aggressor, cursing B in the presence of B’s wife, he cannot recover damages of B for any mortification of feeling caused either by B’s retaliatory cursing of him or ordering him from his home.</p>

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

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

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

<p>Appeal from Jefferson Circuit Court (Criminal Branch),</p>

<p>1. Municipal Corporations — Automobiles—Duty of Operator at Street Crossings and Other Places. — It is the duty of the operator of an automobile at street crossings as well as at other places used by pedestrians, to keep a lookout, to run his machine at a reasonable rate of speed, and to give warning of its approach.</p> <p>2. Municipal Corporations — Street Crossings — Duty of Pedestrian at. —It is the duty of a pedestrian in crossing a street used by automobiles and other vehicles to exercise such care as a person of ordinary prudence would exercise for his own safety in crossing a street at such a crossing, considering the amount and kind of vehicle traffic thereat. He is not obliged as a matter of law to look or listen for the approach of automobiles in order to keep out of their way, and whether he has exercised the required degree of care is for a jury to say under all the facts and circumstances proven in the case.</p> <p>3. Municipal Corporations — Streets—Reciprocal Duties of Pedestrians and Automobilists at Crossings. — The pedestrian and the automobilist have equal rights in streets that are set apart for the use of vehicles as well as for the accommodation of foot-travelers, and each has rights that the other is hound to respect.</p>

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

<p>1. Highways — Dedication of Land for Public Road — Right of Public to Use. — Where land has been dedicated by the owner as the right-of-way for a public road, and the dedication has been accepted by the county and the neighbors jointly constructing the road upon the highway as dedicated, the right of the public to use the road without jiindrance from the owner of the burthened estate is complete.</p> <p>2. Highways — Obstruction—Who May Bring Action For. — The general rule is that a private person can bring an action to abate the unlawful obstruction of a public way only when he has sustained special damage thereby, different not merely in degree, but in kind, from that suffered by the community at large.</p> <p>3. Highways — Obstruction—Nuisance.—The obstruction of a highway which is a direct route leading from one’s property, so as to compel him to take a circuitous route to reach it, is such special injury to the land owner as to entitle him to maintain a suit to abate the nuisance.</p>

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

<p>Divorce — Discretion of Court in Granting. — A divorce from bed and board may be granted for such cause as the court from the evidence in the exercise of a sound discretion may deem sufficient, although the petition charges only grounds for absolute divorce, which were not proven.</p>

<p>Intoxicating Liquors. — There is no statute in' Kentucky which makes it an offense to solicit persons, in territory where the local option law prevails, to make purchases of whiskey, from a licensed dealer, in territory where the local option law is not in force.</p> <p>2. Intoxicating Liquors — Carriers—Place of Sale. — When one makes an order upon a dealer for liquor, hy mail, enclosing the price of the liquor to be purchased, with directions to forward the liquor hy a common carrier, and the dealer, at his place of business, accepts the order and delivers the liquor to the common carrier, consigned to the purchaser, the sale is made where the liquor is delivered to the common carrier, and not where the purchaser receives it from the carrier.</p>

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

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

<p>1. Deeds — Restraint of Alienation. — A provision in a deed of gift from father to son that the vendee shall not convey the property to any person other than the father’s bodily heirs for the term of twenty years, is a reasonable restriction upon alienation.</p> <p>2. Deeds — Restraint of Alienation. — A conveyance made in violation of such restriction is merely voidable and not void.</p> <p>3. Deeds — Restraint of Alienation — Waiver—Forfeiture.—The joining by the father with the son, in the deed, violating the restraint upon alienation waived the right of the father or his heirs to exact the forfeiture.</p> <p>4. Deeds — Restraint of Alienation — -Forfeiture.—Such forfeitures may not be exacted after the expiration of the restrictive period.</p>

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

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

<p>Interest — Specific Performance. — In an action for the specific performance of a contract for the sale of land, interest will not be adjudged from the date the purchase price is due where the vendors have failed to make a deed and have themselves remained in possession of the land. Interest will go only from the date the proper deed is tendered by the grantors.</p>

<p>1. Schools and School Districts — Suspension or Removal of Teacher. —In a proceeding to suspend or remove a teacher under section 4417, entucky Statutes, where the notice to the teacher, though • defective, in not specifying the acts complained of and the time of their commission, was sufficient in other respects, and he appeared and defended, the superintendent had jurisdiction and his judgment Is not void and cannot, therefore, be assailed collaterally.</p> <p>2. Schools and School Districts' — Removal of Teacher — Remedy of Teacher. — The remedy of a teacher removed under section 4417, Kentucky Statutes, even though the judgment of the superintendent removing him be voidable, is by appeal to the state superintendent of public instruction and not by injunction, neither the circuit court nor the Court of Appeals, under section 4418, having jurisdiction.</p>

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

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

<p>3... Intoxicating Liquors — Offenses—Criminal Prosecutions. — In order to sustain a prosecution under section 2557b, Kentucky Statutes, for having intoxicating liquors in one’s possession for the purpose of selling them in local option territory, the Commonwealth should show: (1) that the person being prosecuted had liquors in his possession; and (2) that he had them for the purpose of selling them in local option territory. But it is npt essential to sustain a conviction that direct evidence of either of these facts should be made by the Commonwealth since a conviction may be had upon circumstantial evidence.</p> <p>2. Intoxicating Liquors — Section. 2569b Kentucky Statutes. — In-enacting section 2569b, Kentucky Statutes, the legislature had. no purpose to make the agent’s record of an endorsement made upon the outside of a package of whiskey by the consignor, prima facie evidence ’ of the use the consignee should make of it after it was received in his possession, and it was not error in a prosecution under section 2557b to exclude from the consideration of the 'jury the fact that the records of the express office showed the shipments were^ endorsed for “personal use.”</p> <p>3. Criminal Law — Plea of Former Conviction — Plea of Record. — In order for the plea of former conviction to prevail, it must have been entered of record in the lower court, and where this was not done, accused is precluded from making it in the Court. of Appeals.</p>

<p>1. Intoxicating Liquors — Sale of in Local Option Territory — Evidence. — In determining the purpose of the defendant in a case charging him with having intoxicating liquors in his possession for the purpose of selling them in local option territory in viola-ton of section 2557b of the Kentucky Statutes, the jury are not confined to his testimony alone,, but have a right to take into consideration all the facts and circumstances surrounding the transaction.</p> <p>2. Intoxicating Liquors — When Entry in Book of Carrier Has No Application. — Subsection 3 of section 2569b of the Kentucky Statutes, which makes the entries upon the book of the common carrier of liquors into local option territory prima facie evidence of every fact shown by the book, has no application in the trial of an indictment under section 2557b of the Kentucky Statutes, for having whiskey in one’s possession for the purpose of sale in local option territory.</p> <p>3. Appeal and Error — New Trial. — Alleged misconduct upon the part of the trial judge which was not assigned as a ground for a new trial, cannot be reviewed upon appeal.</p> <p>4. Intoxicating Liquors — Possession in Local Option Territory — Previous Conviction. — Upon the trial of an indictment under section 2557b of the Kentucky Statutes for having whiskey in one’s possession for the purpose of sale in local option territory, it is competent to show a previous conviction for the same offense, or for the offense of having sold whiskey in local option territory, provided the former conviction was reasonably near the time of the alleged offense for which the defendant is upon trial. Five years is not a reasonable time within the meaning of this rule.</p>

<p>3, Municipal Corporations — Taxation-—Distribution of Taxes — Pay- •• ’ ment to School Board. — While the board of commissioners in cities of the second class may not discharge its obligations to the board of education by apportioning to the board of education delinquent taxes that have already been levied for school purposes, it may insist that the board of education shall include such delinquent taxes' in estimating its resources from sources other than the tax levied by the board of commissioners.</p> <p>2. Mandamus — Municipal Corporations — Cities of Second Class. — • Where, in an action by the board of education of a city of the second class against the board of commissioners to compel an additional tax levy, it appears that the board of education will receive delinquent taxes to a certain amount, and it does not satisfactorily appear that these delinquent taxes have been included by the board of education in its estimate of its resources, mandamus will not lie to compel an additional levy when the delinquent taxes will make up the deficit.</p> <p>0. Municipal Corporations — Cities of Second Class — Taxation—■ School Estimate. — In estimating its revenue from sources other than city taxation, the board of education of a city of the second class is not required to include a judgment in favor of the board and against the city, from which an appeal has been prosecuted.</p> <p>4. Mandamus — Municipal Corporations — Cities of Second Class. — ■ Where the board of commissioners of a city of the second class levies a tax on all taxable property sufficient, if collected, to produce the sum requested by the board of education, mandamus will not lie to compel the levy of a larger tax, on the theory that all the taxes levied will not be collected and available for school purposes during the year for which they are levied.</p>

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

<p>1. Deeds — Repugnancy—When Granting Clause Will Prevail. — If there is a clear repugnance between the granting clause and the habendum clause in a deed, and there is nothing in the instrument from which the Intention of the parties may be obtained, the granting clause will prevail, and the estate conveyed therein will : be upheld over that which is described in the habendum clause. But this does not prevail where a different intention is shown by the entire deed, for it is the modern rule that the entire instrument may be looked at to obtain the intention of the grantor, and if from an inspection of the entire instrument the estate granted In the granting clause is reduced or qualified in any way, such interpretation will be given the instrument.</p> <p>2. Deeds — Conditional Fee — Forfeiture.—On April 5, 1901, the grantor conveyed to his daughter and her three infant children jointly a piece of land, the consideration for which, as expressed in the deed, was that the daughter and her husband should take care of and provide for her father during his lifetime. Twelve days thereafter, and on April 17, 1901, the daughter concluded to surrender the undertaking and rescind the contract by herself and husband reconveying the property to her father, the consideration of which latter deed is expressed to be a release of the grantees in the first deed from the performance of the contract therein specified. Nothing was ever done by the daughter or her children who were her joint grantees, in furtherance of the fulfillment of contract, but on the contrary after the deed of April 17, 1901, the father remained in possession of the property, and afterwards sold it for valuable consideration. It was expressly stated in the first deed that if the consideration therein expressed was not complied with, the title to the land should become forfeited, and it was further provided that the fee should not pass until the death of the grantor. Held, that although in the granting clause of the first deed an absolute estate was conveyed, from an inspection of the entire deed only a conditional fee was granted, to become forfeited if the consideration was not performed by the grantees, and that this non-performance worked a forfeiture of title to the grantor, who, being in possession, conveyed to a subsequent grantee a perfect title, and that the infant grantees have no interest in the land, and the deed of April 5, 1901, should be cancelled in this suit brought by the present owner against such infant grantees to remove the cloud upon his title.</p>

<p>1. Constitutional Law — Title of Acts. — Section 51 of the constitution provides, in part, that “No law enacted.by the general assembly shall relate to more than one subject, and that shall be expressed in the title,” and it is indispensable to the validity of legislative enactments that the subject matter shall by reasonable interpretation be expressed in the title.</p> <p>2.- Constitutional Law — Title of Act — Void Legislation. — Where an act was entitled “An act to amend and re-enact section 1486, Carroll’s edition of the Kentucky Statutes of 1915, entitled ‘Registration in Certain Cities and Towns,’ ” and the section proposed to b© amended related exclusively to registration in cities and towns, but the body of the amendatory act under this title merely made provision for extending the registration laws applicable to cities and towns to country districts, the subject of the act was not expressed in the title and the legislation was void.</p>

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

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

<p>1. Frauds, Statute of—Contract for Sale of Land—Parol Evidence.— In a contract in writing for tbe sale of lands, if tbe description of tbe lands is sufficient to so identify them, that without tbe aid of extrinsic testimony, they can be designated and pointed out by parol evidence, tbe requirements of tbe statute of frauds are satisfied, so far as relates to a description of tbe property pur-, posed to be sold.</p> <p>2. Contracts—Written Contracts—Pleading.—When an action is founded upon- a writing, tbe writing should be set out in tbe petition, or so much of it as is material to tbe cause of action, and the writing should be filed with tbe petition as a part of it.</p> <p>3. Contract—Breach of for Sale of Land.—In a suit for tbe breach of contract for tbe sale of land, tbe petition is not bad on demurrer because tbe description of tbe lands set out in tbe petition is different from tbe description contained in tbe written testimonial of tbe contract, where it is alleged that tbe tract of land described in tbe petition is tbe same as that described in tbe written testimonial.</p>

<p>1. Sunday — What Not Work of Necessity. — A work of necessity, within the exception of section 1821, Kentucky Statutes, is not an absolute, unavoidable, physical necessity, but rather an economi® and moral necessity. “The law regards that as necessary which, the common sense of the country, in its ordinary modes of doing; its business, regards as necessary,” or any labor, business or work, which is morally fit and proper to be done on the Sabbath, under the circumstances of the particular case, but a work which is merely convenient is not a work of necessity within the meaning of the exception in the statute.</p> <p>2. Sunday — Work That May Become Necessity. — A work which is not ordinarily a work of necessity may, under the stress of cir-r cumstances and the exigencies of an occasion, become a work of necessity.</p> <p>3. Sunday — Barbering on Sunday — Section 1321, Kentucky Statutes. —The barbering of a particular individual, by a barber, upon the Sabbath, under exceptional circumstances, may be a work of necessity within the meaning of the exception in section 1321, Kentucky Statutes, but the mere shaving, trimming the hair and performing for his patrons the regular and ordinary work of a barber upon the Sabbath is not a work of necessity, within the meaning of the exception, and is in violation of the statute relating to the performance of work and labor upon the Sabbath.</p>

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

<p>1. Statutes — Construction.—A statute should not be extended beyond the fair and reasonable meaning of its terms, because of some supposed policy of .the law or because the legislature did not use proper words to express its meaning.</p> <p>2. Statutes — Construction—Doctrine of Ejusdem Generis. — The meaning of a word used in a statute must be construed in connection with the words with which it is associated, and by the doctrine of ejusdem generis, where general words follow the enumeration of particular persons or things or particular classes of persons or things, the general words will be construed as meaning persons or things of like kind or class with those enumerated.</p> <p>3. Burglary — Explosives—Nitro-Glycerin—Section 1159, Kentucky Statutes. — Nitro-glycerin is not included in the meaning of section 1159, Kentucky Statutes, which makes it a felony for any person to “have or keep in his possession any tools, implements, or other things used by burglars for housebreaking, etc.,” hence an indictment charging one with having such explosive in his possession does not state a public offense under the statute.</p>

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

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

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

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

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

<p>Intoxicating Liquors — Evasion of Section 2570 Ky. Stats.— Under section 2570 Kentucky Statutes providing that no tricks or pretense shall be allowed to evade the operation of any local option law, evidence that the -defendant resided in Kentucky about three feet of the line between, that state and Tennessee, and that the prosecuting witness went to his house and called the defendant, where the latter gave the former a drink of whiskey, and then both of the parties walked over into the state of Tennessee about twelve feet, where the defendant obtained a quart of whiskey from a box and delivered it to the witness upon the payment of seventy-five cents, shows an evasion of the law within the section of the Statute, and justified the verdict of the jury finding the defendant guilty.</p>

<p>Appeal and Error — Affirmance by Equally Divided Court. — When the judges of the Court of Appeals are equally divided in opinion as to the affirmance or reversal of the judgment of the circuit court, it will be affirmed.</p>

<p>Intoxicating Liquors — Judicial Notice — Evidence.—Where the local option law has been put in force by a vote of the people of the county held under the general local option law, that fact must be shown in order to convict; but, where the sale of intoxicating liquors is forbidden by a special Act of the legislature applicable to the territory in question, the courts of the Commonwealth will take notice of the existence of such special Act and the territory to which it is applicable.</p>

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

<p>1. Criminal Law — Prosecution for Housebreaking — Evidence.—In a prosecution for tbe breaking into a blacksmith shop, where it appeared that the shop had been broken into at night and a sledge hammer stolen, and on the following night defendant was recognized as one of two men who were seen using the same hammer in an attempt to break into a store and who, when discovered, fled through a muddy alley, followed by the one who discovered them until they threw a,way the hammer and almost to their home; and where it also appeared that when arrested the same night his shoes were muddy, evidence held sufficient to require submission of the case to the jury.</p> <p>2. Criminal Law — Evidence—Trailing by Bloodhounds — Admission Of. — Testimony as to the trailing of the accused by bloodhounds may be permitted to go to the jury for what it is worth, as one of the circumstances tending to connect the defendant with the crime, when it is shown by someone having personal knowledge of the facts that the dog in question is of pure blood, is of a stock characterized by acut.eness of scent and power of discrimination, is itself possessed of these qualities and has been trained and tested in the tracking of human beings; and also that the circumstances surrounding • the laying of the dog on the trail and following it, were such that the dog was not likely to have been put upon the wrong trail or confused or obstructed in following the trail.</p> <p>3. Criminal Law — Evidence.—Mere general statements by a witness that the dogs used in trailing the defendant were bloodhounds, trained for trailing persons, and that one of the dogs' had been used for trailing all his life, were not sufficient, in the absence of personal knowledge on his part that they had been so trained and one of them so used, to so demonstrate the reliability of the dogs as to authorize the admission of testimony as to the trailing done by them.</p> <p>4. Criminal Law — Evidence—Former Conviction of Felony — How Shown. — In this jurisdiction the former conviction of a felony must be shown by the introduction in evidence of the indictment, verdict, judgment and sentence of the former trial, or certified copies thereof; and the admission by the trial court of the testimony of a circuit court clerk as to defendant’s former conviction of two felonies, supported only by his production of the indictments, which the record fails to show were either read or offered to be read to the jury, is prejudicial error.</p> <p>5. Criminal Law — Trial—Right of Accused to be Free From Shackles. —The manacling of a person when upon trial for a criminal of- ■ fense, whether in bringing him into court, while in the presence of the court or jury or at any stage of the trial, is very improper, and can be excused only on the grounds that it was necessary to prevent his escape, prevent injury to his own person or probable danger to the court, its officers or to bystanders from his violence, or to prevent some such misconduct on his part as would obstruct the work or business of the court.</p>

<p>Criminal Law — Partnership—Assumed Name — Business.—A partnership composed of father and son, conducting a mercantile business under the firm name of R. & Son, is not carrying on business under an assumed name within the meaning of section 199b, subsections 1 and 4, Kentucky Statutes.</p>

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

<p>1. Forcible Entry and Detainer — Writ of Forcible Entry — When Maintainable. — An action of forcible entry will not lie except in favor of a party wbo was in occupancy of the premises when the alleged forcible entry was made. Neither the right of possession nor constructive possession is sufficient.</p> <p>2. Forcible Entry and Detainer — Writ of Forcible Entry — When Maintainable. — A writ of forcible detainer cannot be maintained unless the relation of landlord and tenant exists in some form between the parties.</p> <p>3. Forcible Entry and Detainer — Evidence—Directed Verdict.— Where, in an a.ction of forcible entry and detainer, it appears that the plaintiff was not in occupancy of the premises when the alleged forcible entry was made and that the relation of landlord and tenant did not exist between him and the defendant, the trial court should direct a verdict in favor of the defendant.</p> <p>4. Forcible Entry and Detainer — Title.—Forcible entry and detainer is not an appropriate proceeding for trying title.</p>

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

<p>1. Life Estates — Taxation—Payment of Taxes by Life Tenant. — It is tbe duty of the life tenant to pay tbe taxes on tbe land as between him and the remainderman, and the life tenant who purchases the land at a tax sale cannot assert title against the remainderman by virtue Of the purchase.</p> <p>2. Life Estates — Taxation—Purchase at Tax Sale by Occupier of Land — Effect of. — Where the land was' occupied by the widow as a homestead, and her son-in-law, who lived with her on the land, purchased the land at a tax sale, his purchase will be treated as having been made for the benefit of the life tenant, and he cannot assert title to the land as against her or the remainderman, nor can he by a verbal agreement with the life tenant divest the remanderman of his interest in the land.</p> <p>3. Adverse Possession — Homestead.—A person occupying land as a homestead does not hold it adversely to the remainderman.</p>

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

<p>1. Railroads — Operation—Separate Coach Law. — A passenger train operated between two stations in this state and a station without the state is operated within the state, and subject to the provisions of section 795 of the Kentucky Statutes, known as the Separate Coach Law.</p> <p>■2. Railroads — Separate Coach Law. — It is a violation of this law to operate a passenger train within the state that is not equipped with separate coaches for white and colored passengers without regard to whether or not passengers of one of the races desire passage upon a particular train or trip.</p> <p>8. Railroads — Offenses in Operation — Separate Coach Law.- — -The failure to comply with the statute in the equipment of each passenger train so operated is a separate and continuous offense, but each trip of a particular train is not a separate offense.</p> <p>Railroads — Indictment—Failure to Comply With Statutes. — A conviction for a failure to comply with the statute with reference to a particular train is a bar to a subsequent conviction for a failure, prior to the finding of the indictment under which the conviction is had, to furnish the required equipment for the same train.</p>

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

<p>1. Wills — Parol Evidence. — Parol evidence cannot be introduced, either to take from, add to, or explain the contents of a will.</p> <p>2. Wills — Construction—Intention.—A wiH cannot be construed by ;a mere conjecture as to the intention of the testator; it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind, or which is manifested by some other paper not a part of the will, or by previous declarations.</p> <p>3. Wills- — Intention—Implication.—In order to carry out the intention of a testator and prevent the will from failing of effect, a devise or bequest may be implied, although it has not been formally expressed in the will, unless the implication violates . public policy, or some settled rule of positive law.</p> <p>■4. Wills — Intention—Implication.—The presumption is very strong against a testator having intended a devise or bequest not set forth in his will; and, in order that the devise or bequest may be effectual, the implication must be a necessary one, that is, the probability of an intention to make the devise or bequest implied .must appear from the will to he so strong that a contrary intention cannot reasonably be supposed to have existed in the testator’s mind.</p> <p>5. Wills — Gift—Implication.—A gift by implication will not be inferred from mere silence; it must be founded on expressions in the will.</p> <p>6. Wills — Dying Without Issue — Construction.—Tbe words “die without issue” mean “die without issue in the lifetime of the testator,” unless some other period is clearly fixed by the will.</p>

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

<p>1. Pleading — Set-ofC—When Available. — Where plaintiff sued defendants to enjoin them from maintaining a ditch on their land and for dam'ages growing out of its maintenance, a claim by defendants that plaintiff wrongfully maintained an embankment on his land and thereby injured defendant’s land is not available as a set-off, since such cause of action does not arise upon a contract, judgment or award in favor of the defendants.</p> <p>2. Pleading — Counter-claim—When Available. — Where plaintiff sued defendants to enjoin them from maintaining a ditch on their land and for damages growing out of its maintenance, a claim by defendants that plaintiff wrongfully maintained an embankment on his land and thereby injured defendants’ land is not available as ¡a counter-claim, since such a cause of action does not arise out of the transaction stated in plaintiff’s petition as the foundation for his claim, and is not in any way connected with the subject of the action.</p> <p>3. Pleading — Set-off—Counter-claim—Improper Pleading — Practice.—■ The improper pleading of a set-off or counter-claim may be raised by a general demurrer or a motion to strike.</p> <p>4. Pleading — Set-off—Counter-claim—Improper Pleading — Objection—• Waiver. — The objection that a cause of action pleaded by defendants is not the proper subject for a set-off or counter-claim is not waived by the filing of a demurrer after issue is joined prior to the submission of the case, but renders the plaintiff liable for all .costs growing out of his failure to file the demurrer in proper time.</p>

<p>1. Judicial Sales — Inadequacy of Purchase Price, — Evidence on exceptions to a judicial sale examined, and held insufficient to show that the purchase price was grossly inadequate.</p> <p>2. Judicial Sales — Vested Estate Jointly Owned by Doweress and Heirs — When May Be Sold — Section 490 of the Civil Code. — Where the widow has dower in indivisible property and the remainder is owned by one child, a sale cannot be had under section 490 of the code upon the petition of either of the parties; but if the estate is owned by the widow as doweress and the remainder by two or more heirs, a sale may be ordered under this section.</p> <p>3. Judical Sales — Joint Estates — Provision for Doweress — Failure to Make — Effect.—^Failure of the judgment of sale to provide a reasonable compensation for the widow’s dower in land ordered to be sold pursuant to section 490 and subsection 2, section 495 of the Civil Code, will not be ground for setting aside the sale, since the court may thereafter enter such orders as are necessary to protect the widow’s rights.</p> <p>4. Pleading — When Too Late. — Where the land of the decedent has been sold and the sale confirmed, an answer tendered at a subsequent term by the widow of the decedent, setting up a homestead in the land, is properly refused where it is not sufficient to constitute a proper application for a new trial under section 518 of the civil code.</p>

<p>1. Indictment and Information — Carrying on 'Business Under Assumed Name. — An act of tlie legislature which makes it unlawful for any person to -carry on business in this State “under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business,” without filing a -certificate thereof in the clerk’s office, does not violate section 51 of the constitution, by reason of the fact that it is entitled, “An act regulating the carrying on of business under an assumed or fictitious name.” AH of the provisions of the act relate to the same subject, are naturally connected, and are not foreign to the subject expressed in the title.</p> <p>2. Indictment and Information — Partnership—Assumed Name — Fictitious Name — Business.—The act of 1906 (Ky. Stats,, Sec. 199b), entitled “An act regulating the carrying on of business under assumed or fictitious names,” is' not to be restricted in its operation to “assumed or fictitious names,” but applies likewise to that character of .partnerships doing business under a “designation,” “name” or “style,” whenever those words- are used to describe the name of any business that is not carried on in the real name of at least one of the parties interested in such business.</p> <p>3. Indictment and Information — Partnership—Assumed Name — Business. — Subsection 4 of the act of 1906 (Ky. Stats., Sec. 199b), which permits the lawful use of a partnership name or designation, provided that such partnership name or designation shall include the true real name of at least one of the persons transacting the business, was not violated when George Bassett and Howell Bassett did a partnership business under the name and style of the "Bassett Hardwood Manufacturing Company.”</p>

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

<p>1. Compromise and Settlement — Consideration.—A controversy as to the title to property, in order to constitute a consideration for a compromise or a family settlement must be a real one, and the question must be one about which well informed lawyers and judges may easily differ and about which the parties themselves do differ.</p> <p>2. Trusts — Enforceable Trust. — An enforceable trust is not established by an agreement that does not designate a cestui que trust nor indicate any particular charity to be benefited.</p> <p>3. Wills — Construction.—The testator devised the residuum of his estate to his nieces and nephews without naming them, excepting two of the class, and then provided for the payment of the fund so devised in a manner inapplicable to the class; held that in arriving at the intention of the testator that the designation by him of the particular class as the beneficiaries of the fund must control rather tjian the manner providing for the payment of the fund to them.</p>

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

<p>1. Criminal Law — Accomplices—Accessory.—An accomplice in the commission of a crime may be a principal, an accessory before the fact, or an aider and abettor, but an accessory after the fact is not an accomplice within the meaning of section 241, criminal code.</p> <p>2. Criminal Law — Accessory.—Mere knowledge that a crime has been committed does not constitute one an accessory after the fact, because he fails to reveal his information — he must harbor a felon or render aid and assistance to him in escaping the consequences of his crime before one becomes an accessory after the fact.</p> <p>3. Criminal Law — Accomplices.—Mere knowledge that a crime is intended to be committed, in the absence of any duty to prevent it, and a failure to perform the duty, does not make one an accomplice. A person must participate in a crime before he can be an accomplice, or when a duty rests upon him to prevent a crime and having knowledge of its intended commission, fails to prevent it, when he could do so.</p> <p>4. Criminal Law — Evidence—Maps—Photographs.—Maps, models, sketches, pictures and photographs are not admissible in evidence in proof or illustration of facts, until proof is made that they are true representations of the objects, which they purport to represent. Before pictures or photographs are admissible in evidence it must appear that they are illustrative of some fact and substantially necessary for the purpose.</p> <p>5. Criminal Law — Appeal and Error. — The Court of Appeals will not reverse a judgment because the verdict of the jury upon which it is based was made upon contradictory evidence, where there is no prejudicial error of law appearing upon the record. The verdict of the jury will be disturbed, only, when it appears to be palpably against the weight of the evidence.</p>

<p>1. Carriers — Negligent Operation — Submission to Jury. — If a passenger on a train is notified that the next stop will be his station and knows from his knowledge of the country that the train is approaching his station, and the train lessened its speed, whereby he was led to believe that it was preparing to stop at the station, as it should have done, and he goes upon the platform of the car with the purpose of alighting, and after reaching there and just before the train reached the station, its speed was suddenly accelerated to such an extent that, as it went around a curve a short distance beyond the station, the jerk or wrench caused him to be thrown therefrom, the case was properly submitted to the jury on the issue of negligent operation.</p> <p>2. Negligence — Submission to Jury. — To authorize the court to hold as a matter of law that one has been guilty of negligence, the inference to be drawn from the evidence must be certain and incontrovertible; otherwise the issue must be submitted to the jury.</p> <p>3. Carriers — Pasengers—Negligence.—Where a passenger leaves a railroad coach and goes upon the platform with the purpose of alighting therefrom as it approaches his station, it must generally be left to the jury to determine under proper instructions whether from all the facts in evidence he was or not guilty of contributory negligence.</p> <p>4. Pleading — Contributory Negligence. — Where there are two paragraphs in an answer pleading contributory negligence, one specifying the contributory negligence relied upon, and the other containing a general plea of contributory negligence, the court properly struck out one of the paragraphs. Master and Servant — Assumed Risk. — The defense of assumed risk ordinarily presupposes the relation of master and servant.</p> <p>6. Carriers — Injury to Passenger — Proximate Cause — Evidence.—■ Under the evidence neither the failure of the train to stop at the station nor the high rate of speed at which it passed the station, singly or combined, was the proximate cause of his being thrown from the platform; the sole and only cause under the evidence was the suddenly accelerated speed of the train at a time and place , when the plaintiff had a right to expect the train to slacken its speed and stop.</p> <p>7. Carriers — Instructions.—An instruction which authorized a recovery for negligent acts which were neither the direct nor proximate cause of the plaintiff’s injury was erroneous.</p>

<p>1. Railroads — Personal Injuries — Crossing Accident — Instructions.— An instruction in a crossing accident case examined and considered in connection with an instruction given on motion of the defendants, and held not subject to the criticism that it excluded from the jury the sufficiency of the warning given by an electric crossing bell.</p> <p>2. Railroads — Measure of Damages — Instruction.—An instruction on the measure of damages in a crossing accident case examined, and held not to assume that the plaintiff endured mental and physical suffering, or that his power to earn money was impaired, but that the instruction properly submitted these, questions to the jury.</p> <p>3. Damages — Assessment—Pleading—Instruction.—A petition in an action for personal' injuries which alleges that plaintiff was permanently injured is all that is necessary to support an instruction authorizing an award of damages for the permanent impairment of his earning capacity.</p> <p>4. Damages — Evidence—Impairment of Earning Capacity. — Where the injury is permanent, failure to show one’s earning capacity or the impairment thereof is not fatal to a recovery.</p> <p>5. Damages — Personal Injuries — Instruction.—Where, in an action for damages for personal injuries, the jury has been told that'if the plaintiff failed to exercise ordinary care for his own safety they should find for the defendants, it was not prejudicial error to refuse an offered instruction telling the jury to find for the defendants if plaintiff did rely exclusively upon the employes of the railroad company without using ordinary care for his own safety, since the offered instruction required the jury to believe in the existence of a fact not essential to a finding in defendants’ favor.</p> <p>6. Railroads — Crossing Accident — Instruction.—An offered instruction in a crossing accident case, telling the jury that it was the duty of the plaintiff “to exercise ordinary care and be on the lookout to discover whether or not the train was approaching,” is properly refused, since the duty imposed on the traveler is merely to exercise ordinary care to discover the approach of the train and keep out of its way.</p> <p>•7. Damages — Personal Injuries — Instruction.—Though it is the better practice to present the defense of contributory negligence in one instruction, the defendants cannot complain of the court’s failure to give in a corrected form an offered instruction covering the entire question of contributory negligence where such defense is clearly covered by three other instructions given on motion of defendants.</p>

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

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

<p>1. Contribution — Torts—Joint Tort Feasors — Indemnity.—The general rule is that where an accident is caused by the contributing negligence of two or more persons, and the injured party recovers damages against one of them, the tort feasor against whom the recovery is had cannot look to the other tort feasors for indemnity or ■ contribution. But there are exceptions to this general rule.</p> <p>2. Contribution — Torts—Joint Tort Feasors — Indemnity.—“S” was wrongfully forced to leave a moving train, and when he was put off his foot was caught in an unblocked frog under the control of a bridge company. He sued the bridge company and recovered a judgment. In a suit by the bridge company against the 1 railroad company for indemnity, held that as the accident was ; caused by the co-operating, wrongful acts of both companies, the bridge company could not have indemnity against the railroad company.</p> <p>3. Negligence — Proximate Cause.- — Two agencies acting entirely independently of each other may jointly and concurrently be the proximate cause of the injury when it would not have happened except for the concurrence at the same time and place of the two negligent acts.</p>

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

<p>1. Infants — Juvenile Delinquents. — Under section 331e of tbe Kentucky Statutes the county courts have exclusive jurisdiction of the disposition that shall be made of a male child under seventeen years of age who is charged with or arrested for a violation of the laws of the State.</p> <p>2. Infants — Trial—Jurisdiction of Courts. — The circuit courts of the state have no jurisdiction to indict or try a boy under seventeen years of age for a violation of the laws of the state unless he has been transferred to the circuit court by order of the county court.</p> <p>3. Infants — Trial and Conviction — Jurisdiction.—Although, a boy under seventeen years of age did not make any objection in the circuit court to the proceedings under which he was tried and convicted, he could raise in this court for the first time the question of the want of jurisdiction of the circuit court.</p> <p>4. Criminal Law — Appeal and Error — Judgment.—In a direct attack of a judgment by appeal, especially if the trial court is one of limited and special jurisdiction, the facts necessary to confer jurisdiction upon the trial court must affirmatively appear from the record on appeal, and such facts will not be presumed to have been shown in favor of the jurisdiction of the trial court.</p>

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

<p>Petition by Appellant for a Eehearing.</p>

<p>Public Lands — Collateral Attack of Patent. — An entry and survey, not carried into grant, may be. collaterally attacked when offered, under section 4704, Kentucky Statutes, to invalidate a patent issued by the Commonwealth..</p>

<p>1. Burglary — Housebreaking—Nature and Elements of Offense. — ■ There must be a “breaking” to constitute the crime of housebreaking -with intent to steal, denounced by section 1164 of the Kentucky Statutes; but any physical force, however slight, by which the obstruction to entering is removed, constitutes a “breaking.”</p> <p>2. Burglary — Breaking and Entry. — Pushing open a closed door which was not fastened, is a breaking within the meaning of the statute, and is sufficient to convict upon the charge of housebreaking, where the other elements necessary to the crime exist.</p>

<p>1. Fraudulent Conveyances — Evidence—Sufficiency.—In an action involving the validity of a conveyance made by a father to his 'children through their grandfather as intermediary, evidence examined and held sufficient to show that the ' conveyance was without consideration and was made with a fraudulent intent to defeat the grantor’s creditors. . . « ,</p> <p>2. Fraudulent Conveyances — Rights of Creditor — Execution.—A debtor having conveyed away his land for the purpose of defrauding his creditors, an execution creditor may disregard the deed, and, without waiting to set it aside, may levy his execution upon and sell the land for his debt; but if the conveyance was made by another and the debtor never had title to the property and the conveyance is only fraudulent to the extent of a small portion of the purchase price paid by the debtor, the land cannot be sold under the creditor’s execution. In such a case, the land can only be subjected to the creditor’s claim in a proceeding to have the conveyance declared to be fraudulent.</p> <p>3. Fraudulent Conveyances — Homestead.—A conveyance of a homestead is not fraudulent, since it is not subject to the grantor’s debts.</p> <p>4. Homestead — Occupancy.—One living with his father upon land in which he has no interest is not entitled to a homestead in a tract of land which he owned and cultivated but never occupied.</p>

<p>1. New Trial — What Petition for Should State. — In a petition for a new trial under section 518 of the civil code, it is necessary to set out the issues and proceedings in the suit in which the judgment sought to be vacated was rendered, and regularly to make the record in that suit a part of the petition, so that the court may be able to determine whether the facts plead in the petition for a new trial constitute a valid defense to the recovery of the judgment sought to be vacated.</p> <p>2. New Trial — Facts Which Petition For Must State. — The petition for a new trial under section 518, subsection 7, of the civil code, must state facts, which show that the plaintiff was prevented from appearing or defending the suit by some unavoidable casualty or misfortune, which ordinary prudence could not guard against.</p>

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

<p>1. Adverse Possession — Requisites of. — To satisfy tbe requirements . of tbe doctrine of adverse possession tbe bolding must be adverse, open, actual and continuous, and to a well-marked boundary.</p> <p>2. Adverse Possession — Continuity of Possession. — Continuity of possession is an essential link in tbe perfection of a title by adverse possession, but tbis does not mean that in all cases and with respect to all species of property it is indispensable that tbe adverse claimant should be at all times in the adverse possession of the property either by residence or enclosure or cultivation; for it is allowable in determining the sufficiency of the continuity of the possession to take into consideration the nature, character and location of the property and the uses to which it has been or may be. put.</p> <p>S. Adverse Possession — Continuity of Possession. — But with respect to all classes of property the continuity of possession and the use to which the property is put must be of such a nature as to put the real proprietor upon notice that a hostile claim is asserted.</p> <p>4. Adverse Possession — Continuity of Possession. — Disconnected periods of occupancy or occasional entries will not be sufficient to answer the requirements of continuity, and if the continuity be broken by voluntary abandonment, or by the surrender of the premises to another,, or by any other act that would indicate that the adverse holder was not asserting claim to the property, it will be fatal to his case.</p> <p>5. Adverse Possession — Continuity of Possession — Overflow Land.— Where land is subject to periodical overflow of such nature and extent as to make it impractical to keep the land continuously inclosed or in cultivation and to prevent it from being occupied by a residence or outbuildings, the failure to have it continuously enclosed or cultivated or inhabited will not break the continuity of possession if the possession is as continuous as natural conditions will permit.</p>

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

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

<p>1. Master and Servant — Negligence—Proximate Cause. — Negligence of the master, to enable the servant to recover, must be the proximate cause of the injury sued for, and where the negligence proven consists of defects, either in the place, or the tools, appliances or equipments, but the plaintiff, at the time of the injury, was not attempting to use any of such tools, appliances or equipments, nor was he injured because of the unsafe condition of the place; his injury is not the proximate result of the alleged negligence, and he is not entitled to recover.</p> <p>2. Master and Servant — Appliances—Assumption of Risk. — Where a servant attempts to use defective appliances, made or not made for the purpose of his use in performing his work, and he has knowledge of such defective or dangerous condition, or could have had such knowledge by the exercise of ordinary care, and fully appreciates the danger of its use, he assumes the risk, and, if injured, the master is not liable.</p> <p>3. Master and Servant — Assumption of Risk. — If the servant attempts to board a freight car by mounting it from the end while it is approaching him at a slow rate of speed, and is injured in an effort to put his foot through the space between a rod fastened to the end sill of the car, and is injured because of the rod being bent, which rod was1 not so attached for the purpose of enabling one to get upon the car, but for a totally different purpose,, and the servant knew this, and also knew of its defective condition, and with such knowledge attempted to use it, he assumed the risk and the master is not liable for any resulting injuries to him.</p> <p>4. Master and Servant — -Assumed Risk.- — -The doctrine of assumed risk is available to an interstate common carrier as a defense to an action for alleged negligent injuries to its servant in all cases except where the negligence of the carrier consists in a failure to observe some Federal statute enacted for the benefit and protection of the servant.</p>

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

<p>1. Obscenity — Obscene or Indecent Publication. — The test which determines the obscenity or indecency of a publication is the tendency of the matter to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands such a publication may fall.</p> <p>2. Obscenity — Obscene or Ineedent Publication. — The question whether a publication is obscene or indecent does not depend upon its being true or false.</p> <p>3. Criminal Law — Findings—Appeal and Error. — The finding in a prosecution tried by the court will be given the same weight as is attached to the verdict of a jury; and in such a case the judgment must be 'palpably against the evidence before it can be disturbed.</p>

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

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

<p>1. Religious Societies — Charities.—An unincorporated religious or charitable organization, such as is described in chapter 17, Kentucky Statutes, which has never organized or elected trustees under that chapter, but which holds its property under the provisions of the original grant or devise, is not acting under the terms of that statute.</p> <p>.2. Religious Societies — Conveyances by Members — Ratification.—A conveyance by the trustees of an unincorporated religious or charitable institution which has not organized under the statute, after unanimous action by the members of the organization authorizing the conveyance and which is subsequently unanimously ratified by the members, is valid.</p>

<p>1. Street Railroads — Injury to Pedestrian — Question for Jury — Evidence. — in a pedestrian’s action for personal injuries against a street railroad, evidence examined and held sufficient to justify the submission to the jury of the questions of excessive speed and of the failure to keep a lookout and give a reasonable -warning of the approach of the car.</p> <p>2. Negligence — Personal Injuries — Instruction.—The qualification of a contributory negligence instruction in the following language, “Unless you believe further from the evidence that after said motorman saw or by the exorcise of ordinary care could have seen the peril of the plaintiff 'if he so saw or could have seen such peril, he failed to use ordinary care to prevent injuring him and by reason of such failure the plaintiff was injured, you will in that event find for the plaintiff,” examined, and held not prejudicial because of the failure to use the words “in time to have prevented the injury by the exercise of ordinary care."</p> <p>S. Street Railroads — Operation of Cars — -Care Required. — To , excuse a street railroad company upon the ground that the person injured came on the track so close to the car that the motorman, by the exercise of ordinary care, could not have stopped it in time to prevent the injury, the car must have been operated at a ■reasonable rate of speed.</p>

<p>1. Schools and School Districts — Consolidated School Districts — Levy; of Tax — In Whom Vested. — Section 4399,. subsection 8, Kentucky Statutes, which empowers the county board of education to lay off a boundary to create a consolidated school district and to submit to the voters of the district the question of levying a tax for the purpose of erecting a school building therein, also by implication imposes upon that board the duty of levying such tax when voted.</p> <p>2. Schools and School Districts — Creation of Consolidated Districts; —Section 4426a, subsection 17, Kentucky Statutes, which vests in the county hoard of education the power to consolidate “any two or more contiguous school subdistricts,” necessarily confers upon such board the power to consolidate parts of subdistricts.</p> <p>3. Appeal and Error — Review—Presumption as to Notice Not in Record. — Where the notice given of the time and place for holding an election for voting a tax to build a schoolhouse in a consolidated school district does not appear in the record, this court will not assume that it was in any particular defective or insufficient, where its absence from the record is not complained of by counsel.</p>

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

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

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

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

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

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

<p>1. Master and Servant — Risks Servant Assumes. — A foreman assumes tbe risk of conditions that he directs to be brought about, or that he knows, or in view of surrounding circumstances may be présumed to know, will be brought about, as well as risks arising from conditions that come up from time to time, when he is in charge of the work and directing what shall be done. He also assumes the risk of natural or inherent defects or dangers in the work that are produced by its present or changing condition.</p> <p>2. Master and Servant — Risks Servant Does Not Assume. — When the master, in any kind of work, whether it be tearing down or building up, creates by his orders a new and unexpected danger, the existence of which is unknown to some of the servants engaged in the work, he is under a duty to give warning to such servants who are likely to be exposed to the danger and who are not apprised of it.</p> <p>3. Master and Servant — Facts Stated. — The foreman of a bridge crew directed his men to take the plank off of an overhead wagon bridge that had been partially knocked down by a derailed train beneath it. While his men were engaged in this work a superior officer directed the men to saw one of the stringers in the bridge, and the men partially sawed this stringer and left it in that condition. When the foreman, who did not know of the orders given to saw this stringer or that it had been sawed, stepped on the stringer for the purpose of walking on it, it broke and fell, killing him. Held, that the master was liable.</p>

<p>1. Appeal and Error — Finding of Chancellor — Evidence—Sufficiency. —In an action by plaintiffs who were in litigation with an adjoining land owner respecting the true location of the dividing line, to recover of the party who had purchased plaintiffs’ timber and also the timber on the land in dispute from the adjoining land owner the value of .certain trees cut and removed by him from the land in dispute, which was afterwards adjudged to be the property of plaintiffs, together with damages growing out of its removal, evidence examined and held to sustain a finding of the chancellor that plaintiffs represented to the purchaser that the timber on the disputed land was included in the sale which they made to him, and that they assured him that they would not claim any such timber from him and his associates, even if they were successful in their litigation with the adjoining land owner, and that the purchaser purchased and paid for plaintiffs’ timber, believing in good faith that he was getting all of their title to the land in dispute, and that he would not have made the purchase and paid for the lumber if he had not been led by plaintiffs to believe and acted upon the belief that he was getting a good title to all the timber described in the deed from plaintiffs to him and in the deed from the adjoining land owner to him.</p> <p>2. Estoppel. — A vendor of timber, who is in litigation with an adjoining land owner respecting the true location of their dividing line, is estopped to claim of the purchaser of his timber and of the timber of the adjoining land owner the value of timber cut and removed by the purchaser from the land in dispute, where, by his conduct and representations, he induces the purchaser to believe and to act on the belief that he is getting title to the disputed timber, both from him and the adjoining land owner, and that he will not claim any of the timber from the purchaser even if successful in the litigation with the adjoining land owner.</p> <p>3. Trespass — Adjoining Land Owner — Sale of Timber by — Liability. —One who neither cuts nor removes the timber from, nor commits any trespass upon, the land of an adjoining land owner, but merely sells the timber thereon to another, who alone cuts and removes it, and against whom the adjoining land owner is estopped to claim damages, is not liable to the adjoining land owner in an action of trespass for the value of the timber so removed and for damages growing out of its removal.</p>

<p>Attorney and Client — Liens—Remedies of Attorney. — Liens al: lowed attorneys under section 107 of the Kentucky Statutes upon lands recovered by them are subject to the provisions of section 2358a of the statutes requiring lis pendens notice to be filed in the county court clerk’s office as against subsequent purchasers of the land without notice.</p>

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

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

<p>1. Fraudulent Conveyances — Husband and Wife. — A sale by tbe bus-band of bis real estate to his wife for valuable consideration is not fraudulent as to creditors.</p> <p>2. Fraudulent Conveyances — Evidence.—In an action involving tbe validity of tbe transfer of real estate from tbe husband to bis wife, evidence examined and held to show no facts from wbicb it could be reasonably inferred that the conveyance was made by tbe busband for the purpose of cheating his creditors, or that bis wife knew of such fraudulent purpose.</p> <p>3. Execution — Sales Under — Notice of Prior Equity. — If, before the sale of land upon which an execution has been levied, the execution creditor has notice of an older equity in favor of another, evidenced by bond or unrecorded deed, the older equity will prevail.</p>

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

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

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

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

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

<p>1. Removal of Causes — Non-Residents—Diverse Citizenship. — Where an action is properly brought in a State court against a non-resident defendant and a resident defendant, sued jointly, the fact that the trial court may erroneously, at the conclusion of the evidence, direct a verdict in favor of the resident defendant, does not authorize a removal of the action to the federal court as to the nonresident defendant, on the ground of diverse citizenship. In such á case the resident defendant will be treated as a party to the suit until the question has been terminated by the State appellate court.</p> <p>2. Removal of Causes — Law of Case — Rule in Federal Cases. — The rule that when the law of a case has once been declared by the State supreme court it is the law of that case in all subsequent proceedings, does not apply to the decision of a federal question by the supreme court of a State, since upon a question of that character the Supreme Court of the United States is the final arbiter.</p> <p>3. Removal of Causes — -Rule of Supreme Court Controls. — Upon questions respecting the removal of actions from State courts to federal courts, the Supreme Court of the United States is the final arbiter; it is the rule as announced by that tribunal that controls in such eases; and, if the opinion of the supreme court of a State upon a question of removal to the federal court is in conflict with the decisions of the Supreme Court of the United States, it becomes the duty of the State trial court, as well as the State supreme court, to follow the ruling announced by the Supreme Court of the United States.</p>

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

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

<p>1. Appeal and Error — Final Order.- — A judgment upon tbe merits, which, is a final determination of the case and completely disposes of the action, is a final one, from which an appeal will lie.</p> <p>2. New Trial — Setting Aside Judgment. — After the term at which a final judgment is rendered, the trial court has no power to set it aside, except in the manner prescribed by sections 344, 519 and 520, of the civil code, and for the causes mentioned in sections 340 and 518 of the civil code.</p> <p>3. Appeal and Error — Costs.—An appeal will not lie from a judgment for costs, only.</p>

<p>1. Schools and. School Districts — Taxes—Cities of Fourth Class.— The meaning of section 3595, Kentucky Statutes, requiring the hoard of education of cities of the fourth class to make within thirty days of the levy of a tax for school purposes a report to its board of council giving an estimate of the expense of maintaining the common schools for the current fiscal year and “the estimated amount to be received from the common school fund of the State, interest on bonds, endowments et cetera,” is that the board of education shall report all funds, whether endowments, interest on bonds, cash on hand or other thing available, on hand or derivable from sources other than the levy to be made, that may be applied to the maintenance of the schools for the year covered by the report; and the board of education is not authorized to omit from its report money it may have in its treasury, though that money be a balance such as it had been accustomed to carry over from year to year.</p> <p>2. Schools and School Districts — Taxes—Cities of Fourth Class.— Where, in an action by the board of education of a city of the' fourth class against its board of council to compel an additional tax levy for common school purposes, it is made to appear that the board of education has on hand a cash balance, after paying all expenses of maintaining the schools of the city for the previous year, and such cash balance, together with the amount to be received from the common school fund of the State and the amount that will be realized from a tax levy already made by the board of council, is substantially equal, in the aggregate, to the estimated cost of maintaining the city’s common schools for the current fiscal year, as reported by the board of education to the board of common council, mandamus will not lie to compel the additional tax levy demanded by the former of the latter.</p> <p>3. Schools and School Districts — Taxes—Duty of Board of Education. —The fact that money is not available from the tax levy until November, and schools begin in September, does not authorize the board of education of a city of the fourth class to carry over each year a balance from the previous year to pay teachers, etc., for the months of September and October, or to omit this balance from its report to the board of council of available resources.</p> <p>4. Schools and School Districts — Taxation—Board of Education. — < Where the amount to be realized by a levy for school purposes falls only $9.83 short of the amount necessary, according to the estimate of the board of education, to meet, with other funds it had available, the expenses of maintaining the schools for the current year, no additional levy to malte up such a small difference will be authorized, especially since the estimate of expenses was only approximate.</p>

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

<p>1. Schools and School Districts — Vaccination of Children. — The legislature may, by express provision, in the exercise of its .police power, require or empower a local or administrative authority to require vaccination of children, as a condition of their being admitted to the public schools, although smallpox be not prevalent, or its outbreak be not apprehended.</p> <p>2. Health — Smallpox—Prevention From Spreading. — When there is a reasonable apprehension of the outbreak of a communicable disease, such as smallpox, health boards have authority to take such action as may be necessary in order to stamp out the disease and prevent its spreading.</p>

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

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

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

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

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

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

<p>Master and Servant — Telephone Lineman — Safe Place to Work.— Where an experienced telephone lineman was injured by the falling of a telephone pole on which he was working, that had been put in the ground only about one-third of the distance it should have been, he was entitled to recover damages from the company, it appearing that he applied the usual tests made by telephone men for the purpose of ascertaining' the safety of the pole, and had no connection with putting the pole in the ground and did not know that it- had not been properly set.</p>

<p>Appeal and Error — Damages—When Verdict Should Be Set Aside as Excessive. — The verdict of a jury in a personal injury case should not be set aside as excessive unless it appears from the evidence that the jury in assessing the damage was influenced by passion or prejudice.</p>

<p>1. Equity — Matters Triable in Equity. — Where a case involves complicated accounts so as to render it impracticable for a jury to intelligently try tbe case, it should be tried in equity by tbe chancellor, and it is not error in such cases to refuse, upon motion to transfer tbe issues to tbe ordinary docket, for a jury trial.</p> <p>2. Equity — Motion for Issue Out of Chancery — Appeal and Error. —Where a case is brought in equity, and the issues are' made up, and the proof taken by depositions, a motion made for. an issue out of chancery, when the case was ready for trial, and after the proof had been so taken, is not seasonably made, and the action of the court in overruling it will not authorize a reversal of the judgment.</p>

<p>1. Deeds — Failure to Fulfill Condition Subsequent — Action by Heir to Set Aside. — The right of a grantor to maintain a suit in equity to set aside a deed, because of the failure of the grantee to fulfill a condition subsequent, upon 'which the deed rests, to furnish support to the grantor during life, as a rule descends to the heir, but, if the grantor does not provide for a reversion, forfeiture or right of re-entry for failure of the condition subsequent, but only reserves a remedy for the failure, which is personal to himself, and during life elects not to exercise the remedy; after his death, the heir can not maintain a suit to set aside the deed, where the deed was not procured by fraud or duress, and the grantor was mentally capable of contracting.</p> <p>2. Deeds — Condition Subsequent. — Where a deed vests title in the grantee upon its delivery, and is conditioned upon the grantee furnishing support for the grantor during his life, the condition is a continuing one, which can not be fulfilled until the death of the grantor, and is a subsequent condition.</p> <p>S. Deeds — Action by Heirs to Set Aside Deed. — The right of the grantor to maintain a suit, in equity, to set aside a deed, because of fraud or duress in the procurement'of its execution, or want of mental capacity of the grantor to contract, descends to the heir, for the reason, that the fraud, duress or want of capacity to contract, being present, the title of the grantor never passes to the grantee, and descends to the heirs from the grantor.</p>

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

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

<p>Appeal from Anderson Circnit Conrt.</p>

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

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

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

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

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

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

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

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

<p>1. Appeal and Error- — Judgment—Alteration of Judgment — Pinal Or- • der. — A judgment of the circuit court which, finally adjudges the rights and interests of all parties in' a particular fund is a final judgment, from which an appeal can be taken, and it cannot be vacated or-altered by the court rendering it after the term at which it is rendered except as- provided by the code.</p> <p>2. Appeal and Error — Judgment.—Such a judgment is a bar to an adverse contention in another suit by parties to the first suit, and the court cannot in the subsequent action avoid its terms either directly or indirectly. ■ ■</p>

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

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