Volume 173 — Kentucky Reports

<p>1. Master and Servant — One Riding Upon Engine While Learning Duties of Fireman — Employers’ Liability Act — When One Ceases to be Employe Under. — One, who has been granted the privilege, by a railway carrier engaged in interstate commerce to ride upon the engines drawing its trains, to learn the duties of a fireman, is an employe of the carrier, within the meaning of the Federal Employers’ Liability Act, while he is engaged, in performing the duties, which are expected of him and within the scope of his employment, and his services are being accepted by the carrier, although he receives no wages for his services and may abandon his employment at any time, and the carrier may, at any time, withdraw its permission to ride upon its engines, but having no time fixed within which he will exercise his privilege, when he is not engaged in the duties expected of him, and not where his employment requires him to be, he ceases to be an employe- within the meaning of that act.</p> <p>2. 'Master and Servant — Employe of Carrier. — Before one becomes an employe of a railway carrier, the relation of master and servant must exist between him and the carrier.</p> <p>3. Master and Servant — How Relation Based. — The relation of master and servant is based upon a contract, either express or implied.</p> <p>4. Master and Servant — Federal Employers’ Liability Act. — The Federal Employers’ Liability Act 'deals only with the liability of a carrier engaged in interstate commerce for injuries sustained by-employes, while engaged in such commerce.</p> <p>6. Master and Servant — Liability of Carrier Engaged in Interstate Commerce. — The liability of a railway carrier engaged in interstate commerce to its employes engaged in such commerce is 1 based upon the duty the carrier to furnish its employes reasonably safe places in which to perform the work required of them, and while they are in those places, wherein they must necessarily be in connection with their work, but this duty does not extend to a servant, when he is at a place where he is not required nor expected to be in the performance of his work, nor when he is not within the scope of his employment.</p>

<p>1. Wills — Construction.—A devise to one for life which also gives to the devisee the unconditional and unrestricted control over the property during the life of the devisee, is a devise in fee; but an express devise of a life estate coupled with an unlimited power of disposition of the remainder by will, only passes to the first taker a life estate, and if he fails to exercise the power of disposition, the remainder at his death is undevised property and passes to the heir at law of the testator.</p> <p>2- Insurance — Death of Beneficiary Before Insured. — Under the provisions of section 655, Kentucky Statutes, although the beneficiary in a policy of insurance may die before the insured, upon his death the policy is payable to the legal representatives of the beneficiary as against the estate of the insured.</p> <p>3. Insurance — Beneficiaries—Change of. — In the absence of any authority given in the policy or the charter, of the company issuing it, the insured has no authority either before or after the death of the beneficiary to change the beneficiary named therein.</p> <p>4. Insurance — Assignment of Policy. — A provision -in such a policy that any assignment of the policy shall be attached thereto and a duplicate furnished the company, does not contemplate that the insured may assign the policy without the consent of the beneficiary.</p> <p>5. Wills — Construction—Assignment of Insurance Policy. — Where a testatrix devises her whole estate in trust for the use and benefit of her husband during his life and gave to her trustee and executor complete power to sell and dispose of any of her property, and full and complete power at any time to pay over to her husband for his own use.and benefit any part of the principal of her estate whenever, in the judgment of the executor, it might be necessary to use the same for the support and maintenance of her husband, and that his receipt to her executor should be an acquittance and discharge to said executor from any liability on account of such payment, it was within the power of the executor, after the death, of the testatrix, and before the death of the husband, to assign to the husband a life insurance policy payable to the testatrix upon the written request of the husband, and such assignment passed the title to the husband.</p>

<p>Intoxicating Liquors — Licenses—Tavern Keepers — Power to Grant —Different Jurisdictions. — The power to grant a tavern license, in a city of tbe fifth class is vested in the municipality, and not in the county court of the county in which such a - municipality is located.</p>

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

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

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

<p>1. Exceptions, Bill of — When Judge Refuses to Bermit Ruling to Appear in Record — Bystanders’ Bill. — If the trial judge refuses to permit counsel to make a part of the record, or put on the order hook, his objections to the manner in which the jury is selected, or to make a part of the bill of exceptions, or put on the order book, his timely objections or exceptions to any other action or ruling, counsel should prepare a bystanders’ bill setting out the matter complained of in the manner provided in section 337 of the code and file it in this court as a part of the record.</p> <p>2. Exceptions, Bill of — Objections—Right of Counsel to Save Exceptions. — Counsel has the right, not as a matter of favor on the part of the judge, but as a privilege conferred by law, to make objections and save exceptions in proper form to every material ruling of the trial judge to which he desires to except or object, and to have the same appear in the record. The trial judge has no discretion or authority to refuse to permit counsel to make such objections and exceptions as he desires to make, or to refuse to permit the same to be made a part of the record.</p> <p>3. Exceptions, Bill of — Appearing for First Time in Motion for New Trial Not Available. — Objection to the manner in which the jury is being selected should be made at the time, and error in this respect will not be available if it appears for the first time in the motion and grounds for a new trial.</p> <p>4. Jury — Selection of — Bystanders—Proper Practice in Objecting to. —Objection to bystanders on a jury should be made at the time the jury is being selected and should be supported by affidavit setting out the reasons why the objection is made.</p> <p>5. Master and Servant — Children—Employment of Under Age of Sixteen. — Under section 331a of the Kentucky Statutes, the employment of a child under sixteen years of age in or about a mine is forbidden.</p> <p>6. Death — Injury to Minor — Right of Parent to Recover — Pleading.—. Where the father of a child employed in violation of the child labor statute is the sole beneficiary of a recovery, and he consents that his child may work in violation of the statute, he cannot recover damages for the death of the child, but this defense should ■ be specially pleaded. .</p> <p>7. Evidence — Life Tables — Appeal and Error. — When life tables are ' admitted as evidence and either party requests it, the court should at the time admonish the jury that they are admitted for the purpose only of showing the probable duration of life and may be considered with all other testimony on this point. But the failure to so admonish the jury is not in every case prejudicial error.</p>

<p>1. Statutes — Construction.—No right created by a statute will be construed to exist without any limitation for its enforcement, unless the language used will permit of no other interpretation.</p> <p>2. Taxation — Assessment—Correction of Tax Lists by Assessor — ■ Limitation of Actions. — The correction of tax lists by the assessor for cities of the first class, as provided in the first part of section 2991, a part of the charter of such cities, cannot be made after five years from the time the property should have been first assessed, unless in the meantime a suit has been filed for the collection of the taxes, when such correction may be made at any time before judgment in the case, and the true owner of the property as shown by the correction may be made a party to the proceeding by amendment.</p>

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

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

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

<p>1. Deeds — Breach of Conditions — Reversions—Construction.—A deed conveying a tract of land to the trustees of a common school district and reserving the reversion of the title to the grantor and his heirs should the property cease to be used for public school purposes, construed, and held to provide for a reverter in case the property ceased to be used for white school purposes, in view of the fact that the grantees were white school trustees and had no control over colored schools, nor power to use white school property for colored school purposes.</p> <p>2. Deeds — Breach of Conditions — Reversions.—Under a deed conveying a tract of land to common school trustees and providing for a reversion of the title to the grantor or his heirs when the property should cease to be used for public school purposes, which was to be determined when the district, through its lawful authorities, should select, locate and estabiish a public school house elsewhere, the title reverts when the proper school authorities locate and establish another public school for white children in the district and use the property conveyed by the deed for colored school purposes.</p> <p>3. Deeds — Breach of Conditions — Reversions.—Under such a deed the use of the property as a storage place for school materials for white children, or as a meeting place for the division hoard of education acting in behalf of white children, will not prevent a reverter, since the object of the deed was to convey the site for the purpose of conducting a school thereon and not as a mere storage or meeting place.</p> <p>4. Constitutional Law — Obligations of Contracts. — Kentucky Statutes, section 4437, providing that any reversionary interest in land now used as a school site will not deprive the districts of the school house or improvements thereon, is invalid as to reversionary interests created by deeds executed prior to its enactment, since, under such deeds, the right of reversion carries with it the right to the improvements, and the statute, therefore, violates' the obligations of such contracts.</p>

<p>1. Sunday — Doing Business On In Violation of Law. — The keeping open of a place of business on Sunday at which soda water, soft drinks, coca cola, cigars and tobacco, sandwiches, various kinds of canned goods, cheese and crackers, fruits and candies are sold, is doing business on Sunday in violation of section 1321 of the Kentucky Statutes.</p> <p>2. Sunday — Violation of Sunday Statute — When Question One of Law or Fact. — When there is no room for difference of opinion as to whether the doing of the work or business complained of was a work of necessity, the question whether the Sunday statute has been violated is one of law for the court; but if there is room for reasonable difference of opinion as to whether the work or labor engaged in was necessary, it is a question of fact to be determined by the circumstances of the particular case.</p> <p>3. Sunday — What Are Works of Necessity Within Meaning of Statute. — The keeping open for business of a hotel, boarding house or restaurant on Sunday for the exclusive purpose of furnishing food for the public is a work of necessity within the meaning of the Sunday statute providing that “no work or business shall be done on the Sabbath day except the ordinary household offices or other work of necessity.”</p> <p>4. Sunday — Works of Necessity — What Are. — The necessity that will excuse engaging in work or business on Sunday need not be a physical necessity or an imperative or overpowering necessity. It need only be a reasonable necessity and one that is created by some real or unexpected emergency or uncommon or extraordinary condition. It must be something that not to do would work a hardship, or loss, or unusual discomfort, or inconvenience either to the individual who does the thing complained of or to the person or persons for whom he does it.</p> <p>5. Sunday — Necessary Work or Business — Test of. — It is not possible to set down with reasonable accuracy the line that separates works of necessity from works that are not, and so the best rule that can be laid down is to regard that as a work or business of necessity which the common sense and sound morality of the community would regard as necessary to be done, and this is to be determined in cases of doubt by the facts and circumstances of each particular case.</p> <p>6. Sunday — Changing Social and^, Business Conditions — Effect of. — • The changing conditions, customs, manners and habits of the people will not be allowed to alter the meaning or impair the efficiency of the Sunday law. In all cases a necessity must exist to excuse the doing of work or business on Sunday. The statute as it reads must be applied to these new conditions and the work or business subjected to the never changing test of necessity, judged by the facts and circumstances of the case under investigation.</p> <p>7. Sunday — Work of Necessity — Keeping Open a Grocery or Confectionery Store. — What particular articles the owner of a grocery or confectionery store may sell on Sunday and be excused on the ground of necessity must be determined by the facts and circumstances surrounding the particular transaction.</p>

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

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

<p>1. Depositions — Right to Take Deposition of Party. — Civil Code of Practice, section 606, subsection 8, providing that a party may be examined as on cross-examination by the adverse party, either orally or by deposition as any other witness, gives to either party the right to take the deposition of the adverse party before trial, even though the witness does not belong to the class named in section 554 of the Civil Code of Practice and his deposition may not be admissible in evidence.</p> <p>2. Appeal and Error — Harmless Error. — The refusal of the defendant to permit the plaintiff to take his deposition, pursuant to section 606, subsection 8 of the 'Civil Code of Practice, is not ground for reversal, where the plaintiff goes into trial without moving for a continuance for the purpose of taking such deposition.</p> <p>3. Master and Servant — Safe Place for Work — Duty of Master. — The duty of the master to use ordinary care to furnish a reasonably safe place for work applies only to the place wMcli the servant is required to use for the purpose of performing his duty.</p> <p>4. Master and Servant — Injuries to Servant — Use of Dangerous Place. — Where the master has furnished the servant a reasonably safe place to work and the servant declines to use such place and is injured while using a more dangerous place of his own selection, he does so at his own peril and the master is not liable.</p>

<p>1. Divorce — Review of Judgment for as to Alimony. — This court cannot reverse a judgment for absolute divorce, but it can review the evidence for the purpose of determining whether alimony should be allowed or disallowed, and if allowed, fixing the amount thereof.</p> <p>2. Divorce — Alimony—Evidence.—Although the evidence may not be sufficient to authorize the granting of an absolute divorce, still it would be proper to allow alimony if the evidence authorized the granting of a divorce a mensa et thoro.</p> <p>3. Divorce — Separation Prom Bed and Board — Evidence.—Where the evidence shows that the husband, who is the defendant in the suit, frequently visited the home 'of a tenant on his farm when the wife of the tenant was present and the husband absent, and was frequently seen in company with and associating with the wife of such tenant under circumstances indicating undue familiarity, and which conduct was persisted in after solemn protest by the wife, the plaintiff in the divorce proceeding, and where the woman involved upon the birth of a child named it for the husband, the defendant in the divorce suit, and other facts appearing of a more or less suspicious and guilty nature, there was at least sufficient grounds to grant a separation from bed and board if not to support an absolute divorce.</p> <p>4. Divorce — Alimony—Discretion of Court. — The amount of alimony is always a matter within the sound discretion of the court trying the case, which means that the court must endeavor to do exact justice between the parties under the facts as they appear, and where the wife is shown to have been a faithful, economical and industrious woman throughout the married life of the pair, and has assisted her husband to accumulate during that time, in addition to what he already had, a sum of more than $12,000.00, and where she is not found guilty of any disloyal, untrue, or even harsh conduct, it would not be abuse of a sound discretion to allow her, after divorce is granted, a lump sum of one-third of the combined accumulations which in this case is $4,000.00, and she should furthermore be adjudged the possession of such articles of household furniture as is conclusively shown she purchased with her own means from her individual earnings.</p> <p>5. Divorce — Allowance of Attorney’s Pee. to Wife. — Where there are no complicated legal questions, and the evidence shows the facts substantially as above indicated, and the testimony is not unusually lengthy, the allowance to the wife of an attorney fee of $300.00 is deemed sufficient.</p>

<p>1. Bastards — Proceeding to Bastardize Child. — In order to bastardize a child born in wedlock or thereafter within the period of gestation, it must be shown by those asserting illegitimacy that the husband could not possibly have been the father of the child.</p> <p>2. Bastards — Presumption of Legitimacy — Evidence.—Proof that the mother of the child was divorced from the father upon the ground of her adultery; that the father denied his parentage of the child; that the reputation of the mother, for chastity, was bad; and that it was rumored in the neighborhood that another was the father of the child, is totally inadequate and insufficient to overcome the legal presumption of legitimacy always indulged where the possibility of legitimacy exists.</p> <p>8. Appeal and Error — Evidence of Title — Practice.—In order to take advantage of the failure to file written evidences of title, as required by section 499 of the Civil Code, a motion to that effect must have been made in the trial court, and in the absence of such motion the defect is held to have been waived.</p> <p>4. Infants — Judgment Affecting Right of. — An agreed judgment in an action, to which an infant was not a party, adjudging the mother of his half-brother the owner, as heir of her deceased son, of his interest in land, can not affect the right of the infant to assert his interest therein in a subsequent action.</p> <p>5. Infants — Extent of Recovery in Certain Cases. — In an action between an infant and the grantee of his father’s widow, the question whether or not the widow’s deed was void as to her dower interest in the father’s land is immaterial, as he can only recover his own interest therein, which is subject to her dower rights.</p> <p>6. Infants — When Cannot Recover Against Purchaser. — Where the ancestor resided upon land which he had purchased under a verbal agreement, and upon which he had paid part of the purchase price, and which was, after his death, conveyed to some of his children, who paid the balance of the purchase price; held, that, as the ancestor did not have title to the land nor a contract upon which he could have enforced a conveyance, a child not included in the conveyance could not recover against a purchaser from those holding the record title.</p>

<p>1. Taxation — Public Charity — What Constitutes. — A purely public charity in the meaning of section 170 of the constitution is such an institution as is maintained, without cost to the beneficiaries, (1) for eleemosynary purposes; (2) for educational purposes; (3) for religious purposes; and (4) for public purposes.</p> <p>2. Taxation — Public Charity — What Constitutes. — A building owned and used as a home and for the exclusive purposes of a Commandery of Knights Templar, which is maintained by funds derived from fees and assessments of members of the Commandery, and substantially the only charity the Commandery dispenses is what it does not need to expend in maintaining its home and furthering the fraternal spirit and aims of the order, cannot be regarded i as a purely public charity within the meaning of section 170 of the ! constitution, and is, therefore, not exempt from taxation under that section.</p>

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

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

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

<p>1. Municipal Corporations — Streets—Officers — Discretion. — Discretionary powers vested in public officers are not subject to judicial control; and, unless legal limitations exist, the exercise of the power to open streets is discretionary with the proper municipal authorities, and is not subject to judicial review, except in cases expressly provided by law.</p> <p>2. Municipal Corporations — Pleading—Failure to State Cause of Action.- — A petition which fails to show that a street car company whose tracks occupy a street, is required by law, or by its franchise, or by contract with the city, to pave any part of the street so occupied, as required by section 3096 of the Kentucky Statutes, fails to state a cause of action to enjoin the municipal authorities from constructing the street at the cost of the abutting property owners.</p> <p>3. Pleading — Good pleading requires that a- petition should state facts and not mere legal conclusions.</p>

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

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

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

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

<p>1. Officers — De Jure Officer — When Entitled to Salary. — When Disbursing Officer May be Enjoined From Paying Salary to Usurper.</p> <p>-A de jure officer who is able, ready and willing to perform tbe duties of tbe office, but wbo is. kept out of tbe possession of it by a usurper, may restrain tbe disbursing officers of the municipality from paying tbe salary attached to tbe office to tbe usurper.</p> <p>2. Officers — Rights of De Jure and De Facto Officers Respecting Salary Pending Contest Over the .Office. — Whether a person who was in truth entitled to an office, although kept out of the possession of it by a contest suit pending which a de facto officer was discharging the duties of the office, could, pending the contest, restrain the payment of the salary to the de facto officer, is a question not decided.</p> <p>S. Officers — Right of De Jure Officer to Recover From Municipality Salary That it Has Paid to a De Facto Offirer. — Where a municipal authority has paid to a de facto officer who is performing the' duties of the office the salary attached to the office, the de jure officer cannot, when his title to the office has been determined, recover from the municipality the salary that was paid to the de facto officer while he was discharging the duties of the office.</p>

<p>1. Insurance — Life Insurance — Suicide-—Burden of Proof. — In an action upon an insurance policy -where it is contended by appellant that insured committed suicide by drinking carbolic- acid, held, that appellee made out a prima facie case when she proved the death of insured, and the burden of proving whether insured died by his own hand, whether sane or insane, was upon the appellant.</p> <p>2. Appeal and Error — When Verdict Will Not be Disturbed. — The jury is the best judge of the facts, and where there is evidence sufficient to support the verdict, and no error appearing in the record, the verdict will not be disturbed.</p> <p>3. Appeal and Error — Instructions.—Where appellant offers an instruction similar to the one given by the court, it is in no position to complain that the court did not give it.</p>

<p>1. Indictment and Information — False Pretenses — Sufficiency of Indictment For. — In an indictment for obtaining money by false pretenses, wbicb gives tbe name of tbe person to whom tbe false pretenses were made, and from wbom tbe money is obtained, is not bad on demurrer, because it fails to specifically allege that such person was tbe owner of tbe money, as tbe allegation so identifies tbe act, that it gives notice to tbe party indicted of tbe exact act for wbicb be was indicted, and is a bar to a second conviction for the same offense.</p> <p>2. Indictment and Information — Construction.—In an indictment, the words used must be construed according to their usual acceptation, in common language, except words and phrases defined by law, and a charge, that one obtained “the sum of $2.50” by false pretenses, has no other meaning, except dollars and cents, as indicated by the figures, in the lawful money of the country.</p> <p>3. Criminal Law — Motion in Arrest of Judgment. — The only ground for a motion in arrest of judgment in a criminal prosecution is that the indictment does not state a public offense, within the jurisdiction of the court, in which the prosecution is pending.</p>

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

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

<p>1. Municipal Corporations — Ordinances—When Invalid. — Where a city council in attempting to enact an ordinance, striking territory from its corporate boundary, failed to comply with the provisions of section 3664, Kentucky Statutes, which statute sets forth the steps required to be taken by a city council, the ordinance is invalid.</p> <p>2. Municipal Corporations — Ordinances—Parol Evidence. — A city council can speak only by its records. Parol evidence cannot be received to prove the enactment of an ordinance by a city council.</p>

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

<p>1. Evidence — When Sufficient to Take Case to Jury — Test of. — If the evidence on the subject of the negligence of a defendant is of such a nature as that there might be reasonable difference of opinion whether the defendant was guilty of negligence or not, or if the reasonable inference from the facts tends to indicate that he was guilty of negligence, the case should go to the jury.</p> <p>2. Railroads — Duty of Engineer When He Discovers Person on Track Does not Heed the Approach of the Engine. — When an engineer discovers that a person on the track in front of the engine, who has been notified of its approach by the ringing of the bell and sounding of the whistle, is not going to leave the track, he must exercise ordinary care with all the means at his command to stop the engine. ° And in the absence of direct or satisfactory circumstantial evidence contradicting the engineer, his testimony that he did use ordinary care with all the means at his command to stop his engine, would warrant the court in directing a verdict for the defendant.</p> <p>3. Railroads — Duty of Engineer to Person on Track Who Does Not Know of Approach of Engine. — The rule that an engineer must use ordinary care with the means he has at hand to avoid injury to a person on the track after he discovers his peril, implies such care as a capable engineer would exercise and the doing of such things as a capable engineer would do-.</p> <p>4. Railroads — Duty to Avoid Injury to Person After His Peril Is Discovered — Sufficiency of Evidence. — Where an engineer discovered, when the engine was more than two hundred feet from a person walking on the track in front of it that the person did not know of the approach of the engine and was not going to leave the track, and the evidence showed that the engine could have been stopped within one hundred feet from the time the engineer first attempted to stop it, the railroad company was liable in damages for the death of the pedestrian.</p> <p>6. Railroads — Duty to Person on Track When Peril is Discovered.— When an engineer actually discovers that a person on the track in front of his engine is not going to leave the track and is not giving any attention to the approach of the engine, he is under the same measure of duty to save him if he can whether he be old or young, or have good hearing or bad, or be sick or crippled, or strong and healthy.</p>

<p>1. Adverse Possession — Patents—Junior Included Within Senior Patent. — Land covered by a junior patent which is included in a senior patent is void to the extent of the interference; and actual possession on a part of the land not covered by the senior patent will not be extended so as to cover the land included within the interference without an actual occupancy of it.</p> <p>2. Adverse Possession — Patents.—Where a person who owns a residence upon a tract of land secures a patent or deed for an adjoining body of land which is unoccupied but covered by a senior patent, he cannot claim by adverse possession this adjoining land unless he actually enters upon and takes actual possession of it.</p> <p>3. Adverse Possession — Patents—Occupancy.—P. owned a tract of land and procured a patent for an adjoining tract, which patent extended over and lapped upon a senior patent. Held that his occupancy of his home cannot be extended so as to make his possession include the land covered by his patent, especially that portion of it covered by the senior patent.</p> <p>4. Quieting Title — Action to Recover Land. — In an action to recover land if the defendant claims the land or any portion of it he must say so in his answer, describing that part of it which he claims, if it be less than the whole, and this applies to suits to quiet title or to remove a cloud from a title the same as to ordinary ejectment suits.</p> <p>5. Quieting Title — Pleading—Prejudicial Error. — Where the defendant in his answer does not claim title to any portion of the land,' it is prejudicial error to adjudge him to be the owner of any portion of it, although plaintiff may not have shown himself entitled to recover it.</p>

<p>1. Deeds — Commissioner’s Deed — Parties.—A commissioner’s deed purporting to convey a tract of land on behalf of the father and his infant children, though void as to the infants, will pass the title of the father.</p> <p>2. Deeds — Construction.—-A deed should be construed as a whole, and apparently inconsistent provisions harmonized if possible.</p> <p>3. Deeds — Construction.—A deed construed, and held to vest in each of the grantees named in the caption an undivided one-half interest in the land conveyed.</p>

<p>1. Appeal and Error — Instruction on Contributory Negligence — Refusal to Give. — While it is not always reversible error to refuse' to include in the instruction on contributory negligence the particular facts constituting the defense, it is now the established rule in this state to give instructions presenting in specific and concrete form each party’s theory of the case, and the failure to do so is reversible error, whenever it is left to the jury to decide whether or not the facts proven by the defense constitute contributory negligence.</p> <p>2. Master and Servant — Appeal and Error — Instruction.—The instruction given for the plaintiff having authorized a recovery, if - at the time of injury he was subject to the orders of his superior in keeping the place safe as the work progressed, it was error to refuse to present in the instructions the “obvious danger” qualification.</p>

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

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

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

<p>1. Appeal and Error — Failure to File Transcript — Dismissal.—The provisions of section 738, Civil Code, are mandatory, and an appeal granted by the lower court will, on motion of the appellee, be dismissed where the transcript is not filed in the office of the clerk of the Court of Appeals at least 20 days before the first day of the second term after the granting of the appeal and no extension of time for filing the transcript has been granted by the Court of Appeals.</p> <p>2. Appeal and Error — Failure to File Transcript — Dismissal.—An appellant cannot prevent the dismissal of an appeal granted him by the lower court by asking, on the motion to dismiss, that an appeal be granted him by the Court of Appeals, where he has not filed in the office of the clerk of the Court of Appeals a copy of the judgment or transcript of the record. But such dismissal will not prevent him from being granted an appeal by the clerk of the Court of Appeals at any time within two years after the rendition of the judgment.</p> <p>3. Appeal and Error — When Damages Not Allowed Upon Dismissal. — • Damages are not allowed upon the dismissal of an appeal where the judgment is not for the recovery of money; and in an action for divorce or alimony, where the wife is allowed an attorney’s fee, such fee is a part of the costs, and no damages will be allowed upon the same.</p>

<p>Limitation of Actions — When limitation begins to run against an adult, his death, or the fact that he leaves infant heirs, does not stop the running of the statute.</p>

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

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

<p>1. Principal and Agent — Nature of Relation in General-. — An agent is one who acts for or in the place of another, by authority from him, or who- undertakes to transact some business or manage some affairs for another, by authority from him and to render an account of it.</p> <p>2. Appearance — Proceedings Constituting Appearance. — Although a court is without jurisdiction of the person of a litigant, if it has jurisdiction of the subject matter, and the litigant appeals from the judgment of the court to the Court of Appeals, he thereby enters his appearance to the action, and when the judgment is reversed and remanded he will be before the court below for all the purposes of the action.</p>

<p>1. Insurance — Attachment of Fund Due Upon Policy. — Under the terms of a life insurance policy giving the insured, at maturity of the policy, the right to a -withdrawal of the cash value of the policy, or, to convert the entire cash value into a life annuity, or to continue the policy for its full amount as a paid up participating policy for life, the insured wrote the insurance company stating he would accept the cash value of the policy. Held, that the fund due upon the policy was subject to attachment by insured’s creditors.</p> <p>2. Insurance — When Cash Value Belongs to Insured — Beneficiaries.— When insured exercised the option in a policy giving him the right at maturity to accept the cash value of same, the beneficiaries had no vested interest therein, and the fund belonged to him.</p>

<p>1. Insurance — Burglary Insurance — Sufficiency of Evidence. — In an action on a policy of insurance, indemnifying against loss by burglary, tlieft or larceny, for the loss of a diamond stud alleged to have occurred by burglary, evidence considered and held insufficient to take the case to the jury.</p> <p>2. Insurance — Burglary Insurance — Burden of Proof — Failure of Defendant to Introduce Witnesses. — In an action on a policy of insurance, indemnifying against loss by burglary, theft or larceny, for loss alleged to have been caused by burglary, it is incumbent on the plaintiff to make out a loss by burglary, and no presumption in favor of plaintiff arises from the failure of the defendant to introduce as witnesses certain detectives who were sent to investigate the loss.</p>

<p>Wills — Construction.—Under the provisions of a will testator designated two of his sons as executors and directed them to sell his real estate and divide the money among his seven children, but two of his daughters to have life estates, with power to invest and reinvest and to receive the income from the investment for and during their natural lives, and at their death the corpus of the estate to go to their child or children. Held, that the executors should require bond to be executed to the remaindermen that the corpus of the estate will he forthcoming at the termination of the life estates.</p>

<p>1. Appeal and Error — Parties.—The word “etc.” after an appellant’s name in the statement of parties required by section 739 of the Civil Code of Practice, is insufficient to make any one except the appellant specifically named, a party to the appeal.</p> <p>2. Fraudulent Conveyances. — A sale or conveyance of property exempt from execution, is not fraudulent.</p> <p>3. Fraudulent Conveyances — Transfers and Transactions Invalid.— A contract by the grantee in a deed to support the grantor during his life in consideration of a conveyance of the grantor’s property, renders the conveyance constructively fraudulent as to the grantor’s creditors. Ky. Sts., Sec. 1906.</p> <p>4. Fraudulent Conveyances — When Homestead Not Lost. — A homestead right is not lost by a conveyance'which is successfully assailed as fraudulent under section 1906 of the Kentucky Statutes.</p>

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

<p>On Motion to Dissolve Injunction.</p>

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

<p>1. Municipal Corporations — Street Improvements — Abutting Owners. —The board of trustees of a town of the sixth class is not empowered to cause the construction of a side walk at the cost, exclusively, of the abutting property owners, except the proceedings therefor be made at a regular meeting, and upon the affirmative votes of four members of the board, where the construction has not been petitioned for by the abutting property owners, and it is not determined to be done upon the ten-year bond plan.</p> <p>2. Municipal Corporations — Street Improvements — Abutting Owners. —The board of trustees of a town of the sixth class is empowered to cause the construction of side walks at the cost, exclusively, of abutting property owners, in three instances: (1) when a majority of the abutting property owners petition therefor; (2) when it is done at the regular meeting of the board and upon the affirmative votes of four members thereof; (3) when it is determined to be done, at a regular meeting, by the votes of a majority of tbe board, upon tbe ten-year bond plan.</p>

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

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

<p>1. Master and Servant — Mines and Mining — Injuries to Servant — Safe Place to Work. — Where a coal miner is injured by dangers created by extracting coal in the progress, of his work and at a place where the mine owner is under no duty to prop or timber, the safe place doctrine does not apply.</p> <p>2. Master and Servant — Mines and Mining — Promise to Repair — Contributory Negligence. — Although the mine owner has promised to prop and timber the roof of a mine at a place where the slate is in a dangerous condition, a servant who thereafter removes the support of the slate by digging out the coal underneath, with knowledge of the fact that the slate will fall if the support be removed, and then works under the slate from which the support has been removed and thus voluntarily exposes himself to a known, obvious and imminent danger, is guilty of contributory negligence as a matter of law.</p>

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

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

<p>1. Release — Who May Release Lien of Record. — Under the provisions of sections 498 and 498a of the Kentucky Statutes, no one has a right to release a lien of record except one who appears of record to be the owner of and entitled to the debt attempted to be released, and a release by one not so shown is void and of no effect.</p> <p>2. Bills and Notes — Executed to Vendor in Deed. — Where a deed states that the deferred payments forming the consideration for the land are evidenced by notes that day executed, and without showing the person or persons to whom the notes are executed as payees, it will be presumed that they were executed to the vendors in the deed jointly, nothing appearing to the contrary.</p> <p>S.Release — Release of Record — Who May Execute. — Where a note is payable to several obligees, either on its face or by presumption of law, any one of them may execute a valid release of them on record upon payment to him by the one from whom they are due.</p> <p>4. Release — When Invalid. — Where an attempted release is signed-by one of the vendors not in his individual capacity but as agent for a designated class of heirs, such release is invalid in the absence of a showing that the person who signed it was at the time such agent and that the heirs whom he proposes to represent are the ones to whom the released debt belonged at the time of payment.</p> <p>5. Covenants — When Not Satisfied. — A covenant to execute a general warranty deed is not satisfied unless the tendered title is perfect and clear and free from all encumbrances so as to make it a marketable one, and a purchaser under an executory contract, which contract contained the stipulation for a warranty deed, is not required to accept the title wherein there are liens of record not legally released.</p> <p>6. Release — Principal and Agent. — The fact of agency may not be established by the statements alone of the supposed agent, and a release of a lien upon real estate entered upon record and signed by pne as agent for another is invalid in the absence of other legal proof that he was such agent.</p> <p>7. Contracts — Action for Failure to Accept Deed. — In a suit for dam-' ages against a purchaser for failing to accept a deed and comply with his contract, the right of the defendant to refuse to accept the tendered title is governed by the condition of it at the time fixed for performance, and which right cannot be affected by a perfecting of the title by the vendor after that time so as to render the purchaser liable for damages for breach of contract.</p> <p>8. Appeal and Error — Instruction—When Verdict Will be Affirmed. — ■ Where a jury returns a verdict under instructions from the court to which, exceptions were taken, if the evidence shows that the same verdict should have been returned under directions of the court the judgment based upon it will he affirmed, although the court failed to give such instructions to the jury.</p>

<p>1. Injunction — Time to Apply to Judge of Court of Appeals for Reinstatement of — Filing Order of Reinstatement. — Under sections 296 and 297 of the Civil Code, if the plaintiff desires to apply for a reinstatement of an injunction, the circuit judge making the order of dissolution shall give not exceeding twenty days to apply for a reinstatement, and if the judge of the Court of Appeals to whom the application for reinstatement is made orders the reinstatement, the order in the absence of an agreement must be filed in the clerk’s office within twenty days from the date of its dissolution by the circuit judge.</p> <p>2. Injunction — Reinstatement of — Effect of Failure to File Order Reinstating Within Twenty Days. — In the absence of an agreement if the order made by a judge of the Court of Appeals reinstating an injunction be not filed in the clerk’s office of the circuit court within twenty days from the date of the order made by the circuit judge, his order will stand as made.</p> <p>3. Injunction — Motion Before Judge of Court of Appeals to Reinstate —Agreement to Extend Time. — When counsel are not prepared to submit to a judge of the Court of Appeals within twenty days a motion to dissolve or reinstate an injunction, or the judge of the Court of Appeals cannot dispose of it before the expiration of twenty days, the attorneys may agree, either verbally or in writing, that the order made by the judge of the Court of Appeals, although not filed in the clerk’s office within the time allowed, shall have the same force and effect when filed as if filed within, the time allowed.</p> <p>4. Injunction — Motion Before Judge of Court of Appeals to Reinstate or Dissolve — Effect of Agreement of Counsel Extending Time.— When counsel agree, either verbally or in writing, that the time in which the judge of the Court of Appeals may file his order dissolving or reinstating the injunction, they will not be permitted to violate this agreement.</p> <p>5. Injunction — Duty of Circuit Judge to Give Plaintiff Time to Apply for Reinstatement of. — Under section 296 of the code it is the mandatory duty of the court or judge dissolving an injunction to give time for its reinstatement if such time is requested. The court or judge has no discretion as to this.</p> <p>6. Injunction — Mandamus to Compel Court or Judge to Give Time to Reinstate. — If a court or judge fails or refuses upon request made to give the time provided in section 296 of the code for the reinstatement of an injunction, the plaintiff may secure from the Court of Appeals a mandamus requiring the court or judge to give the time provided for in the code.</p> <p>7. Injunction — Order Refusing to Give Time for Reinstatement of Cannot be Overcome by Affidavit. — Where the court or judge fails or refuses upon request to give time for the reinstatement of an injunction dissolved, his order cannot be overcome by affidavits showing that time was requested and refused. The remedy of the plaintiff is to mandamus the judge.</p> <p>8. Injunction — Effect of Failure of Order to Show That Time Was Allowed for Reinstatement of. — In the absence of an order made by the court or judge giving time in which to apply for a reinstatement of an injunction, a judge of .the Court of Appeals has no authority to reinstate it. If the order fails to show that time was given, it must be presumed that it was not requested, but this presumption may be overcome in a mandamus proceeding.</p>

<p>1. Infants — Sale of Real Estate of. — In a suit under section 489 of the code for the sale of infants’ real estate for .the maintenance and education of the ward, the court has no jurisdiction to order a ' sale unless it appears that the sale will benefit the infants.</p> <p>2. Parties — Contingent Remaindermen When Necessary. — In a suit to obtain the construction of a will in which it is sought to defeat the claim of contingent remaindermen to an interest in the estate, the remaindermen are necessary parties.</p>

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

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

<p>1. Negligence — Evidence—Pleading.—It is competent for a litigant to charge negligence in general terms to which proof of any character of negligence relevant to the issue may be given, but if he specifies the character of negligence, he is confined in his proof to that which is specified and he cannot recover by showing negligence not specified, although it would have been competent if specified or under a general charge. Otherwise, the rule forbidding proof without allegation would be violated.</p> <p>2. Master and Servant — Negligence of Fellow Servant. — The master is not liable for the negligence of a fellow servant, and when the negligence complained of is that of a member of a crew engaged in constructing for the master a specific piece of work, with none of them having authority over the others but all engaged in the same purpose, the master is not liable because the members of the crew thus engaged are fellow servants the one with the other. ,</p> <p>3. Master and Servant — Negligence of Fellow Servant. — Where one of such servants is by the boss and foreman of the crew placed in charge of a hand car being used by a part of the crew, and With power and authority to control and manage the car, such one for the time being is not a fellow servant with the other members of the crew present, but is a superior for whose negligence the master will be responsible.</p> <p>4. Master and Servant- — Negligence.—An allegation that a hand car was being operated “too fast” is not good, as there is no standard shown by which its speed should be governed, and it was error to submit to the jury the question of defendant’s negligence in such terms. To be good, the pleading should charge that the speed was unusual, unreasonable, reckless and unnecessary, and that it was negligently committed or permitted.</p> <p>5. Master and Servant — Operation of Hand Car — Evidence.—In such case the defendant may show by its testimony what is the customary and ordinary speed usually employed under the conditions being investigated, and it is error for the court to refuse to per* mit it to do so.</p> <p>6., Master and Servant — Operation of Hand Car — Negligence.—A boss in charge of a crew of hands riding a hand car with power and authority to direct and control its movements should see to it that it was not operated in such manner as to render it dangerous, and the master will be liable if he should negligently refuse to exercise his authority to prevent such danger.</p>

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

<p>1. Carriers — Misdirection of Passenger — Wrong Train — Duty of Carrier — Ejection.—Where two roads jointly maintain a union station and run trains into and out of that station, and a party holding a ticket over one of the roads, hy misdirection of their joint employes or the employes of the wrong train, takes passage on the wrong train, such a party is not a trespasser in the sense that he may be ejected at any time or place, but is entitled to ride on the wrong train to the nearest reasonably safe and convenient point from which he can reach a train on the proper road; and where this is done the carrier is not liable in damages.</p> <p>2. Carriers — -Ejection of Passenger — Unsuitable Place — Liability of Carrier. — In such a -case, where the passenger is carried to an unsuitable place beyond the nearest reasonably safe and -convenient point to take the train on the right road, she may recover damages.</p> <p>3. Carriers — Ejection of Passenger — Unsuitable Place — Measure of Damages. — In such a case, damages for mental suffering based on fright cannot be recovered by the passenger, where neither personal injury nor illness followed the ejection.</p> <p>4. Carriers — Ejection of Passenger — Unsuitable Place — Measure of Damages. — In such a case, where no time is lost and no additional expense incurred and there has been no personal injury or illness, the measure of damages is a sum reasonably sufficient to compensate plaintiff for the inconvenience and personal discomfort which she suffered as the direct and (proximate result of her ejection at an unsuitable place.</p>

<p>Intoxicating Liquors — Sale of on Leased Premises — Statute.—A company will not be held criminally liable, under section 2557, Kentucky Statutes, for knowingly renting a house or premises in which intoxicants are sold, unlawfully, where it is not shown by the Commonwealth that the defendant company knew, or by the exercise of reasonable prudence could have known, at the time or before it entered into a lease contract with its lessee, that its lessee intended to or would sell intoxicants on its premises in violation of law, though after said lease contract was made, it knew such sales of intoxicants were being made.</p>

<p>Liens — Action to Enforce Execution Lien — Mortgages.—In an action by execution creditors to enforce execution liens upon a tract of land, one bolding a mortgage on tbe land, executed prior to tbe levy of tbe executions, wbicb is not attacked by tbe plaintiffs on tbe ground of fraud or preference, but on tbe ground that, by mistake, it was given to secure a larger debt than was due tbe mortgagee; and it was shown by uncontradicted evidence to bave been executed by tbe mortgagor to secure a loan of tbe full amount named therein made to him by tbe mortgagee: Held, that the circuit court erred in not adjudging to the mortgagee a prior lien on the land for the full amount of the debt stated in the mortgage.</p>

<p>1. Trial — Evidence—Burden of Proof — Argument of Counsel. — -Where the party upon whom the burden of ©roof rests permits the other party, without objection, to first introduce his evidence, he waives his right to the concluding argument to the jury.</p> <p>2. Principal and Surety- — Bills and Notes — Evidence.—In an action to recover on a renewal note, evidence examined and held to authorize the submission to the jury of the question of whether the relation of the maker of the note sued on to the original note was that of principal or surety.</p> <p>3. Husband and Wife — Bills ánd Notes — Principal and Surety. — A wife shown to have signed an original n.ote as a joint principal with her husband cannot claim, in an action to recover on a renewal thereof signed by her and not signed by her husband, that the original note was signed by her as a surety.</p> <p>4. Husband and Wife — Principal and Surety. — In an action to recover of both obligors in a renewal note, where the defense is interposed that the note sued on was executed in renewal of a note signed by one of them, a married woman, as surety of her husband, and that by reason thereof she. incurred no liability; and it is shown by the evidence that the original note was in fact executed by the latter as principal, both obligors are liable on the renewal note sued on.</p> <p>5. ■ Husband and Wife — Liability of Wife on Note. — Where the proceeds of a joint note of husband and wife were used in a mercantile business in which the husband and wife were partners, she will be liable on the note for the full amount thereof, although she signed the note intending only to bind herself as the surety of the husband.</p>

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

<p>1. New Trial — Excessive Damages. — A new trial will not be granted on account of excessive damages, unless the damages allowed should be so considerable as to strike the mind at first blush as having been given under the influence of passion or prejudice.</p> <p>2. New Trial — -Newly Discovered Evidence. — A new trial will not be granted because of newly discovered testimony, where it is merely cumulative, unless it is such as is calculated to have a very decisive and preponderating influence upon the verdict.</p>

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

<p>1. Witnesses — Competency.—A contractor who supervises his work is competent to prove its amount and value.</p> <p>2. Appeal and „Error — View of Premises by Jury — Discretion.— Whether a jury may view the premises is largely within the discretion of the trial court, and its action will not be disturbed unless the discretion has been abused. (Civil Code, Sec. 318.)</p> <p>3. Husband and Wife — Married Women — Lien Upon Property. — Since the enactment of section 2128 of the Kentucky Statutes (Act of 1894), married women have the same power as unmarried women or men, to create liens upon their property, for its improvement; and, where a married woman accepts the material and work placed upon her property, the law implies a promise upon her ¡part to pay for them.</p> <p>4. Pleading — Variance Between — Allegations and Proof. — Under section 129 of the Civil Code, no variance between the pleadings and the proof is material, which does not mislead a party to his prejudice in maintaining his action or defense upon the merits.</p> <p>5. Appeal and Error — New Trial. — No error committed during a trial is available upon appeal, unless it was relied upon as a ground - for a new trial.</p>

<p>1. Railroads — Defective- Signal Bell — Personal Injuries — Want of Care. — Where an electric signal bell at a crossing, back rung after the passing of a train, thereby frightening plaintiff’s horse, causing plaintiff to be thrown from the buggy and injured, and the back ringing of the bell was at a time when in the ordinary course of things, it should not so do. Held, that when the plaintiff proved the accident, injury, and surrounding circumstances, and the thing which caused the injury is shown to be under the exclusive management and control of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management and control of it use proper care, it affords reasonable evidence in the absence of an explanation by the defendant, that the accident arose from a want of care.</p> <p>2. Appeal and Error — Amount or Extent of Recovery. — Where a woman 60 years of age was injured by being thrown from a buggy, breaking her leg near her hip, it was shown by the evidence that at the time of the trial, more than two years after the injury it was still necessary for her to use crutches, it cannot be said that a verdict for $2,500.00 is so excessive as to indicate that it was •rendered through passion and prejudice on the part of the jury.</p>

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

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

<p>1. Attorney and Client — Contract of Employment Procured Through. Agent — Void.—A contract of employment of an attorney to conduct a litigation, which is procured through the efforts of a runner or agent of the attorney, who receives for his services a stipulated salary and a percentage of the fees derived by his employer from business secured by him, and who is not himself a lawyer, is void as against public policy.</p> <p>2. Attorney and ■ Client — When Contract of Employment Void — Evidence. — Evidence examined in an action by an attorney to recover a fee and held to support a verdict that the contract upon which the suit was brought, was .procured for the attorney through the solicitation of a runner or agent, who was in the employ of and paid by the former for such solicitation of business.</p> <p>3. Attorney and Client — Action to Recover Pee — Instructions.-—In an action by an attorney to recover a fee, an instruction which told the jury, in substance, that they should find for plaintiff unless they, believed that the plaintiff employed an agent to solicit employments for him in the conduct of litigation, and that plaintiff paid or promised to pay such agent a stated monthly sum or commission upon all business so procured by him, and that the contract ' sued on resulted from the efforts of such agent, was correct under the pleadings and evidence.</p> <p>4. Appeal and Error — Opinions of Court of Appeals Conclusive. — An opinion of the Court of Appeals on the first appeal is conclusive of all questions raised on that appeal, but not conclusive as to a new question raised on the second appeal, nor as to a question improperly attempted to be raised on the first appeal but properly raised on the second appeal.</p> <p>5. Attorney and Client — Action to Recover Pee. — In an action by an attorney to recover a fee of the adversary of his client, where such defendant interposes the defense that the contract of employment out of which the fee arose is illegal, the attorney -cannot rely upon the promise of such defendant to pay his fee unless such promise is pleaded by him.</p> <p>6. Appeal and Error — Misconduct of Counsel — Objection.—A party to an appeal cannot complain of misconduct of counsel for his opponent in his argument to the jury, where the remarks of counsel do not appear to have .been objected to when made, or do not appear in the bill of exceptions, and are only brought to the attention of the trial court by affidavits filed on motion for a new trial.</p>

<p>1. Wills — Intention of Parties — Vested Estates. — While it is tho primal rule in the construction of wills that the intention of the testator must prevail, the law favors vested estates, and the ■ courts will not construe a devise to be contingent, unless the intention to create a contingency clearly appears.</p> <p>2. Wills — Estoppel.—Where a devisee accepts a devise under a will which also devises land, previously conveyed by the testator to the devisee, to a third person, the devisee and those claiming under him are estopped from claiming said land, unless the devisee did not have sufficient mental capacity to make an election.</p> <p>3. Wills — Scope and Mode of Review. — Where the capacity of a devisee, whose land was devised to another in a will which devised other lands to said devisee, to make an election is in issue, and there is ample evidence to support the chancellor’s finding, the court will not disturb that finding merely because the devisee was an epileptic and had been addicted to the use of morphine.</p>

<p>Appeal and Error — When Judgment Will Not be Disturbed — Evidence. — Plaintiff seeks to enjoin the sale of land under execution against him because he claims that he had previously settled the judgment upon which the execution issued, and that he was surety on the note upon which the judgment was rendered, and the execution was not issued until more than seven years' after it could have been issued and that he is no longer liable for the payment of the judgment. The trial court decided both of the issues against the plaintiff. The evidence examined and found to be conflicting, but upon the whole case it cannot be determined with reasonable certainty that the court erred on his finding of fact, and there being doubt in the mind of this court as to the truth of the matter, the judgment will not be disturbed.</p>

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

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

<p>Mortgages — Subsequent Attachment — After Acquired Property.— A mortgage on property to be thereafter acquired, executed by a manufacturing corporation, to secure long time negotiable bonds which are hypothecated to secure funds thereafter furnished upon which to operate the business, is not void as to a subsequent attachment.</p>

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

<p>1. Contracts — Affecting Election to Office — Illegal and Corrupt Bargains Concerning — Courts Will Not Grant Relief to Parties.' — A bargain, under tbe terms of which the Republican nominee of the party for an office withdrew from the race in favor of the Democratic nominee for the office, was illegal and corrupt, and neither 'of the parties to the bargain should, be given any relief by a court concerning anything growing out of the transaction.</p> <p>2. Contracts — Affecting Election to Office — Illegal and Corrupt Bargains Concerning — Right of Parties to Recover Money Prom Stakeholders. — Where, pursuant to a bargain entered into between candidates for a public office who had been nominated by their respective parties, one of them withdrew in consideration of the agreement of his opponent to give him, if elected, a share in the office, and the nominee who induced the other to withdraw put in the hands of a stakeholder five hundred dollars to insure the performance of his contract, he could- not, after he had performed his contract, recover from the stakeholder the money.</p> <p>3. Gaming — Gambling Contracts — Right of Parties to Recover Prom Stakeholder Money Deposited. — Money that is wagered or bet and deposited in the hands of a stakeholder to be held by him until the outcome of the wager or bet is determined, may, under section 1959 of the Kentucky Statutes, be recovered from the stakeholder by the person making the deposit, if it is still in the hands of the stakeholder.</p> <p>4. Contracts — Affecting Election to Office — Corrupt Bargains Concerning — Right of Parties to Recover Deposit Prom Stakeholder. —Contracts having a tendency to injure the public service, or interfere with the free exercise of the elective franchise, or that affect public offices, are in a class distinct from mere gambling contracts, and the rule that a party to a gambling contract can recover the deposit from the stakeholder before it has been paid over, does not apply to them.</p> <p>5. Contracts — Affecting Election to Office — Corrupt Bargains Concerning — Right to Recover Money From a Stakeholder. — Parties concerned in corrupt bargains affecting the elective franchise, or that involve the trading or trafficking in public- offices, cannot come into court and obtain relief on acount of anything connected with or arising on such contracts unless it affirmatively appears that the party asking such relief has in good faith rescinded or repudiated, or attempted in -good faith to rescind or repudiate, the contract before anything material looking to its accomplishment had been done by any person connected with it.</p> <p>6. Contracts — Affecting Election to Office — Corrupt Bargains Concerning — When Money May he Recovered From a Stakeholder. — ■ If a party who has made a corrupt bargain affecting a .public office, or. the elective franchise, and pursuant thereto has made a deposit with a stakeholder, he may recover the deposit from the stakeholder beforé it is paid over, if he can affirmatively show that after entering into the -contract he changed his mind and in good faith abandoned the contract and everything connected with it.</p>

<p>1. Abatement and Revival — Another Action Pending. — To sustain the plea of another action pending, it is essential that it shall appear, not only that there is a prior action pending between substantially the same parties, but also that the cause or causes of action and the issues involved are substantially the same in the two suits.</p> <p>2, Abatement and Revival — Another Action Pending. — The pendency of .a suit involving the partition of the lands of a decedent and equalization of advancements among his heirs will abate a subsequent suit involving the same issues and asking for a settlement of the decedent’s estate, where the issue of settlement is eliminated by demurrer.</p>

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

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

<p>1. Limitation of Actions — Suspension of Kentucky Statutes. — tinder the .provisions of section 2532, Kentucky Statutes, the running of the statute of limitations will be suspended by any obstruction to the prosecution of the action which may be created by indirect means employed by the defendant during the existence of such obstruction, but to constitute the obstruction the defendant must be guilty of some fraudulent concealment or other conduct calculated to disarm the plaintiff and to deceive him as to his rights and to cause him to refrain from filing his suit when he otherwise desired to and would have done so but for the obstructive acts of the defendant.</p> <p>2. Limitation of Actions — Suspension of. — Mere ignorance of the facts on the part of plaintiff with, a declination of the defendant to inform him, when the defendant is under no confidential relations of trust or otherwise requiring him to furnish such information, will constitute such obstruction as will prevent the running of the statute, nor will a mere promise by the defendant to continue to pay the plaintiff his wages constitute such obstruction, unless the promise assumes the form of a binding obligation supported by sufficient cause.</p> <p>3. Limitation of Actions — Obstruction to Running of Statute. — Plaintiff was employed by G., who was the owner and operator of a business in his individual name, and who was a partner in a similar business being conducted by a firm which was later incorporated in the partnership name and plaintiff worked in the busi- ■ ness of the partnership and that of the corporation after it was formed and was injured. The fact that he claimed not to know which one of the two concerns was his employer is not sufficient to constitute an obstruction to the running of the statute of limitations as is contemplated by section 2532 of the statutes.</p>

<p>Joint Tenancy — Adverse Possession — Limitation of Actions. — ■ Where one joint tenant has openly denied the title of his co-tenant and been in possession of and claiming the land himself, exclusive of the co-tenant, for more than thirty years, and his holding of such possession has been so open and notorious against that of the co-tenant as to manifest a repudiation of the latter’s right, such holding will be regarded as adverse, and any right the cotenant or his heirs may have had in the land will be barred by both the-fifteen-year and the thirty-year statute of limitations.</p>

<p>1. Injunction — Breach of Contract — Multiplicity of Suits. — Pending final hearing and determination of the case an injunction will he granted to prevent the breach of a contract, where the breach of the contract, the insolvency of the defendant, the inadequacy of any other remedy, the probability of a multiplicity of actions and the irreparable loss to which the plaintiff would be subjected if denied the injunction, are shown.</p> <p>2. Injunction — Against Persons Not Parties to Contract. — Pending final hearing and determination of the case an injunction will be granted against persons not parties to a contract of sale to prevent their interference therewith, where it appears that they are attempting to purchase amj. receive from the defendant the subject of his contract with the plaintiff, and are not innocent purchasers, and unless they are restrained from interference with the contract plaintiff will be deprived of any benefit thereunder and will have no adequate remedy at law for its breach.</p>

<p>1. Infants — Appeal From Judgment. — An infant may appeal from a judgment against bim in an action wherein he was a defendant, at any time from the rendition of the judgment until the expiration of one year from the attainment of his majority.</p> <p>2. Infants — Appeal by Guardian ad Litem. — A guardian ad litem for an infant defendant may appeal to the Court of Appeals, in the name and for the infant, from a judgment against the infant at any time within two years from the rendition of the judgment, but not thereafter.</p> <p>3. Infants — Appeal by Guardian ad Litem. — An appeal of an infant defendant, who is not under coverture may be taken for the infant from a judgment against him to the Court of Appeals at any time after the judgment until the infant arrives at twenty-one years of age by a statutory guardian, next friend or guardian ad litem, but the guardian ad litem may not take such appeal after two years from the rendition of the judgment.</p> <p>4. Infants — Representative of Infant. — The representative of an infant mentioned in section 745, Civil Code, is not a statutory guardian, or guardian ad litem or next friend, but the real or personal representative of the infant after his death.</p>

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

<p>1. Carriers — Action fgor Damage — Summons.-—In an action against two carriers for loss and damage to a car load of corn, where tbe action was brought in the county of the residence of the initial carrier, and summons is served upon the agent of the subsequent carrier in another county, under the provisions of section 73, Civil Code, providing that an action may be brought in the county in which the contract is made: Held that the contract being made in the county of the residence of the initial carrier, and the initial carrier being the agent of the subsequent carrier the subsequent carrier was properly held to be before the court upon such service of summons, and the motion of the subsequent carrier to quash the return on the process was properly overruled.</p> <p>2. Carriers — Initial Carrier Agent of Subsequent Carrier. — Where property is delivered to a carrier to be shipped over the lines of several connecting carriers, the initial carrier in making the contract of shipment, and in accepting the property for shipment over said lines of railroad, acts as the agent of the subsequent carrier, in making the contract, and not as the agent of the shipper.</p> <p>3. Carriers- — Bankruptcy of Shipper — Purchaser of Book Accounts May Sue For Loss. — Where, after the damage was done to the corn shipped, the person who owned and shipped the corn was adjudged a bankrupt, and his “book accounts” were sold by order of the bankruptcy court, tbe person purchasing the “book accounts” may bring an action for loss and damage where the bankrupt and the trustee in bankruptcy join in said action as party plaintiffs and assist in the prosecution of the claim since by such action they will be forever barred from taking any further action on the claim.</p> <p>4. Carriers — Responsibility of Initial Carrier. — Under the “Carmack Amendment,” act of Congress, 1906, the initial carrier is responsible to the shipper for the entire loss or damage, whether occurring upon its line or the line of a subsequent carrier, but the subsequent carrier is liable to the initial carrier for whatever loss or damage might occur on its line, or, the shipper may recover from a subsequent carrier the loss or damage actually occurring while goods or property are in its possession, but in such case the burden is upon the shipper to prove the actual loss or damage done by such carrier.</p>

<p>1. Divorce — Discretion Given to Chancellor to Grant — Statutes.—The discretion given the chancellor by section 2121 of the Kentucky Statutes, to grant a divorce from bed and board for a cause other than the statutory causes which allow an absolute divorce, is neither arbitrary nor unlimited, but must arise from a state of fact showing that a separation is demanded for the interest and protection of the life, health or happiness of the party complaining, on account of the conduct and treatment of the one in default.</p> <p>2. Husband and Wife — Fraud of Husband — Restoration of Property.— Dealings between husband and wife, whereby the husband obtains possession of the wife’s property, without consideration, are looked upon with suspicion; and actual fraud need not be established to authorize a restoration of the property.</p> <p>3. Husband and Wife — Conveyance by Wife to Husband — Restoration of Property to Wife. — Where a wife was induced to have real estate for which she paid the purchase price, conveyed to her and her husband jointly, by threats on his part of a separation in case she refused to comply with his request, a court of equity will require him to restore the property to his wife.</p> <p>4. Husband and Wife — Lien of Husband for Purchase Money Paid. — ■ Where a husband is required to convey to his wife an interest in land which he had obtained from her through undue influence, he will be given a lien upon the land for so much of the purchase money as he paid.</p> <p>6. Husband and Wife — Rents—Husband Must Pay. — Where a husband, by the exercise of undue influence, obtained title and possession of land bought by his wife, and is required to surrender the land to her, he will be required to pay a reasonable rent for the land from the day the suit demanding the land was filed.</p>

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

<p>1. Master and Servant — Damages—Action for by Railroad Conductor —Recovery—Rules.—In an action for damages for injuries received by a conductor in charge of a work train, engaged in hauling dirt and rock, in the railroad yards at Paris, Ky., caused by the caboos© of his train, in which he was riding at the time of the accident, being struck by a light engine, the plaintiff was entitled to recover, where it is shown that the rule of the company requiring freight trains to approach yard limits under control, and at a speed of not more than 6 miles per hour, and that the light engine which struck plaintiff’s work train was running from thirty to thirty-five miles per hour, thereby violating the rules of the company and at a time when the plaintiff was not violating any rules, and would not have been injured but for said violation of the rules by the trainmen in charge of the light engine.</p> <p>2. Master and Servant — Injury to Conductor — Information Given by Train Dispatcher. — Plaintiff had a right to rely upon the information given him by the train dispatcher as to the arrival of trains; and, where it is shown that plaintiff, on the morning of the injury, inquired of the dispatcher what train would arrive from the south first, and the train dispatcher informed him that train No. 42 due at Paris at 10:10 A. M. would be the first, when in fact train No. 72, which struck plaintiff’s caboose had not arrived and was long past due, plaintiff was not negligent in failing to ascertain that fact, as he had received information ■ from an officer superior to him, supposed to possess such knowledge, that No. 42 would be the first to arrive.</p> <p>3. Evidence — Competent for Railroad Employee to- Testify as to Rules, —It is competent for a plaintiff having twenty-three years’ experi ence as a railroad man, to testify as to the application of the company’s rules, in every day practice by the company and employees,,</p> <p>4. Evidence — Construction of Rules of Employer — Instructions.—■ Where there are written rules introduced in evidence, it is the duty of the trial court to construe such rules, and to instruct the jury as to whether the circumstances in the case justify the application of the rules.</p> <p>5. Trial — Submission.—The jury is the best judge of the facts, and where there is conflicting evidence upon the facts, the case should be submitted to the jury.</p> <p>6. Appeal and Error — Damages—When Verdict for Not Excessive.— A verdict for $20,000 damages in favor of a freight conductor, who received such severe injuries that he was unable to do anything, and was a physical wreck, and the injuries are shown to be permanent, is not excessive, where at the time of the injury he was a strong, vigorous man, 46 years of age, and earning from $145.00 to $150.00 per month,</p>

<p>1. Appeal and Error — Evidence.—Where no objection is taken upon the trial to the introduction of incompetent testimony, the admission of the incompetent testimony cannot be taken advantage of upon appeal.</p> <p>2. Divorce — Appellate Jurisdiction — Alimony, Maintenance and Fees. —The Court of Appeals is without jurisdiction to reverse a judgment granting a divorce; it has jurisdiction, however, to examine the facts of the case in order to determine the questions of alimony, maintenance of children, and an attorney’s fee for the wife.</p> <p>3.' Divorce — Alimony—Evidence.—In an action for a divorce, the right of alimony will follow if the wife is granted the divorce; and, although the proof may not justify a divorce, alimony may, nevertheless, be allowed.</p> <p>4. Divorce — Duty o£ Husband to. Support Wife and Children. — It is the husband’s duty to support his wife and children; and, where the wife is granted a divorce he is in ho way relieved of that duty by the fact that- he does not own any property.</p> <p>5. Divorce — Attorneys’ Fees. — Where the wife who obtained a divorce, is wholly without estate, her husband will be required to bay the • wife’s attorney a reasonable fee for his services in the divorce case.</p>

<p>1. Banks and Banking — Wrongful Acts of Officers. — Wrongful acts of an officer of a bank, done in tbe interest of tbe bank, or in tbe course of tbe dealings of tbe officer as tbe representative of the bank, may be attributed to tbe bank; but a bank cannot- be held liable for the wrongful acts of its .officers done in their purely individual capacity.</p> <p>2. 'Banks and Banking — Knowledge of Acts of Officers. — A bank is to be charged with tbe knowledge acquired by its cashier, or other officer, pertaining to transactions within the scope of tbe bank’s business, although such knowledge be acquired in another transaction than that to which it relates.</p> <p>3. Banks and 'Banking — When Knowledge of Act of Officers Not Im- ■ puted to Bank. — When a bank officer is individually interested in a note or other matter pertaining to the bank’s affairs, tbe better opinion is that his knowledge is not to be imputed to his bank, since his interest is best served by concealing it.</p> <p>4. Principal and Agent — Knowledge of Agent. — A principal is not charged with the knowledge of his .agent when the agent is engaged in committing an independent fraudulent act on his own account, and the facts sought to be imputed to his principal relate to this fraudulent act.</p> <p>5. Corporations — Knowledge of Officers. — The exceptional rule which does not impute the oficer’s knowledge to his corporation when the officer is acting in his own interest, does not‘apply when the officer, of the corporation, though he acts for himself or a third person, is also the sole representative of the corporation in the transaction. Citizens Savings Bank v. Walden, 21 Ky. L. R. 739, 52 S. W. 953; Mutual Life Ins. Co. v. Chosen Friends Lodge, 29 Ky. L. R. 394, 93 S. W. 1044.</p>

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

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

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

<p>1. Constitutional Law — Statutes—State Racing Commission. — Section 3990a, Kentucky Statutes, establishing a State Racing Commission, giving to said commission the power to prescribe the rules', regulations and conditions under which running races shall be conducted, and outlawing all such races, except as licensed by the commission, which is also given the power to revoke or refuse to issue or renew a license, for any violation of such rules, subject to the review of a court of competent jurisdiction, has for its purpose the encouragement of the industry of breeding thoroughbred horses in the state, and the authority conferred upon the commission to ascertain the conditions which would effect the legislative intent, and to adopt rules, regulations and conditions in accordance therewith, as conditions precedent to the right to conduct such races, is a valid exercise of the police power of the state, and not objectionable as an unconstitutional delegation of legislative powers to a ministerial body, the acts of ascertaining the conditions that would best effect the legislative intent, and adopting rules, regulations and conditions to that end, being purely ministerial and in no sense legislative in their nature.</p> <p>2. Constitutional Law — Equal Protection of the Laws — Ministerial Body. — The act of a ministerial body, invested with power to ascertain the conditions that will carry out the purpose of the legislature in adopting a certain law, is not unconstitutional, as denying the equal protection of the laws guaranteed by the federal constitution, merely because it prescribes different rules, regulations and conditions with reference to different classes or with respect to the same class under different conditions, the application thereof being uniform under like conditions;.</p> <p>3. Constitutional Law — Due Process of Law — Races.—The adoption of certain rules, the compliance with which is made a condition precedent to the right to conduct running races, is not a taking of property without due process of law, as no- one has an inherent right to operate a race track in this state.</p> <p>4. Statutes — State Racing Commission — Powers of. — The State Racing Commission has the power to regulate the amount of purses to be offered for running races in the state, provided, of course, the regulations are in accordance with the conditions existing in different parts of the state and are reasonable and uniform under like conditions.</p>

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

<p>1. Deeds — Quit-claim Deed — Effect of. — A quit-claim deed only transfers to tbe vendee whatever interest the vendor possessed at the time, and the vendor is not precluded from subsequently acquiring a valid title to the land covered by his quit-claim deed.</p> <p>2. Deeds — Quit-claim Deed — When Vendor Estopped to Acquire Title Hostile to Vendee. — If a vendor by a quit-claim deed sells land to which he holds the equitable title and afterwards secures the legal title, he will hold the legal title for the benefit of his vendee and cannot assert title under it or in opposition to his vendee.</p> <p>3. Deeds — Quit-claim Deed — Estoppel of Vendor to Assert Title in Opposition to Vendee. — Where a vendor conveyed land by a quitclaim deed and thereafter secured for his vendee a deed from the real owner of the land covered by the quit-claim deed, the vendor will be estopped from thereafter obtaining for himself a deed from this owner, although the deed made to the vendee by the owner was invalid on account of the infancy of the owner.</p>

<p>1. Schools and School Districts — Common School Funds — Unlawful to Use in Aid of Sectarian School. — Under section 189 of the constitution, no fund now existing, or that may hereafter be raised or levied for educational purposes, can be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.</p> <p>2. Schools and School Districts — County High Schools — Conversion of Sectarian School Into High School Illegal. — Any arrangement ®r contract between the board of education of the county or other school authority by which a sectarian school is treated as a county high school and common school graduates allowed to attend it for a stipulated tuition fee paid by the board of education, is prohibited by the constitution and void.</p> <p>3. Schools and School Districts — Contracts Between Trustees of Graded School and Sectarian School — When Void. — A contract between the ■ trustees of a graded school and a sectarian school) by which the sectarian school leased to the graded school two rooms in its school building, and turned over the control and supervision of the graded school to the president of the sectarian school, was void as in violation of the constitution.</p> <p>4. Schools and School Districts — Separation of Common School and Sectarian School. — The constitution not only forbids the appropriation for any purpose of the common school funds to sectarian institutions but it contemplates .that the separation between the common school and the sectarian school shall be open, notorious and complete.</p> <p>6. Schools and School Districts — Union of Common and Sectarian School Forbidden Although Beneficial to Children of Common School. — The fact that under an arrangement between the common school and the sectarian school the common school gets the advantage of the services of teachers of the sectarian school and the children of the common school derive benefits from the union they would not otherwise have, or the fact that the arrangement is approved by a majority or all of the patrons of the common school, does not justify its existence or continuance.</p> <p>6. Schools and School Districts — Unlawful for Trustees of Common School to Enter Into Arrangements With Sectarian School. — It is a violation of the constitution for the trustees of any common or graded school or educational institution supported in whole or in part by public funds, to enter into contracts, agreements or arrangements through or under which such school may be brought directly or indirectly under the influence, control or supervision of any sectarian institution or school.</p>

<p>1. Highways — Negligent Operation of Automobile-Fright of Horse —Damages.—In an action for personal injuries resulting from the fright of a horse, alleged to have been caused by the negligent operation' of defendants’ automobile, it was error to submit to the jury, as a basis for a recovery by plaintiff, acts of negligence on the part of defendants’ servant, which are not shown by the evidence to have contributed proximately to causing the accident.</p> <p>2. Highways — Negligent Operation of Automobile — Fright of Horse-Damages. — Where in such action there is evidence to the effect that the defendants’ servant was so negligently operating defendants’ automobile that it emitted loud, unusual and unnecessary noises and that the horse drawing the vehicle in which plaintiff ■ was riding was frightened thereby and overturned the vehicle in which plaintiff was riding, the plaintiff is entitled to recover If the jury believe that the fright of the horse was caused by such negligent operation of the automobile.</p> <p>3. Negligence — Contributory Negligence. — The contributory negligence of the driver of a conveyance in which plaintiff was riding cannot be imputed to plaintiff, the evidence not showing that the relation of master and servant or principal and agent existed between them or that they were engaged in a joint enterprise.</p>

<p>1. Deeds — Gifts—Evidence.—The existence of a relation of special trust and confidence between the grantor and grantee in a deed executed without valuable consideration, puts upon the grantee the burden of showing by clear; convincing and satisfactory evidence, that the deed was the voluntary and intelligent act of the donor; but where the evidence shows that the gift was at the insistence of the grantor, who was capable of understanding the nature of the act and of intelligently disposing of her property, and the grantee did not, in any way, influence her to make it, the deed will be upheld.</p> <p>2. Deeds — Gifts—Evidence.—Evidence that the grantee, after the grantor had signified her intention to make the gift, asked the advice of his employers, of whom the grantor was a client, as to the advisability of accepting the gift, tends to show good faith on his part, rather than the contrary.</p>

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

<p>1. Appeal and Error — When. Verdict Will be Set Aside. — Under subsection 6, section 340, of the Civil Code of Practice, this court ' will set aside the verdict of a jury when it is flagrantly against the evidence, although it will not do so if the verdict is against the preponderance of the evidence.</p> <p>2. New Trial — Evidence.—Plaintiff lost his limb from the effects of blood poison resulting from the appearance of a pimple or boil near his knee. The blood poisoning appeared about the 23rd of August, and his limb was amputated on September 1, following. After recovering from the operation he filed suit against his master, the North Jellico Coal Co., alleging that on the 13th of August he sustained an injury from the fall of some slate which was the result of negligence of the master. He said nothing about this injury until after his limb was amputated, claiming all the while that he had a pimple or boil on his limb, and even denied to his physician that he had sustained any injury. He failed to report the alleged falling of the slate to any of the officers of the mining company, nor did any of them learn of any such injury, neither did the employers whose duty it was to remove the slate ever hear of any such injury or discover any fallen slate. The evidence of the physicians is. to the effect that the blood poisoning could scarcely have developed from the injury which plaintiff describes, especially as late as it did in this instance. Held, that the verdict of the jury finding that the injury occurred, or that the blood poison was the result of it is each flagrantly against the evidence, and defendant is entitled to a new trial.</p>

<p>1. Schools and School Districts — School Elections — Registration of Voters at. — At special elections held under the general graded common school laws of the State for the purpose of establishing a graded school or to vote bonds or taxes in aid of the school, the voters are not required to be registered as a pre-requisite to voting, although many of them may live in a city where registration is required.</p> <p>2. Schools and School Districts — School Elections — Registration of Voters at. — At school elections held on regular election days or under charter provisions in cities or towns where registration is required, registration is a pre-requisite to voting, both by women and men.</p> <p>3. Contracts — Validity of Contract Between Member of School Board and School Board. — A contract affecting property rights made by a member of the school board with the school board is void.</p> <p>4. Schools and School Districts — Graded Schools — Notice of Election — Who Must Sign. — Notices calling a special election for the ■purpose of voting bonds in a'graded school district will be sufficient if signed by some member of the board who has been anthorized by the board to sign the notices. If the notices are signed by the president or secretary, it will be presumed that the election was ordered by the board and that these officers had the authority, either or both of them, to sign the notices calling the election.</p>

<p>1. . Ejectment — Adverse Possession — Evidence.—Where in an action of ejectment the evidence of actual, adverse possession of the land, sued for by the plaintiff, for the statutory period is uncontradicted, the introduction of evidence to show in him a paper title to the land is unnecessary.</p> <p>2. Adverse Possession — Limitation of Actions. — A parol agreement between the plaintiff and an adjoining land owner from whom the defendant derived title, fixing the dividing line between their lands, even in the absence of a bona fide dispute as to its true location, and which agreement was immediately followed by the erection at their joint expense of a fence upon the agreed line and the actual, adverse possession by the plaintiff for fifteen years of the land on his side of such fence up to the fence, such possession barred any right of defendant to take possession of any part of the land on the plaintiff’s side of the fence.</p>

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

<p>1. Deeds — Action to Cancel Deed — Evidence.—In an action seeking the cancellation of a deed by a woman, who had conveyed her farm to a coal company, and who in said action, relied upon the grounds that the company’s agents caused her to execute the deed by coercion, and that she did not have sufficient mental capacity to transact her husiness and to know and appreciate the legal effect of such transfer; Held, that the evidence introduced was not sufficient to show mental incapacity of the plaintiff, or coercion on the part of the company.</p> <p>' 2. Deeds — Ratification—Estoppel.—Where, after a sale and transfer was made, the grantor leased the property from the grantee for nearly threei years, holding the property as the tenant of the grantee, and had not surrendered the possession at the time action was brought, the grantor by such action, ratified the deed, and is now estopped to say that she is not bound by the conveyance.</p> <p>3. Deeds — Inadequacy of Price. — Mere inadequacy of consideration is insufficient to set aside a deed, where it is unaccompanied by fraud or duress.</p>

<p>Intoxicating Liquors — Illegal Sale — Nuisance—Injunction.—In the absence of a statute conferring such power, courts of equity will not, at the instance of the Commonwealth, enjoin the use of a building for the mere sale of intoxicating liquors on Sunday.</p>

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

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

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

<p>1. Adverse Possession — Patents—Title.—Where one claiming to be the owner of several adjoining tracts of land, to all of which, save two small parcels of vacant .land, he has acquired title, takes actual possession of same by fixing his residence upon some part thereof and causing a line surrounding them to be surveyed, well defined and marked, so as to embrace the whole; and for as much as fifteen years continues such actual possession thereof adversely to all others, claiming the whole to the well defined, marked boundary surrounding all of them, another or others obtaining a patent or patents to one or both of the vacant tracts included in such boundary, after- such actual, adverse possession of fifteen years, will acquire no title thereto under or by virtue of such patent or patents.</p> <p>2. Adverse Possession — When Patent Will Not Confer Legal Title. — ■ Although one may claim title to land under a patent from the State, the patent will confer on him no legal title, to the land, if another has by previous actual, adverse possession for fifteen, years, acquired title thereto dehors a patent.</p>

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

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

<p>Appeal from Clg.rk Circuit Court.</p>

<p>Powers — Joint Donees — Survivorship — Deed — Construction. — A deed conveying land to Amanda T. Cassell, wife of Eugene A. Cassell, and their children, contained the following provision: “....; the said Amanda T. Cassell and Eugene A. Cassell are empowered and authorized to sell and convey said land after the lien herein retained shall have been fully paid off and discharged, if they desire to do so, apd their conveyance shall create in the purchaser a perfect title to said property freed from any claim of said children.” Held, that as the grantors were strangers to the grantees and received full value for the land, no question of trust or confidence is presented; and that as the purpose of the deed was to provide for a sale of the land during the infancy of the children, it was not the intention of the parties that this purpose should be defeated by the death of the husband, but that the power survived to the wife to be exercised for the benefit of herself and children.</p>

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

<p>2. Wills — Validity—Undue Influence. — To show undue influence sufficient to invalidate a will, it is not enough that there was an opportunity to exercise such influence, or a possibility that it was exercised, but there must be substantial evidence that it actually was exercised.</p> <p>2. Wills — Validity—Undue Influence. — Reasonable influence obtained by acts of kindness or appeals to the feelings or understanding is not undue influence which will invalidate a will, but it must be shown that the influence was such as to destroy the testatrix’s free agency and to constrain her to do against her will what she would otherwise have refused to do.</p> <p>3. Wills — Contests—Sufficiency of Evidence — Undue Influence. — In a will contest, evidence of undue influence considered and held insufficient to take the case to the jury.</p>

<p>1. Negligence — Explosives—Dangerous Things Attractive to Children — Rule as to. — Although the rule is well established in this state, that one who artificially brings or creates upon his premises any dangerous thing, which, from its nature, has a tendency to attract the childish instincts to play with it, is bound, as a matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity, this duty does not exist, where the owner or occupier of the premises has not created or brought thereon the dangerous thing, and has no knowledge of its presence on his premises.</p> <p>2. Explosives — When Owner of Premises Under No Duty to Inspect.— The owner of premises, who has no reason for suspecting the presence thereon, of dangerous explosives, such as dynamite caps, is under no duty of inspection, to see that no such dangerous instrumentalities may have been placed thereon.</p>

<p>1. Easements — Prescription—Permissive Use — Adverse Character of Use. — A right by prescription to a passway is founded upon the presumption of a grant, such presumption arising from the adverse, uninterrupted and continued use of the passway by the person asserting the prescriptive right thereto for the statutory period of limitations. But when it is made to appear that the use of the passway was accorded to the claimant by the owner of the land as a mere privilege, the character of the passway is established and the claimant’s right to the use thereof continues to be permissive until something is done to bring notice to the owner of the land that the character of the use has been changed. For one cannot enter upon the use of a permissive privilege and claim, after a lapse of time, that he intended during the while that it should be as of right and in spite of the owner’s will, and thereby gain a -title to it.</p> <p>2. Easements — Prescription—Change of Passway. — The right of the public or an individual to a passway, when properly acquired by prescriptive use is not lost by mere changes in the passway, where such changes are so slight as to make little difference in the location of the passway or its use. But this rule does not apply where a new passway, without closing the old and long-used one, is opened leading from it, having- new termini and a wholly different course..</p>