Volume 172 — Kentucky Reports

<p>1. Executors and Administrators — Settlement of Estate — Allowance for Services. — Where an estate, after it had been reduced to money, amounted to $15,075.49, and where the debtors of the estate were numerous, and lived in different counties and different states, and required a great deal of time and tact to insure success, and the administrator succeeded in collecting all the assets and disbursing them, without litigation or any act to cause a loss; or expense to the estate, the sum of $753.77 was not an excessive allowance for his services.</p> <p>2. Executors and Administrators — Allowance for Services. — The county court should not allow an administrator anything for extraordinary services, except upon proof and after notice to the interested parties; and where the administrator does not exhibit a statement showing his expenses and extraordinary services, his claim for same should not be allowed.</p> <p>3. Executors and Administrators — Employment of Counsel — Allowance for Fees. — If it is necessary for an administrator to employ counsel to advise him as to his duties and to assist him in discharging them, he is authorized to do so, and reasonable fees paid by him for such services should be allowed to him in the settlement of the estate.</p> <p>4. Executors and Administrators — Services Rendered an Estate. — The fees paid by an administrator to an attorney for assistance in the administration of the estate must be reasonable, taking into consideration the character of the services rendered, the time employed, the size of the estate, and the extent of the litigation.</p> <p>6. Executors and Administrators — Claims Against For Board and Nursing — Contract for Must be Shown. — The statute, 2178, Kentucky Statutes, destroys any implication to pay for board and lodging furnished by ,a person, other than a tavern keeper or keeper of a house of private entertainment, from the mere fact that it is furnished and accepted, but a contract must be shown to pay for such entertainment before a basis is laid for a recovery.</p> <p>6. Executors and Administrators — Claim for Board and Lodging. — If each of the parties contemplated, that the person receiving board and lodging would pay therefor, it is sufficient to raise a promise to’pay whatever it is reasonably worth.</p> <p>7. Executors and Administrators — Discretion of Courts in Matter of Costs. — The courts have a judicial discretion in regard to costs in actions to settle and distribute the estate of deceased persons, to settle partnerships, and to settle and enforce trusts.</p>

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

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

<p>1. Cancellation, of Instruments — Evidence.-—To authorize the cancellation of a written contract upon the ground of fraud or mistake the evidence must be clear and convincing.</p> <p>2. Contracts — Repugnant Clauses — Construction.—Apparently repugnant clauses in a written contract must be reconciled if it can be done by any reasonable construction.</p>

<p>1. Appeal and Error — Jurisdiction—Dismissal.—Where the amount involved was $250.00, the circuit court was without jurisdiction to grant an appeal to the Court of Appeals, and the appeal will be dismissed.</p> <p>2. Highways — Automobiles—Care Required in Use of Highway— Duty of Chauffeur. — Under section 10 of chapter 81 of the acts of 1910 regulating the use and speed of motor vehicles, whenever it appeared that a horse -ridden by a man on a highway had become frightened by the approach of an automobile, it was the duty of the person driving the automobile to cause it to -come to a full stop until the horse had passed.</p> <p>3. Highways — Regulation of Speed of Automobile — Collision—Damages for Injury. — It is the duty of the driver of an automobile not to run it upon a highway at a greater rate of speed than that permitted by the statute; and if, while running his automobile at a speed greater than that allowed by the statute, his automobile should collide with the automobile of another person, he is liable for any damages so inflicted, unless it should further appear that the unlawful rate of speed was not the proximate cause. of the collision.</p> <p>4. Negligence — Punitive Damages. — It is not every case of gross negligence that warrants the infliction of punitive damages; but, where the negligence manifests a wanton disregard of the lives or safety of others, or is wilful or malicious, punitive damages may be recovered.</p> <p>6. Appeal and Error — Failure to Index Record — Fees.—Where the clerk who made the record failed to make an index showing the name of each witness and the page on which his testimony begins, as is required by sub-section 6 of rule 5 of court, the record will be condemned and the clerk prohibited from collecting his fees therefor.</p>

<p>Contracts — Substitution of Parties — Damages.—Where “A” entered' into a contract with “B” to erect a building for “B,” the face brick, to be furnished by “B,” and “B” made a contract with “C” to furnish the face brick, and thereafter “A” took the place of “B”" in the contract with “C,” he could recover damages against “C”‘ for bis failure to furnish. the brick in accordance witk his contract with “B.”</p>

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

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

<p>1. Husband and Wife — Joint Deed of Husband and Wife. — Section nog of tbe Kentucky Statutes provides that land of a wife may be conveyed, by the joint deed of the husband and wife, and where the wife sought to convey her land in a deed in which the husband was not. named as a grantor, but in the body of the deed there was a recital that the husband joined for the purpose of relinquishing his homestead and dower rights, and both husband and wife signed and acknowledged the deed, this was a joint deed in the meaning of the statute.</p> <p>2. Husband and Wife — Joint Deed of Husband and Wife. — Where the name of the husband did not appear in a deed made by the wife conveying her land, but he signed and acknowledged the deed in conjunction with his wife, this will not be a joint deed in the meaning of the statute.</p>

<p>1. Insurance — Delivery of Policy — Payment of Premiums — Time of Death. — Where a life insurance policy was dated June 8th, 1914, hut was not delivered until June 13th, 1914, when the initial premiran was paid, and the insured died on June 8th, 1915, he died after one year from the date of the policy — the date being its numerical date, and not the date of its delivery.</p> <p>2. Time — Computation of Time — Rule for. — When the computation of time is to be made from an act done, the day on which the act is done must be included; but, when the computation is to be made from the day itself, and not from the act done, the day on which 'the act is done must be excluded from the computation.</p> <p>3. Insurance — Incontestability of Policy. — Where a life insurance policy dated June 8th, 1914, provided that it should be incontestable, except for non-payment of premium, in case of the death of the insured after one year from the date thereof, the policy was not contestable upon the ground that the insured committed suicide on June 8th, 1915, or that he had fraudulently represented, in his application for the policy, that he had not theretofore been affected with gall stones.</p>

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

<p>Attachment — Public Officer — Registrar of Vital Statistics — Pees.—The local registrar of vital statistics is a state officer and his fees, while in the hands of the treasurer of the county, are not subject to attachment.</p>

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

<p>1. Criminal Law — Continuance—Absence of Counsel. — A continuance will not be granted on account of tbe absence of one of several counsel, unless it appears that the defendant can not have a fair trial without the presence of such counsel.</p> <p>2. Homicide — Threats.—Threats, menaces or previous assaults will not excuse the taking of human life, unless at the time and place of the killing there is either a necessity or apparent necessity to kill, in order to avert a danger then and there impending, either real or apparent.</p> <p>3. Criminal Law — Self Defense — Evidence.—It is always competent to prove upon a plea of self defense, when the evidence tends to show any necessity or apparent necessity, at the time and place of the killing, threats, menaces, and previous assaults of the deceased upon the accused,' to show the beliefs, motives and necessities of the accused, or the probable aggressor, but' such facts should not be grouped in an instruction and it given, as it unduly emphasizes these facts, to the prejudice of the other facts of the case.</p>

<p>1. Appeal and Error — Reversal of Judgment — Verdict Flagrantly Against the Evidence. — The instructions given by the 'court whether correct or not are the law of the case and binding upon the jury, and a judgment based upon a verdict which is flagrantly against the evidence under the instructions given will be reversed,</p> <p>2. Contracts — Breach—Measure of Damages. — The measure of dam* ages for a breach by the vendee of an executory contract for the purchase of elm logs is not lost profits, but is the difference between the contract price and the market value at the place and time of delivery, except under exceptional circumstances.</p> <p>3, Contracts — Breach-—Time of Delivery. — Where the time of delivery must continue under the contract through an indefinite period, the time of the breach of the contract is deemed to be the time of delivery.</p>

<p>• 1. Corporations — Crimes and Criminal Prosecutions — Pleading.—In a ¡penal action tbe only plea required of the defendant in. order to put in issue tbe charges made by the Commonwealth is one of not guilty. But if he files an answer denying such charges, it will have the same effect, and it is unnecessary to allege in another paragraph of the answer the facts constituting his defense, and if he should do so the Commonwealth is not required to reply thereto.</p> <p>2. Corporations — Crimes and Criminal Prosecutions. — Where goods were ordered from the defendant at its place of business in Buffalo, New York, from a place in this state, and the order is accepted and goods shipped from its house in Buffalo, remittances being made by the purchaser, no part of the sale occurring in this state, the transaction is one exclusively interstate commerce, and the defendant cannot he compelled to comply with section 571 of the Kentucky statutes by filing with the secretary of state a satement designating an agent upon whom process may he served on behalf of the defendant.</p> <p>3. Corporations — Crimes and Criminal Prosecutions. — Merely advertising one’s business or goods, wares or merchandise is not a carrying on of business at the place where the advertisement is made, even though such advertisement consists in exhibiting samples of the goods for the inspection of prospective customers.</p> <p>4. Principal and Agent — Proof of Agency. — Agency cannot he proven by the declarations of the supposed agent.</p>

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

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

<p>1. Master and Servant — Scope of Servant’s Employment. — The master is not liable for the acts of his servant, unless they are done within the scope of his employment, and within the authority given him by his employment; but if such -acts are done within the scope of the employment of the servant, the master is liable for the consequences, even though the acts of the servant be willful and malicious.</p> <p>2. Master and Servant — Liability for Acts of Servant. — Where a servant whose duty it was to perform any act which the master might direct, and with no specific employment, while engaged in the performance of any general duties to the master, undertook, to sprinkle the streets in front of a store of the master in order to cool the atmosphere and settle the dust, without being directed by the master to do so, he is engaged in an undertaking of his own and not that of the master, and if he should throw water upon another, either purposely or accidentally, the master is not liable for the damages produced.</p>

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

<p>1. Taxation — Place—Domicile or Residences — Intangible Personal Property. — The owner of a farm sold his farm and distributed some of his property among his children. He purchased a lot in. the city of Flemingsburg, Kentucky, upon which he afterwards erected a commodious home. Shortly thereafter he purchased a farm in Ohio, declaring his intention to make it his home. In renting the farm he reserved two rooms in the residence thereon, in which he placed household and kitchen furniture. He spent a portion of each year on the farm, improving it and attending to the only business he had. He paid taxes on his intangible personalty t.o the taxing officers of the state where the farm was. located and also voted in several elections held in that state: Held, that he was an actual resident of the state of Ohio, notwithstanding the fact that he occupied for a greater portion of the time a dwelling house in Kentucky that was more comfortable and better furnished than his residence in Ohio.</p> <p>2. Taxation — Place.—Domicile—Residence.—The intangible personalty of a non-resident is taxable at his domicile and not in this state.</p>

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

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

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

<p>1. Deeds — Construction—Intention of Grantor. — The effect of a deed turns upon its proper construction when read as a whole; and when, upon the whole instrument it appears that the grantor’s intention was to yest a less estate than a fee in the grantee, that intention will be carried into effect.</p> <p>2. Deeds — Construction—intention of Parties. — In seeking the intention, the formal divisions of a deed are to be disregarded and the deed is to be considered as a whole, and not in separate and distinct parts, as was formerly done.</p> <p>3. Deeds — Construction.—The rule is that where, by a deed a fee simple is granted, and the deed as a whole showed an intention to vest the grantee with the fee, an attempted limitation on the fee will be disregarded. The rule is based upon the principle that a grantor cannot destroy his own grant, however much he may modify it or load it with conditions.</p> <p>4. Deeds — Construction.—The reason for giving the preference to the granting clause in case of doubt, lies in the fact that it is an indispensable part of the deed, while subsequent clauses ordinarily are not; and, insofar as the rule operates to prevent the abridgment of the estate conveyed by the granting clause, it may also be said to be a consequence of the rule that, where the interpretation of the deed remains doubtful, the court will adopt the construction which is most favorable to the grantee.</p> <p>5. Deeds — Construction.—Where a deed by its granting clause conveyed land to Belle Land, wife of Eugene Land, her heirs and assigns, with the usual habendum clause confirming the land to her, her heirs and assigns forever, it conveyed to Belle Land a fee simple estate, although there was added, after the habendum clause, a sentence saying it was understood and agreed that the described property should revert to the heirs at law of Eugene Land, at the death of Belle Land, his wife.</p>

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

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

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

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

<p>1. Appeal and Error — Verdict Flagrantly Against the Evidence. — In a suit by a principal against his factor to recover damages for losses sustained on account of the factor’s alleged departure from the instructions of the principal in the sale of his property, the verdict of the jury finding that there was a departure was flagrantly against the evidence.</p> <p>2. Factors — Duties and Liabilities of. — If the principal sustains loss on account of the failure or refusal of the factor to obey his instructions, the factor iS' liable to the principal for the damage he has suffered by reason of the departure unless the principal by his subsequent course of conduct, after having full knowledge of all the circumstances connected with the transaction, puts himself in the attitude of ratifying or approving what his factor did.</p> <p>8. Factors — Duties and Liabilities of. — If the principal has knowledge of the violation of or departure from his orders and the extent of the loss he has sustained thereby, and desires to hold the factor responsible, he must within a reasonable time thereafter make complaint to the factor and disaffirm or disapprove of his acts in such manner or way as to reasonably apprise him that he will look to him for indemnity. If he fails to do this, he will be deemed to have waived his right to recover indemnity or damages.</p> <p>4. Estoppel — Must be Pleaded. — A factor who claimed that his principal had ratified an alleged departure from his instructions cannot avail himself of this defense in a suit by the principal to recover damages for a departure from his instructions unless he pleads by way of estoppel the ratification of the principal. Evidence of ratification or approval in such a case is not allowable under a pleading that merely traverses the complaint of the principal.</p>

<p>1. Nuisance — Abatement of. — In tbe abatement of a nuisance tbe one abating it, unless the nuisance threatens immediate destruction of bis property, is held to tbe exercise of ordinary care in doing so, and if by the exercise of sucb care, and at a reasonable expense, it may be abated without tbe destruction .of. tbe property creating it, it should be done, and for a failure to do so tne owner of the property creating the nuisance may recover tbe damages resulting therefrom.</p> <p>2. Nuisance — Abatement of. — The abater of tbe nuisance in sucb cases would have a right to recover from the owner of tbe property tbe reasonable cost incurred- in abating it, and in a suit against him by sucb owner tbe damages-should be reduced by tbe amount of such reasonable cost.</p> <p>3. Nuisance — Abatement of by Railroad Company. — Where a house was lifted from its foundation by a flood, and carried some distance from tbe lot of the' owner and deposited in tbe street across a railroad track, tbe railroad company has a right to abate the' nuisance by removing tbe bouse, but in doing so it must exercise ordinary care, and if by tbe exercise of sucb care and a reasonable expense tbe bouse could be removed intact, this should be done, and, if not done, and tbe bouse should be wrecked, the company would be liable to tbe owner of tbe bouse for tbe difference between tbe value of tbe bouse at it stood on tbe track, less' tbe reasonable cost of removing it; and in -estimating tbe value of tbe bouse as it so stood the proximity of the -plaintiff’s lot to the place where the bouse stood should not be taken into consideration by tbe jury.</p> <p>4. Nuisance — Value of Property — How Arrived at. — In arriving at tbe value of tbe bouse as it stood on tbe railroad track, evidence of tbe cost of tbe bouse, or what plaintiff paid for the property should not be admitted or considered by tbe jury.</p>

<p>1. Action — Joint Defendants in Transitory Action — Service of Process — Dismissal—Judgment.—Where several defendants in a transitory action are sued jointly, and one is served with, process in another county, judgment cannot be rendered against him if the action is dismissed as to, or judgment is not -rendered against, the defendant served in the county in which the action is brought.</p> <p>2. Action — Joint Defendants in Transitory Action — Service of Process — Judgment.-—-Where several defendants in a transitory action are sued jointly, and one is served with process in another county and the action against the defendant who was served in the county in which the action was filed is dismissed, a judgment taken against the defendant who was served in another county, is void.</p> <p>3. Action — Joint Defendants in Transitory • Action — Service of Process — judgment.—Where several defendants in a transitory action are sued jointly, .and one is served with process in another county, and the action is dismissed as to the defendant who was served with process in the county in which the action was filed, the order of dismissal placed the plaintiff where he would have been had the action not been brought; and, when the action was reinstated upon the docket, the legal effect was the same that would have resulted had the suit then been brought for the first time, and a judgment could not be obtained without a new service of process.</p>

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

<p>1. Judgment — Estoppel—Conclusiveness-—Matters Concluded. — Plaintiff and ber husband owned adjoining tracts of land. On the death of her husband a creditor sued to subject his land to the payment of his debts. Plaintiff was a party to this suit. The land was sold and deed made to the purchaser. By mistake one of the calls in the deed to the husband was omitted from the judgment and commissioner’s deed. On motion of the purchaser the judgment was corrected and a new deed made to the purchaser containing the omitted call. The purchaser claimed a'portion of plaintiff’s land on the ground that it wás embraced in his deed. Plaintiff sued to enjoin trespass thereon: Held, that as no issue of title as between her and her husband’s estate or creditors was presented by the pleadings in the creditor’s suit or was involved in the action, plaintiff was not estopped by either the original judgment of sale or the corrected judgment, and deed made pursuant thereto to assert title to the tract in controversy, even if included in the deed to the purchaser.</p> <p>2. Appeal and Error — Trial—Incorrect Theory — Practice.—Where, in an action to enjoin trespass, only a question of title is involved, and the case was erroneously tried on the theory that plaintiff was estopped to assert title by proceedings in a former suit to which she was a party if the deed which the purchaser acquired in that action conflicted with her -deed, and the evidence was directed inore particularly to the question of conflict, the court in reversing will not pronounce final judgment, but will remand the case and give the parties an opportunity to take further proof on the question of title.</p>

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

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

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

<p>Elections — Primary Elections — Defeated Candidate in Primary May Have Name on Ballot in General Election. — There is nothing in the primary election law in Kentucky, as amended by the act of 1914, to prevent a defeated candidate for a party nomination from having his name printed on the ballot for the general election as an independent candidate under an independent device selected by him, as prescribed by section 1453 of the Kentucky statutes; and if, at the general election, he defeats the party candidate who defeated him in the primary, his election will be valid, and,, the fact bf his being defeated in the primary and afterwards becoming an independent candidate will not be grounds for contesting his election.</p>

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

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

<p>1. Mines and Minerals — When Tenant for Life May Operate Mine.— A tenant for life, unless precluded by restraining words, may work á mine that was opened before the creation of the life-estate, even to exhaustion.</p> <p>2. Mines and Minerals — Dower Right in Mine. — A right to dower exists in mines opened during the husband’s lifetime.</p> <p>3. Mines and Minerals — Unopened Mine — Dower.—There is no dower in unopened mines. A doweress has no right to mine coal from unopened mines, otherwise than as subservient to a comfortable enjoyment of her life estate; a sale for commercial use of coal so mined is an act of waste that lessens the estate of the remainderman, and for that reason is not permissible.</p> <p>4. Mines and Minerals — Mining by Life Tenant.' — Mining by the life tenant for commercial purposes, will be allowed if the former owner of the fee has impressed upon it the character of mining land, by executing an enforceable lease for that purpose prior to the commencement of the life estate, although no mines had been opened thereunder until after the commencement of the life estate.</p> <p>5. Mines and Minerals — When Widow May Not Lease Mine. — Where a land owner contracted to lease the mining privileges of his Ian11 u©on conditions that were to be performed within one year, and the conditions were not performed, and the land owner subse- • quently died without having made a lease, his widow couíd not make a valid lease for mining privileges pursuant to the expired contract made by her husband in his lifetime, and had no right to open the mines for commercial purposes.</p>

<p>1. Intoxicating Liquors — Barter—Exchange—Sale.—The exchange by a distiller of his own brandy for apples belonging to another is a sale within the meaning of the local option law.</p> <p>2. Intoxicating Liquors — Prohibition—Distillation.—One who receives apples to be distilled into brandy on shares does not, by delivering to the original owner his portion of the product, violate a law prohibiting the sale of intoxicating liquors.</p>

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

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

<p>1'. Depositions — Waiver of Exceptions. — Where objections are made to questions and answers as depositions are being taken, and written exceptions filed to depositions, but the parties do not request the trial- court to pass upon the exceptions and it does 'lot do so, upon appeal,the exceptions will be treated as having been waived by the parties in the trial court.</p> <p>2. Contracts — -Obstructing Justice. — Any contract to stifle or impede the due course of public justice is against public policy, and is illegal and unenforcible. -</p> <p>-3. Contracts — Illegal Consideration. — If any part of the consideration for a contract is illegal and vicious, the entire agreement is void.</p> <p>■4. Contracts — When Cannot be Avoided. — A party to a contract, who is innocent of any unlawful purpose in making the contract, and seeks to have if enforced, it can not be avoided by the other party on account of an unlawful purpose which actuated him" in making it, and which he did not disclose.</p> <p>f>\ Contracts — Contract for Loan of Money. — In a contract for the lending of money, although the lender may have knowledge of the unlawful purpose for which the borrower • intends to use it, he can recover it of the borrower, unless the accomplishment of the unlawful purpose entered into the transaction as an inducement or motive for lending the money, or the lender participated in the • intent to accomplish the illegal act. Bare knowledge <m the part of the lender, that the'borrower intends to use the money for an illegal purpose will not vitiate the loan and -deprive the lender of ■all remedy.</p> <p>6. Contracts — Duress as- Plea to Avoid. — Duress will' not avail as a plea'-to avoid a1 contract, unless the one who is seeking to enforce .- it or 'his agent imposed: the-, duress, or the duress was imposed with, his knowledge and was taken advantage of by him to obtain, the contract.</p> <p>7. Contracts- — Duress.—Duress by a third person will not avoid a contract made with a party who was without knowledge of it.</p> <p>8. Contracts — Contract to Compound Offenses. — Where money is paid, in performance of a contract to compound a felony, it can not be recovered, as the parties are in equal wrong, and a court of equity will not give relief to either, but will leave them in the-position in which they have placed themselves.</p> <p>9. Contracts — Party to Illegal Contract. — If the parties to an illegal contract are not equally wrong, the less guilty one, though concurring in the illegal act, may have relief, if his concurrence was. caused by. fraud, duress or undue influence practiced upon him by the other party.</p> <p>10. Contracts — Duress.—Duress exists where one, by the unlawful act of another, is induced to perform an act or make a contract under circumstances which deprive him of the exercise of his free will.</p> <p>11. Contracts — When Duress Will Not Avoid. — Generally a contract can not be avoided because of duress imposed upon one, other than the one seeking to avoid the contract, but where a wife is induced to execute a contract through fears aroused by threats made to her to prosecute her husband for a crime, it may be avoided because of the duress.</p>

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

<p>Ejectment — Burden of Proof. — In an action of ejectment, where the plaintiff avers ownership and right of possession, and the defendants traverse this averment, the burden of proof is upon the plaintiff, and he failing to offer any evidence, which tends to prove his title to the land, the court should direct a verdict against him.</p>

<p>Criminal Law — Statute Defendant Should be Tried Under — Indeterminate Sentence. — One charged with a crime should be tried under the statute in effect at the time the crime was committed, and not under an amendment to that statute which afterwards became effective and was in force at the time of the trial. (Coleman v. Commonwealth, 160 Ky. 87.)</p>

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

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

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

<p>Appeal and Error — Instructions.—Where no objection was made nor exception taken to the actio.n of the trial court in giving instructions, their propriety cannot be -considered on appeal.</p>

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

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

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

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

<p>1. Easements — Extent of Right — Maintaining Gates — Intention of Parties Governs. — While the grant of a way without any reservation of a right to maintain gates does not necessarily imply that the owner' of the land may not do so, if, however, it appears from the terms of the grant or the circumstances of the case that such was not the Intention of the parties, the owner of the servient estate cannot maintain them across the passway.</p> <p>2. Easements — Extent of Right — Obstruction—The right of the grantee to have the way unobstructed by gates depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement and the manner in which it had been used and occupied.</p> <p>8. Easements — Extent of Right — Intention of Parties — Unreasonable Interference.- — Where the passway was paid for by the grantee and the grant thereof was contained in the same deed conveying him the land from which the passway afforded him an outlet over the adjoining land of the grantor to a turnpike, the location of-the passway was well defined and the only gates across it were at points where it entered and left the grantor’s land,, it -will not be presumed that it was the intention of the parties that the grantor, as owner of the servient estate,. would have the right ‘ to erect other gates elsewhere on the passway, and the erection of such additional gates would constitute an unreasonable interference with the grantee’s use of the passway.</p>

<p>1. Railroads — Actions for Injuries by Fire. — Circumstantial evidence when sufficiently strong and well connected will authorize a jury to find that sparks from an engine were the cause of a fire in a building near the railroad; it is not necessary that the sparks should have been seen to fall on the building or into it.</p> <p>2. 'Railroads — -Actions for Injuries by Fires. — There being evidence that an engine of a certain type supplied with proper spark arresters would not emit live sparks if properly managed and operated, and there being evidence that it was so equipped with spark arresters and that it did on a certain occasion emit live sparks, it was proper to submit to the jury the question of negligent operation.</p> <p>3. Railroads — Action for Injuries by Fires. — Evidence of the emission of sparks by locomotives shortly before and shortly after the fire in question is competent, and where a witness in answer to a properly framed question on this issue does not confine himself to occasions shortly before or shortly after the fire, but voluntarily speaks of more remote occasions, such evidence will not be held prejudicial where there was evidence as to other occasions which did -come within the rule.</p>

<p>1. False Imprisonment — Evidence—Question for Jury. — In an action for damages for false arrest and imprisonment, evidence considered and held that the question whether or not the officer malting the arrest had reasonable grounds to believe that plaintiff had committed a felony was for the jury.</p> <p>2. False Imprisonment — Damages—Measure of Damages — Instruct ticn. — In an action for damages for false arrest and imprisonment,' an instruction authorizing a recovery of damages for physical suffering is erroneous, where no physical suffering is shown.</p>

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

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

<p>1. Executors and Administrators — Appointment and Qualification.— Under sections 3896 and 3897, Kentucky Statutes, the county court must appoint a relative of the intestate, administrator of his estate, in preference to a stranger or a creditor, if a relative, who is a distributee of tbe estate and competent and qualified for tbe trust, makes application for tbe appointment at or before tbe second county court after tbe death of tbe intestate.</p> <p>2. Executors and Administrators — Appointment and Qualification.— Under stations 3896 and 3897, Kentucky Statutes, tbe appointment of a stranger or creditor as administrator of the estate of an intestate, before tbe second county court after tbe. death of tbe intestate, is erroneous, if there is a relative of tbe intestate, who is a distributee and who resides in tbe state, and is competent a.nd qualified for tbe trust.</p> <p>3. Executors and Administrators — Appointment and Qualification— Revocation. — Where a stranger or creditor has been appointed administrator of tbe estate of an intestate before tbe second county court after tbe death of tbe intestate, and before or at said county court, a relative of tbe intestate, who is a distributee of tbe estate, and is legally qualified and competent to discharge tbe trust, applies for letters of administration, it is tbe duty of tbe court to revoke the appointment of tbe stranger or creditor and to appoint tbe relative in bis stead.</p> <p>4. Executors and Administrators — Appointment and Qualification. — ■ When relatives of an intestate, who are distributees, sign and file a request for tbe appointment of another as administrator of tbe decedent, they thereby decline to apply for administration themselves, and have not power to nominate an administrator, to tbe exclusion of a relative and distributee, who is legally qualified and competent for the trust, and who makes application for tbe appointment.</p>

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

<p>Ferries — Landing—Right of Boats Operated as Common Carriers to Use Landing. — Where both the road leading to the ferry landing and the landing itself are located on the land of the owner of the ferry franchise and the landing has never been dedicated to the publia generally, the right of the public to use the road and landing for the purpose of crossing the river on the ferry line, or for the purpose of transporting themselves and their property across the stream, does not convert the landing into a public one for all purposes. With respect to the owners of steamboats navigating the river as common carriers, the landing is private, and they have no right, without the consent of the owner of the ferry franchise, to use the landing for the purpose of receiving and discharging passengers and freight.</p>

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

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

<p>1. Domicile — Nature and Elements — Intention.—Legal residence consists of fact and intention; both must concur; when legal residence is once fixed it .requires botbi fact and intention to change it.</p> <p>2. Domicile — Change of Domicile — Intention.—Where a ' person .changes his place of abode with an expressed intention, not inconsistent with. his, conduct, of retaining his legal residence at the old home, he does not change his legal residence.</p> <p>3. Domicile — Intention.—The question of intention is one of fact to be determined upon all of the facts in evidence in a particular case.</p> <p>4. -Domicile — Change of Domicile. — Upon all the facts of this case held that the party did not change his legal residence to the home of another although he remained there for seven or eight years.</p>

<p>1. Homicide — Involuntary Manslaughter — Instruction on Subject of.— Involuntary manslaughter is shortly defined to be the killing of another in doing some unlawful act, but without an intention to kill; so that in all cases in which it is sought to have an involuntary manslaughter instruction, it should appear from all the facts and circumstances that the intention to kill the person assaulted, or struck, or wounded, was lacking. If the intention to kill is present, the doctrine of involuntary manslaughter has no place in the case.</p> <p>2. Homicide — Involuntary Manslaughter — Instruction on Subject of. —On this issue the material inquiry in every case is whether the killing was done with malice and intent to kill, and not the manner by or through which it was done, or whether the implements used were deadly weapons or not.</p> <p>3. Homicide — Involuntary Manslaughter — Instruction on Subject of.— Where the undisputed facts show that the accused beat and bruised the deceased in such a brutal manner as to leave no room to doubt that he did intend to kill him, an instruction on the subject of involuntary manslaughter should not be given.</p> <p>4. Homicide — Involuntary Manslaughter — Instruction on Subject of.— If, however, the facts and surrounding circumstances reasonably show a lack of intention to kill, an instruction on the subject of involuntary manslaughter should be given.</p> <p>5. Homicide — Insanity—-When Instruction on Subject of Should be Given. — The rule in this state is that where there is evidence tending to sustain the plea of the accused that he was of unsound mind, the court should not take the case from the jury by refusing to give an instruction on this issue.</p> <p>■6. Homicide — Insanity—Non-Expert Evidence. — The opinion evidence of intimate friends and acquaintances, as to the soundness or unsoundness of mind of the accused, is competent, although they are not experts. But the evidence of non-experts is permissible only upon the theory that by long association and observation they Lave bail an opportunity to form an opinion as to the sanity or insanity of the accused, and this opinion they may give, as well as the facts upon which it is based.</p> <p>7. Homicide — Insanity—Instruction on Subject of. — When the defense of insanity is set up as an excuse for crime, there should be some tangible evidence in support of the plea. The non-expert witnesses who testify on the subject must have had an opportunity to observe the manners, habits and course of conduct of the accused through such a period of time as would enable them to come to a fair conclusion as to his 'mental condition.</p> <p>8. Homicide — Insanity—Instruction on Subject of. — A person who sees a man only a few times and who has no intimate acquaintance or long association with him, is not qualified to express the opinion that the man is or is not of unsound mind.</p> <p>9. Homicide — Insanity—Instruction on Subject of. — So that the mere expression of opinion that a person is or is not of sound mind, unless the opinion has been formed from information based on extended observation, acquaintance or association, is not admissible.</p> <p>10. Homicide — Insanity—Instruction on Subject of. — The fact that the accused is unlearned, passionate, ignorant, or even of a weak mind, will not justify an instruction on the subject of insanity.</p>

<p>Evidence — Documents—Writings—Admissibility as Evidence. — A document, which, appears to be as much as thirty years of age, and is unblemished by alterations and otherwise free from suspicion of a’want of genuineness, and which is found in the proper custody, is admissible, as evidence, in support of an ownership of land, without direct proof of its execution, but, when admitted, its weight as evidence is then a matter for the determination of the court or jury, -whose province it is to determine the facts at issue.</p>

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

<p>1. Homicide — Dying Declaration —■ Competency. — The question whether statements made by a deceased are competent as a dying declaration is wholly for the court, and all preliminary proceedings necessary to enable the court to pass upon that question should be heard apart from the jury.</p> <p>2. Homicide — Dying Declaration — Competency.—It is not - necessary that the deceased should have expressly declared the belief that he was going- to die or that he could not recover to make his statements competent as a dying declaration; his state o£ mind may be shown as well by circumstances and surroundings.</p> <p>3. Homicide — Dying Declaration — Competency. — Where deceased had been informed by the doctor that she had but a short time to live, and after being so informed said she was sorry to die and leave her child, her statements thereafter made were competent as a dying declaration.</p> <p>4. Criminal Law — Evidence.—When two crimes are simultaneously committed or are so intimately connected with each other as to time and locality that they are inseparable, if one is on trial-charged with one of them, evidence as to both must be admitted.</p> <p>5. Criminal Law — Setting Aside Indictment — Exception.—The action of the trial -court upon motion to set aside an indictment is not subject to exception, and cannot be reviewed by this court.</p> <p>6. Homicide — Indictment and Information — Sufficiency.—An indictment charging the defendant with the icrime of wilful murder in that he unlawfully, maliciously, feloniously and with malice aforethought killed and murdered the deceased by shooting, etc., is sufficient.</p> <p>7. Homicide — Indictment and Information — Sufficiency;—It is not essential that the word “wilful” should be in such an indictment.</p> <p>8 Homicide — Reducing Charge to Voluntary Manslaughter. — It is only necessary to reduce the charge of murder to that of voluntary manslaughter if the killing is done in sudden heat and passion or in sudden affray.</p> <p>9. Criminal Law — Instruction on Self Defense. — An instruction on . self defense, which required the jury to believe before the defendant might be acquitted on that ground, not only that he at the time believed it to be necessary to kill deceased to protect himself from death or great bodily harm, but that such necessity actually existed, was erroneous.</p> <p>10. Criminal Law — Instruction on Self Defense. — An instruction which told the jury in substance that the defendant could not rely upon the plea of self defense if they should believe from the evidence beyond a reasonable doubt that he participated in and brought on the difficulty, was erroneous; such an instruction is too general and fails to indicate or define how the defendant brought on the difficulty, and leaves to the jury, rather than to the defendant, the question whether or not they believed that the deceased was about to inflict harm upon him.</p>

<p>1. Prohibition — Dissolution of Order Granting. — The denial of a writ of prohibition upon the final hearing of the case necessarily operated as a dissolution of the temporary order of prohibition granted at the institution of the proceeding. The case could not be pending for one purpose after it had been dismissed for all purposes.</p> <p>2. Appeal and Error — Effect of Appeal. — The effect of an appeal is to remove the case to the higher forum and to continue the proceedings there. A case cannot progress at the same time in the inferior and in the appellate tribunal.</p> <p>3. Appeal and Error — Effect of Appeal. — When an appeal has been taken, the case is no longer pending in the lower court; its authority is terminated; and, no further steps can be taken there, except by way of amendment or correction of the record for the purpose of taking the corrected record before the appellate court, by certiorari or subpoena duces tecum, and thus enabling that court to correctly decide the case.</p> <p>4. Appeal and Error — Supersedeas—Appeal to Supreme Court of United States. — Where the Chief Justice of the Court of Appeals entered an order directing that the writ of error should operate as a supersedeas, and the appellant failed to serve the writ of error by lodging a copy thereof for the adverse party in the clerk’s office where the record remains, as required by section 1007 of the U. S. Revised Statutes (1901), the error, if any, can be taken advantage of only by motion or other proceeding in the Supreme Court of the United States, where the appeal is pending.</p>

<p>Corporations — Foreign Corporations — Service of Process — Agent.—■ A foreign corporation agreed to sell and furnish its automobiles f. o. b. Detroit, Michigan, to a retail firm in Kentucky at certain discounts from list prices. Terms of payment were cash, or sight draft against bill of lading. Title to the property was to remain in the corporation until paid for. On expiration of the contract the corporation reserved the right to take back at invoice prices any goods purchased by the local firm which were not disposed of. The local firm was to pay all taxes on the goods on hand. It and the corporation were to share the cost of advertising. Held, that neither member of the local firm was the agent of the corporation within the meaning of the statute providing for service of process on foreign corporations.</p>

<p>1. Executors -and Administrators — Allowance and Payment of Claims • — Demand—When Not Necessary. — Where an action is commenced by the executor, in suing on a note, and claims against the testator’s estate are asserted by the defendant by way of counter-claim and set-off, demand of the executor for their payment before the filing of the answer and counter-claim is not necessary or required.</p> <p>2. Executors and Administrators — Allowance and Payment of Claims —Verification of Claim — Mandatory.—In view of the provisions of sections 3870-74, Kentucky Statutes, even in the absence of an objection from the executor, the court is without- authority to allow or give judgment for a set-off or counter-claim against the testator’s estate, pleaded by a creditor when sued- by the executor on a note, where the creditor fails to verify his claim, as required by the statute.</p>

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

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

<p>1. Pleading — Variance Between Allegations( and Proof. — No variance between the pleadings and proof is material, which does not mislead a party to his prejudice, in maintaining his action or defense upon the merits; and, a party who claims to have been so misled must show that fact to the satisfaction of the court. The complaint of a variance comes too late when made in the Court of Appeals, for the first time.</p> <p>2. Appeal and Error — Failure to‘Object to Incompetent Evidence at Trial. — Where a party' to an action failed to object to the admis- . sion of incompetent testimony upon the trial, he cannot take advantage of the error upon appeal.</p> <p>3. Trial — -Instructions.—An instruction not warranted by the proof, should not be given, although it was properly worded and followed the allegations of the petition.</p> <p>4. Master and Servant — Work in Unsafe Place — Instructions.—In an action against a railroad company for damages for requiring a minor to work in an unsafe place without warning him of his danger, the trial court properly placed upon the company’s officers superior in authority to the plaintiff, in case they knew- of his danger, the duty to warn and instruct the boy of his danger; but in requiring them to do so “as often as may have been reasonably necessary” to make him fully understand and appreciate the danger, the instruction went too far, and was erroneous.</p> <p>5. Trial — Instructions.-—-The defendant cannot complain of an instruction which, in effect, is the samé as 'another instruction given upon his motion. ,</p> <p>6. Master and Servant — Impairment of Earning Power — Instructions. —In an action by a minor against a railroad company for damages for personal injuries, it was error for the court to authorize a recovery for the boy for any permanent impairment of his power to earn money during the boy’s minority; the boy’s right to recover upon this ground should have been limited to the period subsequent to the time he should become twenty-one years of age.</p> <p>7. Parent and Child — Action for Loss of Services — Medical Expenses. —In a suit by a father to recover for the loss of his son’s services during his1 minority and for medical expenses incurred, the cou-rt in its instructions should limit the amount of recovery for medical expenses to the amount claimed in the petition.</p> <p>8. Trial — Instructions.—Instructions which are repetitions of other instructions, should not he given.</p>

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

<p>1. Estoppel — Assent to and Acquiescence in Sale of Real Estate. — One who knows of añd takes part in a sale and conveyance of real estate to another for a valuable consideration and acquiesces therein for thirteen years is estopped from claiming the property under an unrecorded deed of prior date to himself, of which the purchaser had no knowledge.</p> <p>2. Deeds — When Invalid — Acceptance.—A deed executed and recorded by the grantor without the knowledge or consent of the grantee is invalid until accepted by the grantee.</p>

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

<p>1. Revenue and Taxation — Forfeiture of Land Under Section 4076b of the Kentucky Statutes for Failure to Pay Taxes — Sufficiency of Petition. — In a suit to forfeit land under section 4076b of the Kentucky Statutes for failure to list it for taxation or pay the taxes thereon, there must be filed with the petition, as provided in the statute, a copy of the grant or instrument upon which the title or claim sought to be forfeited is based; otherwise a judgment by default will be void.</p> <p>■2. Revenue and Taxation — Forfeiture of Land Under Section 4076b of the Kentucky Statutes for Failure to Pay Taxes — Requisites of Petition. — A petition seeking to forfeit land under section 4076b of the Kentucky Statutes for failure to assess and pay the taxes thereon, in which the land sought to be forfeited is described only by the numbers of the patents, and when there is not filed with the petition the grant or instrument upon which the title or claim sought to be forfeited is based, is insufficient to support a judg>ment by default, and a- judgment rendered on such a petition will be void.</p> <p>3. Revenue and Taxation — Void Judgment Under Section 4076b of the Kentucky Statutes — Appeal From. — The provisions of section 4076b of the Statutes, regulating the time and manner in which, appeals from judgments under the statute may be taken to this, court, have no application to a case in which the judgment is void. They only regulate proceedings that are erroneous. But when a void judgment is entered under this statute, a motion should be made, in the court which entered the judgment, to set it aside, and if it fails to do this, an appeal may be prosecuted to this court.</p> <p>4. Judgment- — Void Judgment — Definition of. — A void judgment is no judgment. It has at no :ime or place any force or effect. It does not give the plaintiff anything or take from the defendant anything.</p> <p>5. Judgment — Void Judgment — How Relief From May be Obtained.— A defendant who seeks relief from a void judgment should make a motion in the lower court to have it set aside, and upon the failure of the lower court to do this, prosecute an appeal to this court.</p> <p>6. Judgment — Things Essential to Validity of. — It is just as indispensable to the validity of a judgment by default that the court should have jurisdiction of the subject-matter of the action as that it should have- jurisdiction of the person of the defendant.</p>

<p>1. Divorce — Review—Scope.—The Court of Appeals cannot reverse a decree of divorce, but may review the correctness of the decree for the purpose of determining whether or not alimony was properly awarded or refused, or the custody of children was properly bestowed.</p> <p>2. Divorce — Alimony.—Where the husband is improperly granted a divorce and the wife has not sufficient estate of her own, the court may allow her alimony out of the husband’s income or estate.</p> <p>3. Divorce — Grounds for. — Under our statutes, an ungovernable temper and quarrelsome disposition on the part of the wife are not grounds for divorce by the husband.</p> <p>4. Divorce — Alimony—Evidence.—In an action where the wife sued and the husband counter-claimed for divorce and the divorce was improperly granted the husband, evidence examined and held to show that the wife was not in such fault as to deny her the right to alimony. • .</p> <p>5. Divorce — Custody of Children. — In case of divorce, the custody of children of very tender years will be awarded to the mother if she be a suitable person.</p>

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

<p>1. States — Territorial Extent — Boundaries of States — Navigable Waters — Where a river is the boundary between two nations or states, if the original property is in neither, and there is no convention respecting it, each holds to the middle of the stream; but, when one state is the original proprietor of the territory on both sides of the river and grants the territory on one side only, it retains the river within its own domain, and the newly created state extends to the river only.</p> <p>2. States — Territorial Extent — Boundaries.—Prior to her cession of the Northwestern Territory to the United States in 1784, Virginia, as the owner of the lands on both sides of the Ohio river, possessed the domain, empire, sovereignty and jurisdiction over that part of the Ohio river which flowed through her territory.</p> <p>3. States — Territorial Extent and Boundaries — Sovereignty Over Ohio River.- — By her cession of her territory lying northwest of the Ohio river to the United States, in 1784, the domain, empire, sovereignty and jurisdiction of Virginia oyer the Ohio river did not pass, but remained in that' state and passéd to Kentucky upon its organization as a state, in 1792.</p> <p>4. States — Police Powers of. — Every state has the right to enforce its own laws within its boundaries.</p> <p>5. States — Jurisdiction of Kentucky Over Ohio River. — The proprie- • torship of Kentucky and its attendant jurisdiction over the Ohio river are subject only to the limitations laid thereon in the compact of 1789 between Virginia and Kentucky, which provides, among other things, that the jurisdiction of Kentucky over the Ohio river shall be concurrent only with the states which may possess the opposite shores of the river.</p> <p>6. States — Jurisdiction Over Ohio River. — The concurrent jurisdiction granted to Kentucky and Indiana by the compact of 1789 between Virginia and Kentucky over that portion of the Ohio river which flows between them, does not include the sovereignty or ownership of the river; it was conferred, not for the purpose' of destroying the title of either sovereign, but to render more efficient the policing of the stream.</p> <p>7. States — Jurisdiction Over Ohio River. — The concurrent jurisdiction granted to Kentucky and Indiana by the compact of 1789 between Virginia and Kentucky, over that portion of the Ohio river which, flows between them, means the jurisdiction of each state, acting separately in the execution of its own laws, and not the jurisdiction of the two states acting jointly in the execution of laws agreed upon by both states.</p> <p>8. Fish — Police Power of State With Reference to Fish and Game.— By reason of a state’s control over fish and game within its limits it is within the police power of its legislature, subject to constitutional restrictions, to enact such general or special laws as may be reasonably necessary for the protection and regulation of the public’s right in its fish and game, even to the extent of restricting the use of, or right of property, in the game after it has been taken or killed.</p> <p>9. Fish — Constitutional Law — Act for Protection of Fish and Game — • Ohio River as Boundary. — Chapter 29 of the acts of 1916 (Acts 1916, 340), entitled “An Act for the protection of fish; providing methods for catching thereof, and fixing penalties for violation thereof,” is constitutional in its application to persons fishing in the Ohio river where it forms the boundary between Kentucky and Indiana, although Indiana has never agreed or consented to the act, and has no statute of the same import.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>1. 'Life Estates — Sale of Fee — Effect.—Where a life tenant, under the belief that he owned a fee, orally divided the land between the remaindermen and afterwards executed deeds to two of them and purchased another tract of land and had it deeded to the third remainderman, the latter will not be adjudged to have accepted such tract of land so conveyed to him when it was paid for with one¡-third of the amount of money arising through the sale of timber by the life tenant off of the entire tract, as the transaction will be given the effect only of settling-with such remainderman for his’ part of the money realized from the timber, unless the evidence shows a contrary agreement, which is not found in this case.</p> <p>2. Remainders — Division Among Remaindermen — Limitation of Astions. — When at the time such division was made it was equal among the heirs as to quantity and quality', and also acquiesced in for nearly thirty years, it will not be disturbed after the death of the life tenant in a suit by one of the remaindermen to partition the land, but each one will be adjudged that portion which had been allotted to him in the division, and the one accepting the deed to the tract purchased with the timber money will be allotted that portion remaining after the others had obtained their parts.</p> <p>3. Remainders — -Remaindermen—Accounting for Rents.- — In such a. suit- those occupying the portions allotted to them in such -a division should not be made to account for rents or to respond in damages for timber removed from the portions which they received in such allotment.</p> <p>4. Appeal and Error — Pleading.—An offered pleading not permitted to be filed cannot be considered unless made a part of the record, either by an order of court or by bill of exceptions.</p>

<p>1. Sales — Construction of Contract. — Two distinct classes of articles having been enumerated in a separate clause of a contract of sale, followed by the words “and other stocks and supplies,” these words held to mean other stocks and supplies of the same kinds as those enumerated.</p> <p>E. Sales — Construction of Contract. — Plaintiff having sold to defendant all he had of certain articles could not enforce acceptance of a less quantity.</p> <p>3. Sales — Rights of Seller. — The seller having delivered to the purchaser certain articles covered by the contract of sale, accompanied with an invoice at a greater price than the market value, which was the contract price, the purchaser is not bound to return the articles or pay the invoice price, but may retain same with no other liability than the contract price, with interest from date of delivery.</p>

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

<p>1. Partnership- — Compensation of Partner. — The rule in respect to compensation between partners is that in the absence of clear and convincing evidence of a contract, compensation will not be allowed merely because one partner renders more service in connection with tbe firm’s business than the other.</p> <p>2. Interest — Adding Interest to Principal Sum and Collecting Interest on Both. — It is not a violation of the usury laws to add to the amount of a debt interest thereon at six per cent, for one year and take a note for the debt and interest due in one year, bearing six per cent, interest after its maturity.</p>

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

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

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

<p>1. Boundaries — Description—Original Plat as Evidence. — The original plat constituting the basis of a patent is competent as evidence to explain a mistake or ambiguity in the description given by the; patent of the land granted, or to supply the omission by such description of a course, distance or object necessary to correctly determine and fix its boundary.</p> <p>£. Boundaries — Description—Mistake in Call Corrected From Original Plat. — A call in a patent will be corrected to correspond with that given on the orginal plat where it appears that without the correction certain well defined corners would be missed and the survey would not close.</p> <p>S. Boundaries — Evidence—Estoppel.—The fact that defendant eighteen years before the institution of the action, when -he himself entertained doubt as to his ownership of the land in controversy, failed to object to the 'cutting by another of timber thereon, did not affect the true location of its boundary or .militate against his right to thereafter claim ownership and maintain, adverse possession of the land.</p> <p>4. Appeal and Error — Review—-Estoppel—Question of Fact. — -Finding of Court — When Not Disturbed on Appeal. — On a plea of estoppel in an equitable action, there being conflicting evidence as to the statements of defendant relied on to establish' the estoppel and the chancellor having refused to sustain the plea, this court will not disturb his finding where after review of the evidence it is in doubt as to the truth of the matter.</p> <p>5. Quieting Title — Proceedings—Evidence—In an action in equity to quiet title to a disputed boundary, evidence held to establish defendant’s title as the superior.</p>

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

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

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

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

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

<p>1. Corporations — Ownership of Stock in Other Corporations — Effect of. — No matter how much stock one corporation owns in another, it is not by reason of its ownership of stock liable for the negligent acts of the corporation whose stock it owns unless it really operates the corporation.</p> <p>2. Corporations — Control of the Affairs of One Corporation by Another —Effect of. — Although one corporation may by reason of its ownership of a majority of the stock in another corporation exercise a superintending control over its affairs, this control will not charge the corporation with liability for acts of negligence committed by the other corporation unless it really operates it.</p> <p>3. Corporations — Two Corporations Having 'Same Officers — Effect of. — The fact that the general officers of two corporations are the same, will not make either liable for the negligence of the other.</p> <p>4. Corporations — Stockholder in Incompetent to Testify Against Dead Person. — Under section 606 of the Civil Code a stockholder in a corporation has such a pecuniary interest in the corporation as to disqualify him from testifying for it concerning any verbal statement of or transaction with a person who is dead when the testimony is offered.</p> <p>5. Master and Servant — Liability of Employing Master for Injury to Servant While Working for Another ■ Person. — If a servant is injured while performing a service for another than his employer, the employing master will be liable to the servant if the employment in which the servant was injured was such as arose out of ' his employment.</p> <p>6. Master and Servant — Liability of Master on Adcount of Injury to Servant While Working for Another — Evidence.—Where a servant was employed and paid by one corporation and under this employment was required to and did perform service for another corporation in the course of which he was injured, evidence that the employing corporation engaged his services and paid him was sufficient to take the case to the jury, although as between themselves each corporation paid for the services the servant rendered to each.</p>

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

<p>1. Kailroads — Operation — Accidents at Crossings — Lookouts. — A railroad company may operate its trains at any speed, consistent with.' the safety of its passengers over private crossings, in the country, and it is not required to give any warning of the train’s approach, or to maintain a lookout for persons upon the track or dangerously near to it at such crossings, unless it has been customary for the railroad to give signals of the approach of its trains to such crossings, or the crossing is a place where the presence of persons on the track is to be expected, and therefore to be anticipated, and the latter fact can be shown by proof, that the public generally uses the crossing, with the acquiescence of the railroad company.</p> <p>2. Railroads — Private Crossings — Ordinary Care. — At private crossings, where no lookout duty is imposed upon the ones operating a railroad train, they are required to use ordinary care, by all the means at hand, to avoid injury to persons upon the track, when they shall have discovered their peril.</p> <p>3. Railroads — Negligence.—For one, who knows and sees, or by the exercise of ordinary care for his own safety, could see and know that a railroad train is rapidly approaching, to go upon the track immediately before the train is such negligence, as will bar a recovery for any damages suffered by him because of collision with the train.</p>

<p>1. Deeds — Construction—Estates Created — Estates for Life. — Under a deed from a husband to his wife “and her bodily heirs” by him, reciting that it is made in consideration of his love and affection for his wife and children, the term “bodily heirs” was evidently used synonymously with “children,” and the deed must be construed as granting to the wife an estate for life with remainder to her children by the grantor.</p> <p>£. Fraudulent Conveyances — Notice—Purchasers for Value — When Protected — Limitation.-—A conveyance which is actually fraudulent as to the grantor’s creditors is void as to subsequent purchasers for value ffom the grantor, such ¡purchasers not being affected by either actual or constructive notice of the conveyance; and a conveyance which is merely voluntary and, therefore, only constructively fraudulent, is void as to such purchasers, unless they have actual notice of the conveyance, constructive notice not being sufficient to affect them. But the protection thus afforded to purchasers for value is only for a limited period, and whether the conveyance be actually or constructively fraudulent, the title of the grantee is perfect after the lapse of ten years, as any action to set aside such . a conveyance is barred after that time; and a purchaser is then as much bound to take notice of the prior voluntary or fraudulent conveyance as if the grantee had been an innocent purchaser for value.</p>

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

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

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

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

<p>1. Indictment and Information — Time of Offense. — When time is not of the essence of the offense, the only requirement in an indictment is that it shall show that the offense was committed before it was found.</p> <p>2. Indictment and Information — Sufficiency.—When the indictment alleges that the offense was committed on the same day that it was returned but refers to the acts constituting the offense by-the use of verbs of the past tense, it sufficiently shows that the commission of the offense occurred anterior to the finding of the indictment.</p> <p>3. Criminal Law — Appeal and Error — Discretion of Court. — The trial court is vested with a discretion as to whether he will want the testimony on the trial of a criminal case taken and transcribed by the official court stenographer, and it is not reversible error when such discretion is exercised without abuse.</p> <p>4. Criminal Law — Challenges to Panel. — Under section 281 of the Criminal Code challenges to the panel, which includes the method of summoning the jury, are not subject to exceptions and cannot be reviewed by this court.</p> <p>5. Criminal Law — Evidence as to One’s Age. — It is competent for one to testify as to the information which he has received concerning his age, but such information must have been given by one who stood in such a position as to produce the presumption that he knew as to the truth of the matter.</p> <p>6. Criminal Law — Witnesses.—Where a question is competent and is, answered by the witness but subsequently an objection is sustained to the question without withdrawing the answer of the witness from the jury, the error in sustaining the objection to the question cannot be considered to be prejudicial, as the effect of the testimony has been given to the jury by its not being withdrawn.</p> <p>7. Adultery — Indictment for Adultery — Instruction.—Even if the offense of adultery is a lower degree of that for carnally knowing a female under the age of sixteen years, it is not error to instruct upon it when the intercourse is denied in toto by both parties upon a trial under an indictment for the latter offense.</p>

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

<p>1. Appeal and Error — Bill of Evidence. — In the absence of a bill of evidence, it will be presumed there was sufficient proof to sustain the action of the court in submitting the case to the jury.</p> <p>2. Trial — General Verdict. — A general verdict is that by which the jury pronounces generally, upon all the issues, for the plaintiff or for the defendant.</p> <p>3. Appeal and Error — Verdict—Sufficiency.—A verdict will not generally be held invalid for mere informality, if its meaning is sufficiently intelligible to be the basis of a legal judgment, or, if it can be made definite and certain without resorting to facts aliunde, as by reference to the pleadings, evidence, or record.</p> <p>4. Appeal and Error- — -Insufficiency of Verdict. — If a verdict be so uncertain that it cannot be clearly ascertained whether the jury meant to find the issue or not, or what issue they meant to find, and when the verdict, could not be conclusive upon either issue, it is insufficient.</p> <p>6. Costs — Jury May Not Award. — A litigant’s right to recover costs in an ordinary action is controlled by section 889 of the Kentucky Statutes; and, being a question of law, a jury is without authority to award costs.</p> <p>6. Trial — When Verdict Void. — Where, in an action by the plaintiff for damages, the defendant counter-claimed for damages, and the jury returned a verdict saying, “We, nine of the jury, agree for each party to pay their cost,” the verdict failed to -pass upon any issue submitted to the jury, and was void.</p> <p>7. Appeal and Error — Verdict.—A litigant is not required to object to a void verdict in order to enable him to question its validity.</p>

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

<p>1. Boundaries — Location of Patent — Evidence.—Evidence examined and held that it sustains the contention of appellant as to the correct location of an old patent- which calls for no monuments except trees, all of which are gone except the stump of one walnut tree called for as a corner and verified by two junior patents calling for the walnut as a corner, and one other patent calling for a line of the old patent and supported by testimony that the walnut stump was recognized by adjoining land owners as such -corner.</p> <p>2. Boundaries — Location of Patent — Evidence.—A location that is not made by actual survey upon the land of the courses and distances called for in a patent but that results from simply making a plat of the calls in the patent and then attempting to place this plat upon a map made of a survey of the creeks and branches within the boundary as shown upon a copy of the plat accompanying the original survey upon which the patent issued, without evidence that the branches and creeks were accurately shown upon the copy of the original survey, cannot be accepted as a correct location of the patent.</p>

<p>1. Criminal Law — Evidence—Admissions of Accused — When Competent. — Testimony of an accomplice as to an admission by the accused of his guilt, corroborated by that of a third person in whose hearing it was made, is competent evidence against the accused, although the admission was made in an interview between the accomplice and accused arranged by the former and the third person concealed for the purpose of hearing the admission; it appearing that the admission was not influenced by threats or promises of reward by anyone having the accused in charge.</p> <p>2. Criminal Law — Appeal and Error — Ruling as to Indictment not Subject to Review. — In a criminal prosecution the Court of Appeals is precluded by section 281, Criminal Code, from reviewing on appeal the refusal of the trial court to quash the indictment, that section declaring that the decisions of the trial court upon motions to set aside an indictment shall not be subject to review.</p> <p>3. Arson — Evidence—As to Insurance on House Burned is Substantive. — In a prosecution under section 1169, Kentucky Statutes, making it a felony to burn a house upon which there is insurance, evidence that the house was insured is necessary to establish the guilt of' the accused, hence testimony of an insurance agent to that effect was competent as substantive evidence, and the court was not required to admonish the jury that it was competent only for the purpose of establishing motive.</p> <p>4. Criminal Law — Appeal and Error — Preservation of Grounds on Trial — Failure to Admonish Jury. — Defendant cannot on appeal take advantage of the failure of the trial court to admonish the jury as to the effect of certain evidence, where it does not appear from the record that he at the time called the court’s attention tó the error or requested it to give such admonition.</p> <p>B. Criminal Law — Punishment—Statutory Provision — What Law Governs. — The law in- force at the time the crime was committed must control the trial court in giving its instructions and the jury in fixing the punishment of the accused, if found guilty, hence where the indeterminate sentence law was in force when the crime was committed, the punishment of the accused was properly fixed thereunder.</p> <p>6. Criminal Law — Trial—Instructions—Definition of Terms' Not Used in Instructions Unnecessary. — In a criminal prosecution it is not necessary for the trial court to define terms not appearing in the instructions.</p> <p>7. Criminal Law — Definition of Terms. — Where an instruction on conspiracy so clearly stated the law that the jury could not have failed to understand the legal meaning of the word “conspiracy,” it was not necessary to define it in the instructions.</p> <p>8. Criminal Law. — While the words “willful,” “willfully,” “maliciously,” and “feloniously,” appearing in the instructions, might properly have been defined by the 'trial court, failure to do so will not authorize a reversal where the instructions aptly stated the law.</p> <p>9. Criminal Law — Instructions—Reasonable Doubt. — In a criminal prosecution an instruction worded, “Unless the. jury believe from all the evidence beyond a reasonable doubt that the defendant has been proven guilty, they will find him not guilty,” held to substantially follow the language of section 238, Criminal Code.</p> <p>10. Arson — Sufficiency of Indictment. — In a criminal prosecution under section 1169, Kentucky Statutes, denouncing the willful and unlawful burning of a building upon which there is any insurance, the indictment alleged that the building burned was insured, but not that it was insured against loss by fire; held, that without the latter allegation the indictment stated a public offense, hence such omission was not ground for arrest of judgment.</p> <p>11. Criminal Law — Evidence—Testimony of Accomplice — Sufficiency of when Corroborated. — The testimony of an accomplice, corroborated in part by defendant’s own testimony, by testimony of a third person as to admission of guilt made by defendant in his hearing, and by other evidence tending to show the commission of the crime, the circumstances thereof, and to connect defendant with its commission, is sufficient, under section 241, Criminal Code, to warrant a conviction.</p> <p>12. Arson — Evidence—Sufficiency.—In a prosecution for conspiracy to burn and burning of a house upon which there was insurance, held that the evidence established both the conspiracy and commission of the crime contemplated, and is sufficient to authorize the verdict of guilty.</p>

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

<p>1. Divorce — Alimony—Appeal and Error. — Though the Court of Ap- ■ peals has no power to reverse a decree of divorce, - it may consider the correctness of the decree and the circumstances under which it was rendered, for the purpose of determining whether or not the alimony theretofore granted to the wife was properly reduced by the court.</p> <p>2. Divorce — Living Apart for Five Years — Fault of Parties. — Section 2117, subsection 2 of the Kentucky Statutes, makes living apart, without any cohabitation for five consecutive years next before the application, an absolute ground for divorce, regardless of the fault of the parties.</p> <p>3. Divorce — Living Apart for Five Years — Wife’s Right to Maintenance and Support. — Where the living apart is due to no fault of the wife but is due altogether to the fault of the husband, a divorce on the ground of living apart, without any cohabitation for five consecutive years next before the application, will not relieve the husband of the obligation to support his wife and children.</p> <p>4. Divorce — Alimony.-—A wife sued her husband for alimony and maintenance for herself and children. She was awarded $50.00 per month and the right to occupy the homestead. Several years later the husband sued the wife for absolute divorce, on the ground of five years’ separation. The court discontinued her right to occupy the homestead and reduced her allowance to $15.00 per month for four years and $10.83 for two years. At that time the husband was making $50.00 per month: Held, that the wife’s right to occupy the homestead was improperly discontinued, and that the husband should pay to the wife $15.00 per month for a period of eight years.</p> <p>5. Homestead — Bankruptcy—Sale of Homestead — Judgment—Parties —Conclusiveness.—Where a wife is not a party to a bankruptcy proceeding instituted by her husband, her right to occupy a homestead allotted to her by the state court several years before the bankruptcy proceeding, in a suit against her husband for alimony and maintenance, is not concluded by the judgment of sale in the bankruptcy proceeding.</p> <p>6. Bankruptcy — Sale of Real Estate — Outstanding Equity — Title, of Purchaser.- — -Where, in a suit in the state court against her husband for alimony and maintenance, the wife was allotted a homestead in her husband’s property several years before the institution of bankruptcy -proceedings by the husband, to which she was not a party, the purchaser of the homestead in the bankruptcy proceedings acquires title subject to the outstanding equity in favor of the wife, and his title is not perfected by a judgment of the state court discontinuing the homestead right, though rendered prior to the sale in bankruptcy, where the wife in due time prosecutes an appeal and obtains a reversal of the judgment with directions to enter judgment continuing her homestead right.</p>

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

<p>1. Pleading — Fatal Variance Between Pleading and Proof. — Where a servant in his petition sought to recover damages for personal injuries sustained in his capacity of machine foreman while performing the duties of that place, and in his evidence said that he did not sustain the injuries while acting in his capacity of machine foreman, there was a fatal variance between the pleading and proof within the meaning of section 131 of the Civil Code.</p> <p>2. Master and Servant — Volunteer.—Where a servant who was employed as machine foreman, was injured by going to a place in the mine where an explosion' occurred, when his duties as machine foreman did not require him to go there, he was acting purely as a volunteer and the master was not liable.</p> <p>3. Mines and Minerals — Mine Foreman — Assistant Mine Foreman.— It is provided in section 2726 of the Kentucky Statutes that assistants to the mine foreman may be employed by the operator or superintehdent, but if the mine foreman should employ an assistant and this assistant, with the knowledge or acquiescence of the mine operator or superintendent, should act in this capacity, this knowledge of and acquiescence in what the mine foreman did and what his assistant was doing would .constitute an approval of the appointment of the assistant by the mine foreman and put the assistant in the same attitude as if he had been employed by the operator or superintendent.</p> <p>4. Master and Servant — Injury to Servant by Negligence of Person Acting for Foreman. — Where a foreman who has authority to do so, puts another in charge in his place during his absence, such other person for the time being takes the place of the foreman, and the master will be liable to a servant who sustains injury by reason of the negligence of the person who was acting in the place of this regular foreman.</p> <p>5. Mines and Minerals — Mine Foreman — Mine Owner Not Liable for Injury to. — The mine owner is not liable for an injury to the mine foreman that is not caused by negligence on its part.</p>

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

<p>1. Explosives — Duty to Exercise Reasonable Care in Handling. — It is the duty of one keeping or storing dynamite or other explosives upon his premises to exercise reasonable care that they be not exposed or so stored or kept as that they may be accessible to children or persons of immature age who may rightfully be upon the premises, or who may trespass upon the premises, if the one storing the explosive has knowledge that such trespasses have theretofore been committed or are liable to be committed through the childish or immature instincts of the trespasser.</p> <p>2. Explosives — Injuries Prom Accidental Explosion. — The negligence of the one storing the explosive should be, in order to hold him liable, the proximate cause of any consequent injury, and he will not be liable if there is any intervening responsible cause between his act of negligence and such injury.</p> <p>3. Explosives — Proximate Cause. — Proximate cause is one which a natural sequence, uninterrupted by any independent cause, produces the result complained of, and this is not affected by a continuity of events not amounting to an independent cause between the original act and the injury, or .as to the time intervening between the two.</p> <p>¡i. Explosives — Proximate Cause. — Where a boy “about 14 years of age” obtained dynamite caps from the premises where stored under such circumstances as would make the storer of the caps negligent, and he afterwards delivered them to another who was incapable of appreciating the danger and who sustained injuries by a subsequent explosion, it will not be presumed, in the absence of an allegation to the contrary, that the 14-year-old boy was incapable of appreciating the danger because of his age alone, or that his acts did not constitute an independent cause and therefore the proximate cause of the injury, relieving the negligence of the storer of the dynamite of being the proximate cause of the injury.</p>

<p>1. Fraud — Pleading—Sufficiency.—Where fraud is relied on as a ground of action or defense, the petition or answer alleging the fraud is good if it sets forth facts showing the fraud, though it be not directly alleged that the acts complained of were fraudulent, nor the term fraud used in the pleading.</p> <p>2. Cancellation of Instruments — Pleading—Sufficiency.—In an action in equity to cancel a deed on the ground of fraud practiced upon the grantor by the grantee in procuring it, where the petition alleges facts sufficient to show that the grantee stood in a confidential relation to the grantor, who was old, ignorant and infirm, and by reason of such relation obtained of her an unconscionable advantage, such petition states a cause of action and the burden is u-pon the grantee to show that the deed was understandingly executed by the grantor.</p> <p>3. Deeds — Inadequacy of Price — Fraud.—Where the consideration recited in a deed consists of $25.00 in cash, the burial expenses of the grantor and a tombstone over her grave, and the value of the land conveyed is alleged to be $1,000.00, the deed also conveying household goods, notes and jewelry of some value, the evident gross inadequacy of the consideration will be regarded as a badge of fraud, facts being also alleged to show that the grantee stood in a confidential relation to the grantor.</p> <p>4. Cancellation of Instruments — Pleading—Sufficiency.—In an action in equity to cancel a deed on the ground of fraud practiced on the grantor by the grantee in procuring it, held, that the averments of the petition as amended presented a state of facts manifesting the fraud and undue influence on the part of the grantee in procuring the deed, hence a demurrer to the petition should have been overruled.</p>

<p>1. Adverse Possession — Holding by Against Commonwealth. — The right that the Commonwealth may have in vacant and unappropriated land to issue a patent therefor will be divested by such adverse holding of such land as would toll the right of entry of an individual having the title and constructive possession.</p> <p>2. Adverse Possession — Limitation Against the Commonwealth. — - Under section 2523 of the Kentucky Statutes limitation runs against the Commonwealth in the same manner as it runs against an individual, and the title of the Commonwealth to land undisposed of by it is the same as the title of a patentee followed by constructive possession only. The statute begins to -run against the Commonwealth at the same time that it would begin to run against an individual, and the acts necessary to start and keep the statute in motion against an individual are necessary to start and keep it in motion against the Commonwealth.</p> <p>3. Adverse Possession — Owner in Actual Possession of Land to Which He Has Title — When Can Claim Land Outside of His Title by Adverse Possession.- — A person who resides on land to which he has a good title cannot hold under the law of adverse possession land outside of that to which he has a good title without making an actual entry on the land outside of his title and remaining in the actual possession of it for such length of time - as would give him the right to hold it by adverse possession.</p> <p>4. Adverse Possession — Elements of. — To constitute adverse possession there must be such open and notorious acts of physical possession as would put the owner of the land upon notice that a hostile claim is asserted to his title. The surveying and marking of a boundary, the payment of taxes, as well as occasional entries for the purpose of cutting timber or for other temporary uses, are incidents of adverse possession, but neither one nor all are sufficient in themselves to constitute adverse holding so as to defeat the title of the true owner.</p>

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

<p>1. Carriers — Passengers—Duty of Carrier. — It is the duty of a railroad company to provide its passengers with reasonably safe and convenient facilities for leaving its cars.</p> <p>2. Carriers — Passengers — Contributory Negligence — Question for Jury/ — -In a passenger’s action against a carrier for injuries alleged to have been caused by the failure of the carrier to provide reasonably safe and convenient facilities for leaving its cars, evidence considered, and held that the questions whether plaintiff took the chance of a known peril, or was guilty of contributory negligence, was for the jury.</p>

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

<p>1. Witnesses — Testimony of Persons Interested — Nature of Exclusion. — A party cannot testify in favor of a coparty where the interest of the coparties are joint and so connected that all must succeed or fail together.</p> <p>2. Deeds — Parol Evidence Inadmissible to Contradict. — The language being certain and plain in both a deed and release executed in the settlement of an estate by the parties interested therein, and there being no allegation of fraud or mistake in the execution of either instrument, parol evidence is inadmissible to contradict, add to or vary the terms of the settlement as expressed in the deed and release considered together.’</p>

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

<p>1. Criminal Law — Sufficiency of Warrant. — The offense charged in a warrant need not be described with the same technical strictness, that is required in an indictment. All that is ordinarily necessary is to follow the form prescribed by section 27 of the Criminal Code and merely name the offense charged. It is not necessary to add that the offense charged is contrary to a particular ordinance or statute.</p> <p>2. Criminal Law — Sufficiency of Warrant. — A warrant charging the defendant with the offense “of selling milk in the city of Owensboro without a permit from the food inspector, and failing to have his cows examined by a veterinarian, in said city on or about the .... day of June, 1915,” is valid when issued pursuant to a valid ordinance.</p> <p>3. Municipal Corporations — Ordinances—Construction of the Constitution. — Section 168 of the Constitution providing that “no municipal ■ ordinance shall fix a penalty for violation thereof at less than that imposed by statute for the same offense,” does not apply where the offense under the ordinance is different from that prescribed by statute.</p> <p>4. Municipal Corporations — Ordinances—Title—Single Subject Expressed in Title — Construction of Constitution — Constitution, section 51, providing that “no -law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title,” applies only to laws enacted by the general assembly ■and not to municipal ordinances.</p> <p>5. Food — Regulating Sale — Municipal Corporations — Police Power.— Under charter provisions conferring on common councils of cities of the third class the power ■ “to make all police regulations to secure and protect the general health, comfort, convenience, mor- ; ais and safety of the public,” and to “provide for and regulate the j inspection of milk, butter, lard and other provisions,” such cities have the power to pass an ordinance, fixing the standard of quality of milk sold, regulating the care and feeding of milch cows and the manner of handling-and conveying the milk, and prescribing other reasonable conditions under which the dairyman shall have the right to sell in the municipality.</p> <p>6. Food — Regulating Sale — Municipal Corporations — Ordinances — Validity. — It is within the police power of a city of the third class to require, as a condition precedent to the right to sell milk in the city, that the applicant shall state on oath that his cows have been subjected to the tuberculin test and the result thereof, and that he will comply with the provisions of the ordinance regulating the sale of milk.</p> <p>7. Food — Regulating Sale-r-Municipal Corporations — Police Power.— An ordinance which provides that persons offering milk for sale shall thoroughly wash and wipe their hands and the cows’ udders before beginning to milk; that they shall not use pails, cans, etc., until they have been thoroughly washed with hot water and'soap, and afterwards sterilized with boiling water or steam; and that the dairyman shall cover his pails, cans, etc., with sterilized absorbent cotton between two layers of sterilized gauze, through which the milking shall be done, is not unreasonable or oppressive.</p> <p>8. Food — Regulating Sale — Municipal Corporations — Police .Power.— An ordinance providing that dairymen must refrain from milking or handling milk in any way, when in themselves, or their families, there is even a suspicion of any contagious or infectious disease, such as smallpox, scarlet fever, diphtheria, typhoid, tuberculosis, or the like, should be given a practical construction and read as if the word “reasonable” were inserted before the word “suspicion,” and when so construed is a proper exercise of the police power.</p> <p>9. Food — Regulating Sale — Municipal Corporations — Police Power. — ■ Since a municipality has the power to prescribe the standard of milk sold therein, an ordinance providing that the milk so sold shall not contain over 300,000 bacteria per cubic centimeter, or any pathogenic bacteria of any kind, will not be held unreasonable or oppressive, in the absence of convincing evidence to the effect that it is practically impossible for dairymen to furnish milk of the standard required.</p> <p>10. Food — Regulating Sale — Municipal Corporations — Police Power.— An ordinance providing that wagons used in delivering milk shall be furnished with covers and shall be neat and clean, and to that end the interior thereof shall be scrubbed with soap and water at least twice a week; that the wagons shall be kept neatly painted, and that no vegetables or waste products shall at any time be hauled in any wagon used in the transportation of milk, is not unreasonable or oppressive.</p>

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

<p>Appeal and Error — Incomplete Record — Rule 20. — For the purpose of complying with rule 20 of court requiring appellant to file the record when he makes his motion for an appeal in cases involving less than $500.00, the appellant may file less than the complete record.</p>