Volume 174 — Kentucky Reports

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

<p>L. Taxation — Omitted Property — Assessment.—The proceeding for the assessment of omitted property by the revenue agent provided by section 4260 of the Kentucky statutes is a special means provided for the assessment of omitted property, and the statute must be strictly followed. In such proceeding neither the county nor any citizen has a right to interfere by intervening pleading to prevent the assessment of the property because not owned by the defendant, or, if owned, that it is not located within the county, as this is no place to try title to land.</p> <p>2. Taxation — Omitted Property — Assessment.—Even if such questions could be raised by an adverse claimant to the land, it would still be incompetent for the county as such to do so.</p> <p>3. Taxation — Omitted Property — Assessment.—In such proceeding the court is the sole trier of all questions of fact and law, and it is incompetent to submit the questions of fact to a jury.</p>

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

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

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

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

<p>1. Pleading — Interpleader—Intervening Petition. — An intervening .petition filed by creditors against tbe defendant, more than a year after the commencement of the original action, is a civil action, and is of the same effect as an original petition in a civil action.</p> <p>2. "Limitation of Actions — Interpleader—Sale of Goods in Bulk. — The limitation of 90 days for the bringing of an action against the purchaser of a stock of goods in bulk, as provided in section 2651a, Kentucky Statutes, is mandatory, and creditors cannot avoid this provision by filing an intervening petition long after the expiration of the 90 days.</p>

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

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

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

<p>1. Criminal Law — Homicide—Conspiracy—Instruction.—In a criminal prosecution charging the defendants with committing murder pursuant to-a conspiracy, the trial court qualified the self-defense instruction by telling the jury that they could not acquit the defendants on the ground of self-defense or the defense of each other, if the jury believed as in instruction No. 7. By the first part of instruction No. 7,' the jury were told, in substance, that if the defendants conspired to kill the deceased and did kill him pursuant to, and during the existence of, such conspiracy, they should not acquit the defendants on the ground of self-defense or defense of another or apparent necessity therefor, and then added the following: “ . . . ; and the court further instructs you that if you believe from the evidence beyond a reasonable doubt that K. D. Rogers first began the difficulty by shooting at K. H. Keach or by making a demonstration as if to shoot the said Keach, then also in that event you will not acquit the defendants or any of them on the ground of self-defense or defense of another or apparent necessity as set out in instruction No. 6.” Held, that as the quoted part of the instruction deprived the defendants of the right of self-defense if Rogers began the difficulty by shooting or attempting to shoot Keach, and that, too, even though no conspiracy was shown, that part of the instruction was Clearly erroneous and prejudicial.</p> <p>2. Criminal Law — -Homicide—Aiders and Abettors — Instruction.—An Instruction telling the jury to find certain defendants guilty, if they aided and abetted the principal defendant, who shot the deceased, is subject to criticism, in that it authorized a conviction, regardless of whether the act of the principal defendant was justifiable or not.</p> <p>3. Criminal Law — Arrest—Duty of Posse — Instruction.—It is the duty of a person summoned by an officer to assist in making an arrest to render such assistance, and on a trial of the members of such posse on the change of murder the court should so instruct the jury.</p> <p>jt. Witnesses — Impeachment.—A female witness may be impeached by evidence of her bad reputation for chastity and virtue.</p> <p>6. Criminal Law — Res Gestae — Exclamation of Bystander — Evidence. —Exclamations of a bystander in no way connected with the main fact are not admissible in evidence as part of the res gestae.</p> <p>6. Criminal Law — Threats—Identity of Person Threatened — Evidence.' —On a prosecution for murder, evidence of a threat is not admissible where neither the language employed nor the attendant circumstances is sufficient to identify the person threatened.</p> <p>7. Witnesses — -Impeachment.—Under section 597 of the Civil Code, ■providing that a witness may be impeached, but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony, a witness may not be impeached by being asked and required to answer the question “Are you the boy that is under parole?”</p> <p>8. Criminal Law — Incriminating Remark — Opportunity to Explain— Evidence.- — Where, in a -criminal prosecution, a witness for the - Commonwealth testifies to a certain remark made by the defendant and the defendant is subsequently put on the stand and asked if he made the remante, the court should not conclude the matter by -requiring the defendant to answer either yes' or no without giving him an opportunity to give the exact conversation which he claims took place.</p> <p>9. Criminal Law — -Witnesses—Impeachment.—Where the Commonwealth seeks to impeach a witness by showing that his testimony before a coroner’s jury, which was not reported by a stenographer, was different from that when he testified the next day in the presence of a stenographer, evidence of a member of the coroner’s jury as to what the witness did say when no stenographer was present was improperly rejected.</p> <p>10. Criminal Law — Res Restae — Evidence.—Where, in a prosecution of several defendants for murder, one of the defendant’s immediately after the deceased is shot picks up the latter’s pistol and fires at another, such act is admissible in evidence against such defendant as part of the res gestae, but is not admissible against the other defendants.</p> <p>11. Criminal Law — Appeal and Error — Scope and Extent of Review— Selection of Jury. — The action of the trial court in selecting the jury from an adjoining county in a criminal prosecution is not subject to review.</p>

<p>1. Appeal and Error — Findings—Conclusiveness—Equity Cases. — ■ Where the evidence is- conflicting and the mind is left in great doubt as to the whole case, so that the Court of Appeals cannot determine with reasonable certainty that the chancellor erred, his findings will not be disturbed.</p> <p>2. Arbitration and Award — Real Property — Estoppel.—Real property is a proper subject of arbitration at common law, and though deeds be not made or ordered to be made by the arbitrators, the award acts as an estoppel and precludes the losing party from thereafter denying the superior title of the other parties to the proceeding.</p> <p>3. Arbitration and Award — Real Property — Sufficiency of Description — Validity of Award. — Where, under a written contract, certain parties awning lands on Beaver Creek in Wayne County, Kentucky, agreed to submit a dispute as to their titles to certain arbitrators selected by them and to submit their proof and title papers to the arbitrators, the following award: “We find for the defendants, that is to say, we award to defendants, who have patent land all the land within their respective boundaries and to Absalom Miller, the remainder of the boundary of his big survey, this October 30th, 1875,” is not void for uncertainty, since, by referring to the patents, it furnished the means of identifying the lands involved, and not only the parties, but any person of common sense, by resorting to these means could tell exactly what was decided.</p> <p>4. Adverse Possession — Adjoining Land. — The rule that where one takes title to unoccupied land adjacent to that upon which he lives and in which he claims the fee, his possession extends to the outside boundary of the newly acquired land, does not apply where the newly acquired land is held by another under a superior title. On the contrary, the rule is that a party who enters upon iand to which he has title cannot, as against the superior title holder, extend his -possession to an adjoining tract of land and acquire title thereto by adverse possession, without actually entering upon such -adjoining tract and holding it adversely for the statutory period.</p> <p>5. Estoppel — Lands—Title.—The fact that defendant loaned plaintiff $200.00, secured by a mortgage on the tract of land in controversy and another tract, and the proceeds of the loan was used by plaintiff to purchase the outstanding interests of his brothers and sisters in the tract in controversy, will not estop the defendant from asserting title to the tract in controversy, where the evidence fails to show that the defendant knew at the time the mortgage was given that plaintiff’s title conflicted with his title, or of the purpose for which the loan was used.</p> <p>6. Boundaries — Surveys—Contents—Evidence.—A recovery of land by plaintiff- under an inferior patent may be defeated by the defendant’s showing that the land is embraced in his prior -patent without showing that it is outside of the exclusions theretofore patented, the reason being that if outside of the exclusions, it is covered by defendant’s patent, but if inside the exclusions, it is covered by a prior patent, and in either event, plaintiff’s patent-is void.</p>

<p>Appeal and Error — Finding of Chancellor. — In this case, only questions of fact are involved, and the evidence is so conflicting, that the mind is left in doubt as to the truth of many of the matters in dispute, and the judgment of the chancellor, who, doubtless, knew the parties and witnesses, will not be disturbed.</p>

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

<p>1. Schools and School Districts — Graded Schools — Officers to Hold Election for Trustees. — After a graded school has been established, the trustees have the right to appoint the officers of election, and one judge and a clerk appointed by the board may hold an election for trustees.</p> <p>2. Elections — Officers Must Sign Election Returns. — An officer of election cannot refuse to sign the election returns on the ground that over his protest illegal votes were cast or legal votes rejected. He must sign and certify the returns as they appear at the close of the election, although, as a matter of fact, illegal votes may have been cast or legal votes rejected.</p> <p>3. Elections — Mandamus—To Compel Officers to Sign and Certify Returns. — Officers of election may be compelled by mandamus to sign and certify election returns.</p>

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

<p>1. Bills and Notes — Maturity of Installments. — The maturity of a series of installments composing one entire debt may be accelerated upon the failure to pay any one of them, or past due interest on them, by agreement of the parties contained either in the notes evidencing the payments of a mortgage or debt securing them.</p> <p>'2. Bills and Notes — Default in Payment — Maturity of Installments. — • G. executed a deed to S. for a tract of land, a part of the consideration for which was four notes for $500.00 each, and in the deed it was provided that all of the notes should become due upon the default of payment of either of them, or the interest on them, which was payable annually. Held, that upon default of payment of past due interest, as provided in the deed, G. could maintain his suit for the recovery of the entire debt and the enforcement of his retained lien.</p> <p>3. Contracts — Consideration—Sufficiency.—A mere proposal to pay past due interest, without the tendering of the amount, and without consideration, will not support a, promise to defer the collection of the interest.</p> <p>4. Judgment — Clerical Misprision — Review.—Where a judgment is rendered for more than the correct amount as shown by the pleadings, it is a clerical misprision and should be corrected by motion made in the trial court, and cannot be reviewed by the Court of Appeals without the motion having been made.</p> <p>5. Frauds, Statute of — Compromise and Settlement — A compromise of differences between plaintiff and defendant involving the sale of land cannot be effectual as such when the compromise is in parol only, as its terms cannot be enforced _ because within the statute of frauds.</p>

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

<p>1. Fraudulent Conveyances — Preference—Statute—Sufficiency of Evidence. — In an action by a creditor to have a mortgage executed) by a son to his mother adjudged a fraudulent preference and to operate as an assignment of the son’s property for the benefit of all of his creditors, evidence examined and held to sustain the finding of the chancellor that the mortgage was executed by the son in contemplation of his insolvency, and with the design to prefer his mother to the exclusion of other creditors.</p> <p>2. Fraudulent Conveyances — Mortgage — Preference — Parol Agreement to Execute Mortgage — Evidence.—In an action attaching a mortgage as a fraudulent preference, evidence examined and held insufficient to show that the mortgage was made pursuant to an oral agreement by which the mortgagor’s interest in his father’s estate should stand good for the debt.</p> <p>3. Fraudulent Conveyances — Preference—Mortgage—Agreement Not to Prosecute Suit — Consideration.--An agreement by a mortgagee who has filed suit against the mortgagor not to prosecute the suit is not sufficient consideration for the execution of a mortgage, the necessary effect of which is to constitute a fraudulent preference under the statute.</p>

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

<p>Attorney and Client. — Evidence examined and conclusion reached that it did not so sufficiently show that the relation of attorney and client existed as to prevent the attorney from making a contract that he would not have been allowed to make if the relation of attorney and client had existed.</p>

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

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

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

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

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

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

<p>1. Trusts — Action Against Trustee for Accounting. — The general ■rule, which is applied in an action against a trustee for an accounting, is, that when the assets are shown to have been received by him, the burden rests upon him to make a satisfactory accounting of them, and if he does not do so, the doubts and obscurities in his accounts are to be taken adversely to him.</p> <p>2. Trusts — Action Against Trustee for Accounting. — A trustee must take the burden of all affirmative defenses to an action for an accounting against him, otherwise it would devolve upon the beneficiaries to prove the negatives, which it may be impossible for them to do, because of their want of knowledge of his acts, while he must know of his own acts and the evidence by which they can be sustained.</p> <p>3. Principal and Surety — Surety Upon Bond of Assignee. — The surety in the bond of an assignee for the benefit of creditors may, by notice and motion, have an order of court requiring the assignee to execute a new bond, indemnifying him against past liabilities, and to release him from future acts of the assignee, but the surety will remain liable to the beneficiaries for the acts of the assignee up to the time of the execution of the new bond.</p> <p>4. Trusts — Surety Upon Bond of Trustee. — The sureties in the bond of a trustee are responsible for all moneys received by reason of the trust, and for all sums, which, with proper diligence, the trustee could have collected,’ and for the proceeds of the trust property sold by the trustee, until the money has been paid to those entitled to receive it.</p> <p>5. Trusts — Surety Upon Bond of Trustee. — Where a surety in the bond of a trustee has, by the statutory method, required the trustee to execute a new bond, and procured an order of the court,' which releases him from liability for the acts of the trustee after the execution of the new bond, he will be liable for- the assets of the estate, which went into the hands of the trustee before the execution of the new bond, unless he can clearly show that the assets were intact in the hands of the assignee at the time of the execution of the new bond, and the burden of proof is upon the surety to prove this before he can escape liability, as the obligation of the surety is the same as the principal.</p>

<p>X. Commerce — Regulation.—In regard to those matters relating to commerce which are not of a nature to be affected by locality, but -which necessarily ought to be the same over the whole country, the silence of Congress upon such subject, over which it had jurisdiction, is equivalent to a declaration that in those respects commerce should be free and unregulated by any statutory enactments.</p> <p>2. Commerce — Regulation—Police Power. — It is not every state law which may incidentally affect interstate commerce and the persons engaged in it, that necessarily constitutes a regulation of commerce within the meaning of the federal constitution. Legislation which is a mere aid to interstate commerce may be enacted by a state, although at the same time it may incidentally affect that commerce, since this is a legitimate exercise, by the state, of its police power.</p> <p>3. Commerce — Telegraphs and Telephones — Messages. — Telegraph lines extending through different states, are instruments of commerce which are protected by the commerce clause of the federal constitution; and, messages passing over such lines from one state to the other, constitute a portion of commerce itself.</p> <p>4. Telegraphs and Telephones — Interstate Messages — Failure to Deliver — Penalties.—In the absence of legislation by Congress taking -possession of the field of commerce covered by interstate telegraph messages, the states can lawfully provide penalties and a recovery in damages for the negligent failure of a telegraph company to deliver an interstate message.</p> <p>5. Telegraphs and Telephones — Interstate Commerce By. — By the act of congress approved June 18, 1910 (36 St. Lar. 544, Fed. Sts. Ann. Suppl. 1912, p. 112), Congress took possession of the entire field of interstate commerce by telegraph, and all state laws upon the subject were thereby superseded.</p> <p>6. Telegraphs and Telephones — Interstate Business — Regulation.— Since the passage of the act of Congress of June 18, 1910 (36 St. Lar. 544, Fed. Sts. Ann. Suppl. 1912, p. 112), superseding state laws upon the subject of interstate commerce by telegraph, the .states are without authority to regulate telegraph business of an interstate character, in any manner.</p> <p>7. Telegraphs and Telephones — Interstate Messages — Classification. —Under the act of Congress of June 18, 1910 (36 St. Lar. 544, Fed. Sts. Ann. Suppl. 1912, p. 112), telegraph companies may classify interstate messages into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and may charge different rates for the different classes.</p> <p>8. Telegraphs and Telephones — Negligence—Limiting Liability for by Contract. — Since the passage of the act of Congress of June 18, 1910 (36 St. Lar. 544, Fed. Sts. Ann. Suppl. 1912, p. 112), a telegraph company may, by contract, limit its liability for negligence in failing to deliver an unrepeated interstate message.</p> <p>9. Telegraphs and Telephones — Interstate Message. — A telegraph, message sent from Lebanon, Ky., to Mayfield, Ky., but which was relayed through Nashville, Term., en route, was an interstate message.</p>

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

<p>1. Husband and Wife — Bills and Notes — When Wife Surety For Her Husband. — Where medical, services were furnished to a wife, at the instance and request of the husband, and charged upon the books of the doctor against the husband, who failed to pay same, and the wife at the request of the doctor gave her note for the account, with her daughter as surety. Held, that the wife was not responsible upon the note, las it was the debt of her husband.</p> <p>2. Husband and Wife — Estate of Wife — Debts of Husband. — The estate of a wife is not liable for debts of her husband unless such estate is set apart for that purpose by deed of mortgage Or other conveyance.</p> <p>3. Husband and Wife — Contracts of Wife. — Where a wife makes the contract, procures the services, and the debt is charged to her at her instance and request, she is liable for same, but her husband is primarily liable for the same debt if it be for necessaries.</p>

<p>1. Fraud — Deed—Misrepresentation as to Title — Rescission.—To avoid a deed on the ground of misrepresentation as to title, the misrepresentation must be one of fact and not of pure law or a mere erroneous' expression of opinion.</p> <p>2. Fraud — Deed—Misrepresentation as to Title — Rescission.—Plaintiff, who was the owner of the mineral rights in certain lands, conveyed the same to defendant, who, together with another, held title under Virginia land grants. The consideration was an agreement by the defendant to bear all expenses, make a sale of the land, and to pay to plaintiff 25 per cent, of the gross proceeds. In a suit to set aside the conveyance on the ground that it was induced by the fraudulent representation of the defendant that his title was superior to that of the plaintiff and plaintiff’s title was worthless: Held, that as all the facts were laid before plaintiff’s husband, who acted as her agent, such statement was not a misrepresentation of fact but a mere erroneous expression of opinion as to the validity of conflicting titles, or a misrepresentation of pure law that would not avoid the contract.</p> <p>3. Deeds — Consideration.—Where land is1 conveyed to another under an agreement whereby he is to bear all expenses, make a sale thereof and pay the grantor one-fourth of the gross proceeds of the sale, such agreement is a sufficient consideration for the conveyance, especially where the agreement has been substantially executed.</p> <p>4. Attorney and Client — Lien on Land Held by Client Absolutely But Under a Trust Agreement — Validity.—Where the grantee of land holds' the land in trust for the purpose of sale and a division of the proceeds between him and the grantor, but the deed under which he holds is absolute in form, a judgment lien obtained by an attorney for legal services performed for the grantee, without knowledge of the trust agreement and in the belief that the grantee’s title was absolute, is valid and enforcible, where the deeds from the grantor to the grantee and from the grantee to the purchaser have been held valid and after the payment of the lien the proceeds are sufficient to pay the portion going to the grantor.</p> <p>5. Attorney and Client — Services of Attorney as Real Estate Broker —Lien.—An attorney who acts in the capacity of a real estate broker in making a sale of his client’s land is not entitled to a lien thereon for his commission.</p> <p>6. Taxation — Land of Married Woman — Notice—Tax Sale — Validity. —Where the purchaser at a tax sale of the lands of a married woman is an individual and fails to give the notice required by section 4156 of the Kentucky Statutes the tax sale is invalid.</p>

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

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

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

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

<p>1. Homicide — Dying Declarations. — Where the deceased received a fatal blow upon the head and was rendered unconscious and remained so for three or four days when he was operated upon and a portion of the skull removed and infectious matter removed from the brain restoring him temporarily to consciousness, during which he made a statement that he did not believe the doctors and nurses would pull him through, or that he would get well, and he died within about twenty-four hours thereafter, statements which he made under such circumstances as to how the accident happened and identifying the defendant as the perpetrator of the crime are admissible as dying declarations.</p> <p>2. Criminal Law- — Dying Declarations. — It is error for the' court to state to the jury upon the admission of the dying declaration that what the witness has stated shall be taken by the jury and weighed by it as though it had been testified to by the deceased in person before the jury, as this relieves the jury of passing upon the credibility of the witness testifying to the dying declaration.</p>

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

<p>1. Landlord and Tenant — Injuries to Tenant — Liability of Landlord.— Tbe tenant takes tbe premises as be finds them, and tbe landlord is not liable for injuries growing out of tbe dangerous or defective condition of the premises, unless such condition is known to the landlord and is not known to, or discoverable by, the tenant on a reasonable inspection, and the landlord conceals or fails to disclose such condition to the tenant.</p> <p>2. Landlord and Tenant — Defective Premises — Injuries to Tenant— Liability of Landlord. — Plaintiff leased from defendants three upstairs rooms, which were reached by a stairway in the sole control of plaintiff. At the top of the stairway was a -platform leading to the middle room and the kitchen. The platform did not extend the full width of the kitchen door. After occupying the premises for eight days and using the stairway two or three times a day, plaintiff, in attempting for the first time to step from the kitchen to the platform, missed the platform and, falling to the floor below, was injured: Held, that as the defect in the platform was not latent but plainly observable, the element of deceit was lacking and there could be no recovery.</p>

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

<p>1. Counties — Fiscal Management and Taxation. — An indebtedness created in a previous year and remaining unpaid, must be counted by the fiscal court of a county in computing the indebtedness which the county may incur in a subsequent year under section 157 constitution, forbidding a- county to become indebted in any manner, in any year, beyond the income and revenue provided for the year, without the assent of two-thirds of the voters thereof, voting in an election to be held for that purpose.</p> <p>2. Counties — Fiscal Management and Taxation. — A fiscal court may not, without a vote of the people of the county, create in one year a debt to be thereafter paid in subsequent years, out of the income and revenue for such subsequent years, for the payment of which no provision can be made out of the income and revenue of that year.</p> <p>3. Counties — Fiscal Management. — The income and revenue of a year may include something beyond, or in addition to, the taxes collected for such year; but, if so, it must consist of resources owned by the county and in the hands of the county treasurer or fiscal court, which are not only reasonably solvent, but which, in ordinary events, may fairly be relied on as equivalent to cash.</p> <p>4. Counties — Fiscal Management — Indebtedness.—While a county, through its fiscal court, may in any year, make its contracts in anticipation of its revenue and income for such year instead of awaiting its collection to do so, the law as well as good business methods, require that the fiscal court shall not create debts in anticipation that the full amount of revenue will be collected. In creating debts the fiscal court should make allowance for a loss of .such a percentage of the revenue, from failure to collect, as would keep the expenditures for the year reasonably well within the amount of the revenue actually collected. If, however, in good faith a county does, in anticipation of its proper revenue, create debts in excess of what it collects, this surplus debt must be carried as a debt to the next year, and succeeding years until paid,' and must be taken account of as an indebtedness of that year, and succeeding years, until paid, in exactly the same manner as if the carried-over debt were created in the year to which it was carried. If a county has .a surplus left at the end of any year after paying all of its debts, it becomes in the next year an asset and may be counted as a part of the county’s revenue of the next year.</p> <p>5. Counties — Fiscal Management — Indebtedness—Issuance of Bonds. —A fiscal court is without authority to issue or sell bonds of the county to meet or carry its outstanding indebtedness, without the assent of two-thirds of the voters of the county, voting in an election held for that purpose. Section 1857, Kentucky Statutes, does not confer upon the fiscal court such authority; its only object was to permit counties to issue bonds to take care of debts created before the adoption of the present constitution. Section 1852 only confers authority upon the fiscal court to issue bonds, or refund a. bonded debt, voted by the people.</p> <p>6. Counties — Fiscal Management — Issuance of Bonds. — Although a< fiscal court may have issued and sold bonds of ’the county without legal authority, if the debt for which the bonds were issued was legally created, then the bondholder still has his debt against the county, and the bond is merely an evidence, as would be an interest-bearing warrant, of what the county owes him. He can collect the debt with intérest. The county, however, cannot carry. It as a bonded debt, but must do so as an annually created debt, and pay it out of the revenue of each year until it is paid in full. If the county fails to pay it the year of its creation, or the year following, it continues to remain a subsisting debt against the county and must be taken into account in estimating its indebtedness each year, until it has been fully paid.</p>

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

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

<p>Contracts — Unilateral Contract — Not Enforcible. — A contract that obligates one of the parties to do several things but does not bind the other to do anything, is a unilateral contract and not enforcible by either party.</p>

<p>1. Estoppel — By Deed. — Recitations in a deed showing that certain land which is recited to be in consideration of the deed, is within a particular boundary, and the acceptance of a deed for an undivided interest in the same recited land are sufficient. to constitute an estoppel as against the vendor to afterwards deny that the land is within the recited boundary as against one who acted upon the recited representations.</p> <p>2. Estoppel — Acquiescence in Sale' of Property. — If one stands by and witnesses without protest the sale of his property to a bona fide purchaser and acquiesces in the sale without informing the purchaser of the facts, he will be estopped from afterwards claiming the property as against the.purchaser or his vendee.</p> <p>3. Deeds — Delivery—Presumption.—Where a vendor executes a deed, andyeeites as a consideration therefor another deed which the vendee executed to him, after twenty years it will be prima facie presumed that each deed was delivered and accepted, although actual possession of the deeds by the respective vendees may not be shown.</p>

<p>Fraudulent. Conveyances.' — Evidence examined and beld not sufficient to show that the conveyances attacked were fraudulent.</p>

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

<p>1. Appeal and Error — Former Appeal — Error in Admission of Evidence. — Tbis court having, upon a former appeal in this case, ,, decided that a certain road, ratber than tbe line described by tbe calls in tbe deeds to tbe parties, was the dividing line between their lands, upon the new trial in tbe lower court, tbe only question for decision was, the proper location of the-road, and it was error to admit evidence Concerning tbe location of tbe line described in tbe deeds.</p> <p>2. Trial — Peremptory Instruction. — In such case, in tbe absence of a showing that tbe road is not now located substantially as when tbe deeds were made, tbe defendant’s motion for a peremptory, instruction should have been sustained.</p> <p>3. Trial — Erroneous Instructions. — An instruction which allowed tbe jury to find for appellee according to the line described by tbe calls in the deeds, although they might believe tbe road had never been located there, was erroneous, and appellee was entitled to recover only tbe land extending to tbe road as it was located-at tbe time tbe deeds were made. .</p>

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

<p>Negligence — Care as to Persons on Highway — Adjoining Land Owner — Liability.—The owner of a gas station, consisting of a small building six feet by eight feet, built over gas meters, located on the other side of a high board fence fifty feet from the public highway and on the owner’s property, is not liable for injuries to plaintiff, whose mule while passing along the highway, was frightened by the mere swinging of the door of the building.</p>

<p>1. ¡Frauds, Statute of — Agreement to Deal in Real Estate. — An agreement to become partners in dealing in real estate leaseholds, is neither a contract to buy nor a contract to sell real estate as between the parties to it, and is not within the Statute of Frauds.</p> <p>2. Partnership — Leasehold of Real Estate. — A leasehold of real estate is personalty; and, when owned by partners, they own the leasehold as personal property and not as joint tenants of realty.</p> <p>3. Partnership — Each Partner Agent of the Other. — Each partner is the agent of the other in all matters pertaining to the partnership; and, it is an invariable consequence of the fundamental rule of partnership law that each partner has the power to contract for the firm in partnership affairs.</p> <p>4. Partnership — Partnership in Mining — Parol Agreement. — There is nothing in the nature of mining which forbids the creation of a partnership by an ordinary partnership contract which would draw to the relation of the parties the incidents of a trading partnership, and destroy the distinctions which are based upon the non-existence of the delectus personae in strict mining partnerships. The agreement may be by parol, although it necessarily required the acquisition of an interest in land, and may be implied from the acts of those sought to be charged as partners.</p> <p>6. Partnership — Partnership in Mining Lease. — Where a partnership owns mining leaseholds, which may be surrendered or forfeited for failure to operate the mine, and one partner leaves the State under circumstances that show an intention to leave the business and its control to the remaining partner, the remaining partner may surrender the leasehold and bind the partnership thereby.</p> <p>6. Frauds, Statute of — Rescission of Contract by Parol Agreement. — ■ A mining leasehold in writing, which is required by the Statute of Frauds to be in writing, may be rescinded by a parol agreement.</p>

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

<p>Mines and Minerals — Judicial Sale of Rights. — Where vendees in title bonds for mineral rights in land fail to take up and pay for same, according to the original contracts and after the expiration of several years, the mineral rights are sold by the master commissioner, the purchaser at the sale is the exclusive owner of the mineral, and the original vendees have no interest therein.</p>

<p>1. Damages — Injury to Crops — Action Against 'Railroad For Failure to Construct Ditches. — Where a grantee in a deed obligated itself to erect fences and construct consecutive ditches along its right of way through grantor’s land, and it failed to perform such covenants and the crops upon grantor’s lands are damaged thereby, the grantor may maintain an action for damages to same.</p> <p>2. Damages — Injury to Crops — Parties.—Tenants upon grantor’s land were properly joined as plaintiffs with the grantor, since they had a one-half interest in the damaged crops.</p> <p>3. Damages — Injury to Crops. — Where plaintiffs brought an action in January, 1914, for injury to crops of the year of 1913; recovered judgment for $750.00; filed another action in September, 1914, for damage to 1914 crops, and filed still another action for damage to 1915 crops; Held, that plaintiff is not barred from recovery upon the last two actions by reason of the trial and judgment of the first action, as the suits were not for permanent injury to the land, hut for damage to the growing crops on same, and the defendant had failed to comply with its covenant in the deed from plaintiff to defendant.</p>

<p>Corporations — Sale of Shares of Stock — Action to Recover Purchase Price. — A recovery of the purchase price of shares of stock in a corporation will not be granted upon the ground that the shares were worthless and were bought, by the plaintiff through the fraudulent misrepresentations of the defendants, where the proof shows that the shares had a market value practically equivalent to the price at which they were sold to the plaintiff.</p>

<p>1. Infants — Action to Sell Land of — Appeal.—In an action to sell land, guardians ad litem were appointed to represent the infant defendants, and a judgment entered adjudging the advancements chargeable to each of the parties under the will; that the land could not be divided without materially impairing its value; and-directing a sale thereof and division of the prpceeds according to.the interests of the parties therein as fixed -by the judgment. The land was sold, and the master’s report of sale confirmed. The grandmother of the infants died pending the action, and the purchaser filed an assignment by her to him of her -interest in the sale bonds, and asked credit on the bonds for that amount, to which the guardians ad litem filed exceptions, controverting the validity of the assignment and claiming the grandmother’s interest in the bonds for the infants, as her heirs, and, issue being joined thereon, upon a trial by jury the question was decided adversely to the infants. Held, that the order of sale and the order confirming the report of sale being final and appealable and no appeal having been prosecuted therefrom, their validity cannot be passed upon on this appeal.</p> <p>2. Infants — Guardian ad Litem. — The powers of the guardians ad litem being strictly limited to the matters involved in the litigation in which they were appointed, viz., the action to sell the land of the infants’ testator, their appointment in that action gave them no right or power to represent or bind the infants' in the distribution of their grandmother’s estate.</p> <p>3. Infants — Guardian ad Litem — Appeal.—A guardian ad litem may appeal to the Court of Appeals in the name and for an infant defendant from a judgment rendered against the infant, at any time within two years from the time the right to appeal first accrued, but not thereafter.</p> <p>4. Infants — Appeal by to Court of Appeals. — An infant may appeal to the Court of Appeals from a judgment rendered against him in an action in which he was a defendant, at any time between the rendition of the judgment and one year after attaining his majority.</p> <p>'6. Infants — Appeal by to Court of Appeals — Practice.—Before appealing to this court from a void judgment rendered against him an infant must move the lower court to set it aside.</p>

<p>1. Mandamus — Remedy—Discretion.—Mandamus is a proper remedy to compel an officer to- exer'cise discretion lodged with him, or to render judgment in a proceeding, hut it is not competent to control such discretion, or to’ direct any particular judgment through the process of such writ.</p> <p>2. Mandamus — Nature and Grounds.- — In cases where the writ is alowable the petition or complaint upon which it is asked must show the existence, of the facts at the time the application is made authorizing the officer to take the action sought to be enforced by the applicant for the mandamus.</p>

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

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

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

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

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

<p>1. Searches and Seizures — Constitutional Law — Search Warrant— Validity. — Under section 10 of the constitution, providing that “no warrant shall issue to search any place, or seize any person or thing,” etc., a warrant that neither describes the premises to be searched nor gives the name of the owner of the premises is invalid and confers no authority on the searching officers.</p> <p>2. Trespass — Joint Trespassers — Liability of One Who Aids and Advises Trespass. — Qne who aids, abets, assists, or advises a trespasser in committing a trespass is equally liable with the one who does the act complained of.</p> <p>3. Trespass — Joint Trespassers — Aiding or Advising — Evidence—■ Sufficiency. — In an action of trespass, evidence on the question whether one of the defendants aided or advised the trespass considered, and held sufficient to take the case to the jury.</p> <p>4. Trespass — Punitive Damages — Instruction.—Where in trespass for searching plaintiff’s premises the entry is made under a void search .warrant and the officers act in wanton disregard of plaintiff’s rights, punitive damages are recoverable.</p> <p>5. Appeal and Error — Verdict—Excessiveness.—In an action of trespass, committed pursuant to a void search warrant and in wanton disregard of plaintiff’s rights, a verdict of $500.00 against one who maliciously or wantonly aided or assisted in the trespass is not excessive.</p> <p>6. Appeal and Error — Evidence—Admission of Improper Evidence-Admonition of the Court- Not to Consider It — Effect.—Ordinarily the admission of improper evidence is not prejudicial where the court subsequently instructs the jury not to consider it.</p>

<p>District and Prosecuting Attorneys — County Attorneys — May Prosecute Appeal Without Bond. — As it is made the duty of the county attorney by section 126 of the Kentucky Statutes to oppose the allowance of all claims not legally presented or unjust, he may prosecute an appeal from an order of the fiscal court allowing a claim to the circuit court in the name of the county without executing an appeal bond.</p>

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

<p>1. Bills and Notes — Joint Makers — Fraud—Waiver.—Where one of the two joint makers of a promissory note, as a ground of defense, relies on the fraud practiced on the other maker, he is likewise bound by the other maker’s conduct in waiving the fraud.</p> <p>2. Bills and Notes — Fraud—Actions—Waiver.—Where a party, with knowledge of the fact that a contract has been obtained by fraud, thereafter enjoys the fruits of the contract and repeatedly affirms the contract by other unequivocal acts, he thereby waives the fraud and cannot rely thereon as a defense.</p> <p>3. Bills and Notes — Payment—Agency of Endorser — Evidence.—In an action on a promissory note, evidence examined and held insufficient to show that an endorser was the holder’s agent for the purpose of receiving payment on the note.</p>

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

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

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

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

<p>1. Judges — Special Judges — Termination of Authority. — Under the act of 1910, relating to special judges, when a circuit judge is designated and notified by the Governor to try a case or cases, which are pending in a court not in his district, as a special judge, his authority to preside as the judge of the court in such case or 'cases terminates with the end of the regular term of the court, in which the case or cases are pending, during which he is appointed or succeeding his appointment, unless he calls a special term for the trial of such ease or cases, which he may do, and in such event, he is authorized .to- preside at the special term.</p> <p>2. Judges — Special Judges — Power to Act in Vacation. — Where a special judge tries a case, on account of the absence of the regular judge or the disqualification of the regular judge to preside in the case, he may thereafter in vacation perform such acts for the completion of the records- or enforcement of his judgment in the case as a regular judge may do in vacation, or if he, at the term at which the trial is had, grants time for the filing of a bill of exceptions, he may call a special term for that purpose, or may at the next term of the court file and approve the bill of execptions, if the time granted by him is to a day in the next term. His power to do these things will continue until the return of the regular judge, if such judge has not presided because of his absence, and if the special judge has presided because the regular judge was disqualified to preside, the powers of the special judge to perform the acts mentioned will continue until the next term of the court or until a day in the next term for the filing and approval of a bill of exceptions, if time has been granted until a day in such term for such purpose.</p> <p>3. Judges — Special Judges — Revocation of Appointment. — When a special judge has been designated and notified to try a case or cases, and has appeared in the designated court and qualified as such special judge, as by law provided, the Governor can not revoke his appointment nor supersede him by the designation of another special judge to try the same case or cases, in whole or in part, during the term for which he was designated and notified.</p>

<p>1. Counties — County Printing — Sheriff’s Statement. — Section 1884, Kentucky Statutes, requiring the annual statement of the sheriff to be “published for ht least two weeks in the paper published in the county, having the largest circulation therein,” is mandatory, and the fiscal court must award the printing to the newspaper published in the county, having the largest circulation therein.</p> <p>2. Statutes — Enforcement.-—When a statute is plain and unambiguous, there is nothing for the court to do but to enforce it.</p>

<p>1. Usury — Broker’s Commission. — A commission paid to a third party for his services in procuring a loan is not chargeable as usury against the lender, where the latter receives none of the commission and does not know of its being paid, and the third party is in no sense his agent.</p> <p>2. Usury — Broker’s Commissiob. — Plaintiff applied to W. & S. to procure him a loan of $25,000.00, agreeing to pay them a commission of $2,500.00. The latter agreed to pay the defendants $2,300.00 of their commission, if the defendants would procure the loan. By taking the mortgage and notes to themselves and agreeing to guarantee the payment of the notes, defendants procured $20,000.00 of the loan from other parties. The remainder of the money they furnished themselves: Held, that as defendants could not occupy the dual relation of lenders and agents of the plaintiff, or sellers of their credit, the courts will not draw a line of demarcation between their acts in these different capacities and allow them commission pro rata on the amount which they procured to be. loaned by others, and hold as usurious the pro rata of the commission on the amount furnished by them, but will regard the whole amount of the commission as usurious.</p>

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

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

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

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

<p>Appeal and Error — Finding of Chancellor.' — Evidence reviewed and chancellor’s finding, that contract of accord and satisfaction relied upon toy appellant in avoidance of bis liability as indorser upon certain negotiable instruments, held to toe palpably against the evidence,</p>

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

<p>Appeal and Error — Finding of Chancellor — Evidence.—In an action in equity the chancellor’s judgment is entitled to some weight, but the Court of Appeals will weigh and judge of the sufficiency of the evidence for itself, and where it is found to preponderate for one side or the other in such a way as to convince it that the chancellor erred, his judgment will be reversed. The evidence examined in this case and held the title bond upon which the appellant relies was executed as she claimed, .and that the appellee had notice of it when he purchased the land attempted to be conveyed by the bond, and that the trial court erred in holding to the contrary.</p>

<p>1. Clerks of Courts — Compensation for Services — Fiscal Courts.— The fiscal court being a court of limited jurisdiction, and having no power to appropriate county funds, except as authorized by law to do so, its refusal to make an allowance to the clerk of the circuit court for services, for which the law of the state fixed no compensation, was not error.</p> <p>2. Clerks of Courts — Compensation and Fees of Clerks. — The clerk of the circuit court is not entitled to compensation for removing, rearranging or relabeling the records of his office, in the absence of a statute providing compensation for such services.</p> <p>3. Officers — Compensation for Services — Statute.—As section 1749, subsection 1, Kentucky Statutes, declares that “no officer shall demand or receive for his services any other or greater fee than is allowed by law, or any fee for services rendered when the law has not fixed on a compensation therefor;” , . . . when the state requires services to be performed by its officers, for which no remuneration is allowed by law, they must be regarded as ex officio services, for which no charge can be made.</p> <p>4. Officers — Claim of Against State or County. — State and county governments never become debtors, by implication, to any of their officers or agents. In order to show that the state or county is responsible for a claim, the claimant must show a legal obligation on the part of the state or county to pay it.</p>

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

<p>1. Contracts — Rescission—Reformation of Instruments. — Plaintiff, who had leased certain premises to defendant upon which defendant was to erect buildings that were to become plaintiff’s property at the expiration of the lease, brought an action to rescind the contract of lease upon the ground that, through fraud upon the part of defendant, it had been executed for a longer term than agreed to by the parties, and that the buildings were not of the type of construction required under the contract. Held, that proof of the fraud alleged would entitle plaintiff to a reformation, hut, haying stood by and knowingly allowed defendant to expend large sums of money in erecting the buildings, and not having objected to the manner in which defendant was carrying out the contract, plaintiff could not, without offering to restore defendant, as far as possible, to the position occupied by him before entering into the contract, secure a rescission.</p> <p>2. Reformation of Instruments — Fraud.—Before a written obligation will be reformed or rescinded upon the ground of fraud, the fraud must be made to appear by the clearest and most convincing proof.</p> <p>3. Reformation of Instruments — Evidence.—Evidence reviewed and held not to authorize a reformation-of a written contract.</p> <p>4. Reformation of Instruments — Cloud Upon Title. — The contract constituting a cloud upon plaintiff’s title to the extent that its duration exceeded the term agreed upon by the parties, if any, a suit might be brought at any time to remove the cloud by reforming the contract so as to conform to the actual agreement.</p> <p>5. Contracts — Want of Mutuality. — Although a contract may be unenforceable for want of mutuality, where one of the parties has executed his part of the contract it is too late for the other to object on that ground.</p>

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

<p>1. Husband and Wife — Action for Alienation of Affections of Wife —Evidence.—In an action by tlie husband for the alienation of the affections of his wife, a threatening letter written to him personally by the defendant w'as not admissible in evidence,</p> <p>2. Husband and Wife — Alienation of Affections — Evidence as to Interviews with Wife. — Where the wife had brought a suit for divorce against the husband, it was not permissible for him to prove by other persons, in a suit by him for alienating her affections, that they had talked with his wife and advised her to dismiss the divorce suit.</p> <p>3. Husband and Wife — Alienation of Affections — Evidence as to Statements of Wife. — In a suit by the husband for alienation of the affections of his wife, it is competent for the defendant to testify concerning statements made to him hy the wife which showed her state of mind and feeling tow’ard her husband.</p> <p>4. Husband and Wife — Alienation of Affections — Effect to be Given to Verdict of Jury. — In cases like this the verdict of a jury is entitled to great weight and should not be set aside unless it plainly appears that prejudicial error was committed during the trial.</p>

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

<p>Statutes — Constitutional Law — Private Passways. — Section 4356s, Kentucky Statutes, Carroll’s edition, 1915, is violative oJc section 51 of the constitution so far as it attempts to repeal article II., chapter 110, Kentucky Statutes, Carroll’s edition, 1909, relating to private passways, and the statutes authorizing the opening of private passways for the purposes stated in the statute and in the manner therein pointed out are still in force and effect.</p>

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

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

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

<p>1. Divorce — Judgment—Duress.—'A decree granting a divorce because of duress in obtaining the marriage must have the same effect as a judgment annulling the marriage, for the same.reason.</p> <p>2. Marriage — Invalid Marriage — Ratification.—A marriage obtained - by force, duress or fraud may be affirmed and ratified by the injured party by the exercise of the marital rights after the constraint has been removed, or the knowledge of the fraud.</p> <p>3. Marriage — Void Marriage. — A void marriage is one incapable of ratification, and may be treated as a nullity by the guilty and innocent, alike, but to procure a divorce where the marriage was obtained by duress or fraud, or to have such marriage annulled, is a privilege personal to the injured party, and can not be effected by the heirs of such party, nor by any third parties, nor by the party in fault.</p> <p>4. Divorce — Alimony.—Where a husband obtains a divorce, without the fault of the wife, she is entitled to alimony, and this includes the state of case where the judgment for divorce in favor of the husband was erroneously granted, and where the divorce should have been granted to the wife.</p> <p>6. Divorce — Threats of Bodily Harm. — Where one seeks a divorce upon the ground that he was induced to consent to the marriage because of threats of bodily harm, although such threats and demonstrations, from which bodily harm might be inferred, were made, they will not be sufficient to entitle him to a divorce, unless it appears that he was influenced by the threats and demonstrations, and that his will was overcome thereby, and that ho consented to the marriage solely from the fear inspired by such threats and demonstrations, and not from other motives.</p> <p>6. Seduction — Marriage—Presumption.—Where there has been a victim of seduction, the courts of equity should be very slow in running to the relief of the seducer, .although the family and friends of the victim have brought pressure to bear upon him to repair the wrong done by marrying her. In such state of case, it will be presumed that he entered into the marriage from a sense of moral duty or from remorse, rather than that he was coerced by fear of bodily harm. This presumption should be weighed against the evidence of duress.</p> <p>7. Divorce — Duress in Obtaining Marriage. — Where there has been antenuptial incontinence between the parties to the marriage, a divorce will not be granted because of duress in obtaining it, unless the facts are such as to clearly and convincingly demonstrate, that the complainant entered into the marriage bonds from duress per minas, and not from other motives.</p> <p>8. Divorce — Duty of County Attorney to Resist, — It is the duty of the county attorney to resist the granting of all divorces, and he can not contract for or be paid any fee in a divorce case, other than is prescribed by the statute.</p>

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

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

<p>1. Homestead — Fraudulent Dispostion of — A homestead will not be lost by a fraudulent disposition thereof, since fraud to be actionable must result in injury.</p> <p>2. Homestead — Sale of — Reinvestment of Proceeds. — A debtor may ' sell liis homestead and reinvest the proceeds in another home-stead, taking the title either to himself, to his wife, or to any person he pleases.</p> <p>3. Homestead — Sale of — Reinvestment' of Proceeds. — A debtor may sell his homestead and dispose of the proceeds in any way he may see fit; and, if he reinvests the proceeds in another home within a reasonable time, the right of homestead is transferred to the property thus purchased.</p> <p>4. Homestead — Sale and Reinvestment — Exemption.—Where a debtor mortgaged his homestead and reinvested the money raised by the mortgage in a new homestead, the new homestead is exempt, since it is just as much within the spirit and reason of the statute, and just as fully protected by the statute, as if the old homestead had been sold outright and the proceeds reinvested in the new homestead.</p>

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

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

<p>1. Counties — Roads—Bond Issue — Fiscal Courts — Selection of Roads Before Election — Power of Fiscal Court After Election. — Where a fiscal court, prior to an election on a road bond issue, names the roads to be constructed with the proceeds of such issue and the issue is carried on the faith of such order, the fiscal court is without authority thereafter to repeal or amend the order and thereby defeat the purpose for which the bonds were voted.</p> <p>2. Counties — Roads—Fiscal Courts — Order—Interpretation.—A resolution of the fiscal court adopted prior to a bond issue election, considered, and held not to have provided for the order in which certain roads named therein should be constructed.</p> <p>3. Mandamus — Roads—Fiscal Courts. — 'Where the members of a . fiscal court are under a clear legal duty to select one of four roads as the first road to be constructed with the proceeds of a bond issue, mandamus will lie to compel them to meet and select one of said roads, but not to control their discretion in making such selection.</p>

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

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

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

<p>1. Animals — Running at Large — Injury to Persons — Statutes—Sections 4646 to 4651 inclusive of the Kentucky Statutes, with reference to stock running at large, provide a remedy for injury to persons, as well as to property, against the owner of stock running at large in violation thereof, without regard to the vicious or mischievous tendencies of the stock.</p> <p>2. Animals — Running at Large. — The words “to permit any stock to run at large,” as used in these sections, mean to knowingly allow cattle to roam at large at will, or wander without restraint or control; or to fail to exercise, in order to prevent same, that degree of care that is usually exercised by ordinarily prudent persons under the same circumstances.</p> <p>3. Animals — Running at Large. — Evidence.—-Evidence that - an employee had forgotten to close a door through which the defendants’ horses escaped when let out into the stable to drink, held sufficient to take the case to the jury upon the question of whether or not the horses were running at large as a result of defendants’ negligence.</p>

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

<p>1. Municipal Corporations — Streets—Sidewalks—Unsafe Condition — - Question for Jury. — Where, at the intersection of two streets, the curbing, which is perpendicular to, and a part of, the sidewalk, projects two inches above the sidewalk and just beyond the curbing there is a deep gutter in the street, it is a question for the jury whether the city exercised ordinary care to maintain the sidewalk and curbing in a reasonably safe condition.</p> <p>2. Municipal Corporations — Streets—Sidewalks—Personal Injury— Instructions. — An instruction telling the jury that it was the duty of a city to use ordinary care to keep its highways, including the curbing, in a reasonably safe condition for use by pedestrians, and that if they believed from the evidence that at the time mentioned in the proof the sidewalk and curbing were in a dangerous condition by reason of the elevation of the curbing above the line of the sidewalk, and that such condition, if it existed, was known to the defendant or any of its agents, or could have been known to them by the exercise of ordinary care in time to have remedied the condition before the accident, they should find for the plaintiff, etc., is not subject to the complaint that the jury were given full rein to pass on the sufficiency, not only of the curbing, but of the sidewalk and highways, when the only negligence relied on was the unsafe condition of the curbing, since a recovery was authorized only in the event that the jury believed that the sidewalk and curbing were in a dangerous condition by reason of the elevation of the curbing above the line of the sidewalk.</p>

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

<p>1. Infants — Juvenile Courts — Power of Legislature to Establish.— The legislature of the state has power to establish juvenile courts for counties as well as cities and to authorize the county and the city to levy a tax for the purpose of maintaining the court.</p> <p>2. Infants — Juvenile Courts — Constitutional Law — Power of Legislature to Invest County With Authority to Tax City. — While the legislature may authorize counties to lay a tax on all the property' in thé county for the support of the juvenile court, it has no authority to confer on the county power to lay a separate or distinct tax on the property of cities within the county for the pur- . pose of' paying the expenses of the court, or to require a city to pay one-half of the expenses of the court.</p> <p>3. Infants — Juvenile Courts — .Payment of Expenses of — Power of Counties. — So much of section 331e of the Kentucky Statutes as authorizes counties to lay a special tax upon cities of the first and second class for the-purpose of defraying the expenses of the court is unconstitutional.</p> <p>4. Infants — Juvenile Courts — Expenses of — County Cannot Compel City to Pay One-half. — Under section 331a of the statutes the county may, out of its general fund collected from taxes throughout the county, pay the expenses of the juvenile court, but after it has so paid the expenses; it cannot maintain an action against a city of the second class in the county to pay any part of such expenses.</p> <p>5. Taxation — Constitutional Law — Power of Legislature to Tax Local Communities. — Under section 181a of the constitution the legislature has no power to levy a tax on local communities for local purposes, but may authorize such communities to tax themselves.</p> <p>6. Constitutional Law — Power of Legislature to Delegate Its Taxing Authority. — The legislature cannot delegate its taxing authority to one political subdivision of the state, thereby investing it with power to levy a tax upon another political subdivision.</p> <p>7. Constitutional Law — Taxation and Representation Must Go Together. — It is a fundamental and ancient principle in our governmental policy that taxation and representation must goi (together as nearly as practicable, and that each political subdivision or taxing district shall have the right to levy its own taxes, disburse its own public funds and select and pay.its own officers.</p> <p>8. Constitutional Law — Local Self-Government. — The principle of local self-government is firmly fixed in our institutions, and under it there is reposed in the people composing the local community the right to select their own officers, manage their own domestic affairs and raise their own taxes.</p> <p>9. Taxation — Constitutional Law — Uniform Taxation. — Under section 171 of the constitution taxes must be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax.</p> <p>10. Taxation — Constitutional Law — Uniform Taxation — Double Taxation. — Taxation that is not uniform is necessarily unequal and amounts to double taxation, whether the lack of uniformity or the appearance of duplication is exhibited in the exemption of some property from the tax or in- taxing twice for the same purpose a part of the property dhbject to the tax.</p> <p>11. Taxation — Constitutional Law — Double Taxation Defined,.'— Double taxation means taxing twice for the same purpose in the same year some of the property in the territory, in which the tax is laid without taxing all of it. If all the property in the territory upon which the tax is imposed is taxed twice for the same purpose and in the same year without discrimination or exemption, this is not double taxation.</p>

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

<p>Appeal from Carroll Circuit Cour</p>

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

<p>1. Corporations — License Tax on Authorized Capital Stock— Validity of. — Section 4189a of the Kentucky Statutes, providing that all corporations owning property in and doing business in this state, except those exempted by the statute, shall pay an annual license tax on the authorized capital stock of thirty cents on each one thousand dollars, is not unconstitutional, although the corporation has not issued all of its authorized stock.</p> <p>2. Corporations — License Tax on Authorized Capital Stock— Validity ot. — Under this statute where all the property owned by a foreign corporation was located in this state and all of its -business transacted in this state, the state ha'd the right to exact the license fee on the full authorized capital, although only a part of the capital stock had been issued.</p> <p>3. Corporations — License Tax on Authorized Capital Stock — • Validity of. — The state has the right to impose a reasonable license tax upon the authorized capital stock of a corporation, foreign or domestic, for the privilege of owning property in or doing business in this state, and a license tax of thirty cents on the one thousand dollars is neither arbitrary nor unreasonable.</p>

<p>1. Appeal and Error — Instructions—Contributory Negligence. — It is reversible error to refuse to give an instruction on contributory negligence in concrete form, when the defense is presented by positive evidence of specific acts which constitute contributory negligence.</p> <p>2. Trial — Instructions.—When an instruction is offered, though not technically correct, which is authorized by the evidence, it is the duty of the court to prepare and give a proper instruction upon the question.</p> <p>3. Trial — Witnesses.—Where the plaintiff, after making out his case on direct examination, refused, on cross-examination, to answer pertinent questions, a motion by defendant to exclude the whole of his testimony should b.e sustained.</p> <p>4. Appeal and Error — Evidence.—Evidence examined and held not to support verdicts for the plaintiffs.</p>

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

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

<p>1. Appeal and Error — Discretion of Trial Court — Granting New Trial. • —While a circuit court is vested with a broad discretion in granting a new trial, and its action will not be reversed except in case of an abuse of such discretion, the granting of a new trial upon an insufficient ground is error, where none of the other grounds relied on are sufficient to authorize a new trial.</p> <p>2. Street Railroads — Tracks in Public Highway — Duty to Traveler.— Where, at a point about two squares from the limits of a city, the tracks of a street railroad company are laid in and along the highway and are used by the traveling public as a walkway, it is the duty of the company in approaching such point to keep a lookout, to have its cars under reasonable control, to give timely warning of their approach, and to use ordinary care to avoid injuring persons on or so near to the tracks as to be in danger, and this duty does not depend upon the frequency of such use of the company’s tracks by the traveling public, but grows out of the fact that the traveler has the right to use the tracks and is not a trespasser.</p> <p>3. Trial — New Trial — Ground—Sufficiency.—Since tine duty of a street railroad under the above circumstances does not depend upon the. frequency of the use of its tracks by the traveling public, but grows out of the fact that the traveler is not a trespasser, a statement of the trial court, made in the presence of the jury after three witnesses had testified on the question of the customary use by the public of defendants’ tracks as a walkway, to the effect that they could assume from the tetimony that the tracks were used as a pathway by the public and that it was not necessary to introduce any more testimony on that point, was not prejudicial to the defendants and, therefore, furnished no ground for a new trial.</p>

<p>1. Criminal Law — Plea of Insanity as Defense — Inquest.—Where, on the trial of one charged with a felony, insanity at the time of the commission of the crime was relied on as a defense, but by verdict of the jury and judgment of the trial court he was found and adjudged guilty, and on appeal the judgment of conviction affirmed by the Court of Appeals, such judgment is conclusive of his sanity at the time of the commission of the" crime; and in such state of case the trial court, after the filing therein of the mandate of the Court of Appeals, was without statutory authority to order, on the defendant’s. motion, a lunacy inquest to determine his condition of mind as of the date of such motion.</p> <p>2. Criminal Law — Insane Persons — Inquest After Judgment. — There is, in this jurisdiction, no statutory authority for the granting of such an inquest after the pronouncement of judgment and sentence upon the defendant, following his conviction by verdict of the jury, except in cases of capital punishment or pregnancy claimed to exist at the time fixed by the judgment for its execution; but as it ought to be the policy of the state to suspend the execution of the judgments of its criminal courts against persons who, after conviction of crime, may become insane, during the existence of such insanity, notwithstanding the absence of statutory authority, upon the broad humanitarian principle that one who is incapacitated by insanity from understanding the purpose-of the law in subjecting him to punishment ought to be exempted therefrom during the continuance of the insanity, a circuit court to which application is made for such an inquest may, by virtue of the inherent power possessed by it, grant the relief, if by proper showing of fact, convinced of the necessity therefor. But in such case the granting or refusal of such inquest is discretionary with the court; and if the defendant’s application or motion therefor is unaccompanied by affidavit or other evidence in his behalf strongly tending to show his insanity at the time, the refusal of the court to grant the inquest will not be treated as a final order or reviewed by the Court of Appeals.</p> <p>3. Criminal Law — Insane Persons — Arrest of Judgment for Crime. — • T-o permit one convicted of crime to arrest the execution of a judgment imposed on him by'the court by demanding, as a matter of legal right, an inquiry into his mental condition, would be tantamount to ' granting him the privilege of thwarting the administration of criminal justice for an indefinite time. All he would have to do' would be to continue to move for an inquest.</p> <p>■>. Criminal Law — Insanity of Convict — Inquest.—If, upon or after his incarceration in the penitentiary, a convict’s mental condition should make a lunacy inquest necessary, it might upon humane grounds, at the instance of the warden of the penitentiary, be applied for by the Commonwealth or county attorney, or by the appellant himself, through the instrumentality of a. writ of habeas corpus; in either of which events, the previous order of a court refusing such an inquest would not bar the proceeding.</p>

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

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

<p>1. Appeal and. Error — Record—Copying Rejected Pleading. — An order merely rejecting an amending pleading does not, either at law or in equity, make it part of the record; and,' although the clerk copies the rejected pleading into the transcript, hut without any order identifying it as the paper offered, it cannot he considered on appeal.</p> <p>2. Appeal and Error — Exceptions to Deposition. — Where exceptions are taken to a deposition as a whole, and also goes further and specifies the reason for the exception, it is sufficient to raise the question of the competency of the testimony specifically objected to.</p> <p>■3. Witnesses — Statement of Deceased Person. — a party to an action cannot testify for himself concerning any yerbal statements of or ■ transactions with one who is dead, or is insane at the time the testimony is offered, except in the instances mentioned in subsection 2 of section 606 of the Civil Code of Practice.</p> <p>4. Adverse Possession — Pleadings.—Where the plaintiffs alleged that they had held the land in controversy adversely for more than fifteen years, and the defendant traversed that allegation, and alleged that he had held the same land adversely for more than fifteen years, the issue was made between them as to who had the possession, and no further pleading upon that question was necessary.</p> <p>5. Appeal and Error — Finding of Chancellor. — Where the proof showed that the grantor in a deed was “flighty” and had spells of aberration, but that he always attended to his own affairs and made his own trades, and that his flighty spells were less frequent than his lucid periods, the finding of the chancellor that he had ■ mental capacity to make the deed in question will not be disturbed.</p> <p>6. Adverse Possession — Executory Contract of Purchaser — Possession. — It is a general rule that when one enters upon and holds possession of land .under an executory contract of purchase, or bond for title, the entry and possession are in subordination to the title of the vendor until payment or performance of all the conditions by the vendee, or until the vendee has distinctly and unequivocally repudiated the title of his vendor, which repudiation is brought expressly or by legal' implication to the vendor’s knowledge.</p> <p>7. Adverse Possession — Extent of Possession. — Where the vendee has paid for the land, and owes nothing to his vendor, his possession is hostile to any claim of superior title or right by the latter; and, although a deed is not executed, the. vendee can use his possession, after the statutory period, to defeat the claim or his vendor or anyone else to right of possession upon the ground that the paper title was vested in them.</p> <p>8. Appeal and Error — Finding of Chancellor. — Where the testimony as to the character of the possession of the-respective parties to an action is conflicting and the mind is left in doubt, the finding of the chancellor will not be disturbed.</p>

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

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

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

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

<p>Response to petition for rehearing, overruling it and extending the opinion.</p>

<p>Petition for rehearing, modification and extension of opinion.</p>