Volume 175 — Kentucky Reports

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

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

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

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

<p>1. Executors and Administrators — Services Rendered to Decedent.— Contracts for Nursing and Attention. — A child can not recover for services in nursing and waiting on his parent in the absence of an express contract for compensation, unless' the parent is mentally incapable of entering into such a contract or other extraordinary conditions exist.</p> <p>2. Executors and Administrators — Contracts—Services and Attention by Member of Family Does Not Create Obligation to Pay For.— The mere fact that one member of a family renders care and attention to another member of the family does not necessarily create an obligation ■ upon the beneficiary to pay for such care and attention.</p> <p>3. Executors and Administrators — Services Rendered Decedent— Pleading — Necessary Averments in Petition to Recover for Nurs- ■ ing and Attention. — In a suit to recover compensation for nursing and attention, there must either be an averment of a promise to pay or a statement of facts from which a promise may be implied. Where there is no express promise, the facts upon which the law will raise a promise must be specifically set forth and show such unusual conditions as would answer the purpose of an express promise.</p>

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

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

<p>1. Exemptions — Judicial Sales — Appraisement.—The action of appraisers selected to appraise the land of a debtor is final and conclusive, unless impeached for fraud, or mistake other than a mere mistake in the Judgment of the appraisers as to the valuation.</p> <p>2. Exemptions — Appraisement.—The presumption will be indulged that the appraisers properly performed their duty.</p>

<p>1. Intoxicating Liquors — Indictment and Information. — An indictment which in the accusatory clause charged the defendant with unlawfully selling intoxicating liquor in local option territory, and in the charging clause accused him of unlawfully selling intoxicating liquor under the “two-mile prohibitory Act of 1884” applicable to Cumberland county, did not violate section 125 of the Criminal Code of Practice by charging more than one offense.</p> <p>2. Intoxicating Liquors — Sufficiency of Indictment. — An indictment which in the accusatory clause charged the defendant with unlawfully selling intoxicating liquor in local option territory, and in the charging clause accused him of unlawfully selling intoxicating liquor under the “two-mile prohibitory Act of 1884” applicable to Cumberland county, was sufficiently specific to put the defendant on notice of what offense' he was to be tried.</p> <p>3. Statutes — Extent to Which Applicable. — It is not essential, in order to constitute a statute a public act, that it be applicable to all parts of the state; it is sufficient if it extend to all persons doing, or omitting to do an act within the territorial limits described therein.</p> <p>4. Intoxicating Liquors — Statutes—Pleading.—The two-mile Act of 1884 (Acts 1883-4, vol. 1, p. 292), prohibiting the sale of intoxicating liquor in Cumberland county, is not a private statute which, under subsection 2 of section 119 of the Civil Code of Practice, must be pleaded by stating the title and the day on which it became a law.</p>

<p>1. Indictment and Information — False Swearing. — An indictment for false swearing in which the allegation, “after first being sworn,” was used, instead of “after first being duly sworn,” was not bad, because of the failure to use the word “duly,” as the manner of taking an oath is not material in the absence of an express statute, and a witness should be sworn in such form as he considers binding upon his rconscience.</p> <p>2. Criminal Law — Continuance.—It is not reversible error to refuse a continuance of a case on account of absent witnesses, where it is not the appearance term and where the testimony of the witnesses was not important or material, and where defendant’s affidavit was read to the jury as the .deposition of the witnesses.</p> <p>3. Criminal Law — Argument of Counsel. — It is not reversible error for the trial court to limit the argument of counsel to ten minutes where the evidence in the case is short, simple and easily understood.</p> <p>4. Criminal Law — Argument of Counsel. — Reasonable time should be allowed for the argument of a case, but what constitutes reasonable time depends upon the facts and circumstances in each case.</p>

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

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

<p>1. Schools and School Districts — County Superintendents of Schools —Qualification.—Under section 4399 of the Kentucky Statutes, a certificate'of qualification is equivalent of a state certificate in all respects, including the term of its duration.</p> <p>2. Schools and School Districts — County Superintendent of Schools —Qualification.—Section 4399 of the Kentucky Statutes provides that a candidate for the office of county superintendent of common schools shall hold a state diploma or a state certificate which •will not. expire during his proposed term of office, and section 4503 provides that a state certificate may be renewed at the expiration of eight years if it shall not have been revoked and if the holder shall not have failed for two consecutive years to be engaged in active school work, and that in no case shall it be valid for a period longer than sixteen years. Held, that a candidate holding such certificate shall be eligible for election to such office unless the sixteen years will expire during his term of office.</p>

<p>1. Prohibition — Discretion as to Grant of Writ. — The Court of Appeals has jurisdiction to prohibit, by original proceedings, an inferior court from proceeding beyond its jurisdiction. '</p> <p>2. Insane Persons — Pauper Idiots — Inquests—Jurisdiction of Courts. — ■ The courts of this state haying jurisdiction to hold inquisitions over pauper idiots have no authority in their judgments to proceed further than to find the person in charge an idiot, and to fix the statutory allowance for his committee, but not to direct the Auditor of Publio Accounts to pay to such committee the allowance, and if the judgment should attempt to do so, that part of it so attempting is void, and a rule issued against the auditor to show cause why he has not made the payment would also be void.</p> <p>3. Insane Persons — Pauper Idiots — Allowance to — Payment to Committee. — The Auditor of Public Accounts is not authorized to pay an allowance to a pauper idiot, except to his duly appointed committee, and then only after such committee has qualified and executed bond as required by section 2149 of the statute.</p> <p>4. Courts — Claims Against State — Jurisdiction.—While the Franklin Circuit Court, under subsection 2 of section 340a of the Kentucky Statutes, has only concurrent jurisdiction in regard to the allowance of or adjudging claims against the state, with Other courts of similar jurisdiction throughout the state, it has exclusive jurisdiction, under subsection 1 of that section, in proceedings to compel the auditor to pay the claim.</p>

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

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

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

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

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

<p>1. Trial — Instruction.—An Instruction which, submits to the Jury a question that is not in issue upon the evidence is erroneous.</p> <p>2. Carriers — Negligence—Trial—Instructions.—Plaintiff, who was suing to recover for injuries alleged to have been sustained as the result of the wreck of a passenger train upon which he was a passenger, introduced evidence showing the wreck of the train and his injury thereby. Defendant contented itself with an attempt to show that plaintiff was not injured, and did not introduce any evidence to explain the accident. Held, that proof of the accident was evidence of negligence upon the part of defendant, and defendant having introduced no evidence on that question, it was error to submit it to the jury, and the instructions should have assumed negligence.</p> <p>3. Damages — Impairment of Earning Power. — In the absence of an allegation of permanent injury, there can be no recovery for permanent impairment of ability to earn money.</p> <p>4. Damages — Impairment of Earning Power. — Where permanent injury is alleged and proven, the instruction should authorize a recovery for past and future pain and suffering and for permanent impairment of ability to earn money.</p>

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

<p>Fraudulent Conveyances. — Evidence examined and found insufficient to establish that the transaction assailed was fraudulent.</p>

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

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

<p>1. Bail — Defects in Antecedent Proceedings. — A bail bond will not be held -to be invalid because of slight omissions or errors by the court, where it appears that defendant was in custody, charged with a felony, and procured his release by the execution of the bail bond.</p> <p>2. Estoppel — Instruments Operating as Estoppel. — Parties to a recognizance or bail bond are estopped by the execution of it, to deny the truth of the recitals it contains.</p>

<p>1. Bills and Notes — Denial oí Credit Upon Note — Pleading.—A denial of an allegation that credits placed upon appellee’s note on a certain date by appellant, out of funds due appellee, were wrongful appropriations of appellee’s funds, is a substantial denial that the note had theretofore been paid in full by appellee.</p> <p>2. Banks and Banking — Introduction of Books to- Show Entries. — Appellee having introduced as evidence the books of appellant's assignor, to show entries therein favorable to his contention, cannot object to appellant’s use of the same books, to show other entries in reference to the same transactions, which explain and elucidate the entire matter.</p> <p>3. Banks and Banking — Consideration of Note — Burden of Proof. — An illiterate customer of a bank having signed a note, upon demand of the bank’s cashier, protesting that he did nat owe the amount thereof, in a suit for an accounting and settlement of accounts between the parties, where the bank had kept all the accounts, without furnishing the customer with any evidence of his deposits, and the evidence showing conclusively that there was a want of .consideration as to part of the note at least, and that his name had been attached to many spurious notes by a dishonest cashier, the burden is upon the bank to show the true consideration of the note.</p> <p>4. Banks and Banking — Accounts—Evidence.—Evidence examined and acounts between the parties audited.</p>

<p>On motion to dissolve injunction.</p>

<p>1.' Divorce — Abandonment—Evidence.—Where by amended answer and counter-claim filed to a petition for divorce, the defendant seeks a divorce from the plaintiff on the ground of abandonment, the counter-claim has the same effect as a petition filed in an independent action; and, although the plaintiff’s right to a divorce be not established by proof, the defendant may and should be granted a divorce on the ground of abandonment by the plaintiff, • relied on therein, if such abandonment be satisfactorily shown by the evidence to have been without fault on the defendant’s part, and to have continued for more than a year before the filing of the amended answer and counter-claim.</p> <p>2. Divor.ce — Abandonment—Evidence.—In this case it was error for the lower court to hold that the defendant was not entitled to the divorce because the period of the plaintiff’s abandonment of the defendant had not extended over one year next before the filing of the plaintiff’s petition, when it had continued for one year before the filing of the defendant’s counter-claim, which was the beginning of the latter’s action for divorce.</p>

<p>1. Indictment and Information — Plea of Former Conviction. — Although an indictment need not state the date of the commission of this offense under the provisions of section 129 of the Criminal Code, still if it does state a date and a plea of guilty is entered thereto, a judgment rendered on such a plea will not avail the defendant as a plea of former conviction for another similar, offense covering the same period and which the evidence shows was committed on a different date from that charged in the indictment to which the plea of guilty was entered. In such case the plea of former conviction can have no effect on another indictment, unless the facts upon the trial under the latter covers the same date that is charged in the first one.</p> <p>2. Criminal Law — Evidence—Subsequent Indictment — Bar.—If the evidence heard at the trial under an indictment does not fix the offense for any specific date and the jury would be authorized to return a verdict for any offense which may have been committed within the period of limitation fixed by the statute for the prosecution of such offenses, a conviction or an acquittal will be a bar to another indictment for an offense shown to have been committed at any time within that period of limitation, but otherwise if the conviction is had under a plea of guilty and under the circumstances shown in No. 1.</p>

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

<p>1. Exceptions, Bill of — App'roval by Judge Who Did Not Preside at the Trial — Effect.—A judge who did not preside at j;he trial has no power to sign and approve the bill of exceptions.</p> <p>2. Exceptions, Bill of — Approval—Power of Judge Whose Term Has Expired. — A regular judge who presided at the trial is without power to sign and approve a bill of exceptions after his term of office has expired.</p> <p>3. Exceptions, Bill of — Motion to Strike — When Sustained. — When neither the regular judge who presided at the trial nor his successor in office has the power to sign and approve a bill of exceptions, the bill of exceptions, though signed and approved by both of them, will be stricken from the record.</p> <p>4. Exceptions, Bill of — -Expiration of Term of Presiding Judge — Bystander’s Bill — Practice.—When neither the judge who presides at the trial nor his successor in office has the power to sign and approve a bill of exceptions, the parties must resort either to a bystander’s bill, or agree that the judge in office, when the bill is presented, may sign it.</p>

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

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

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

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

<p>1. Municipal Corporations — Police Power and Regulations — Public Health. — It is a legitimate exercise of tbe police power to provide reasonable regulations having for their object the preservation of the he'alth of the citizen, and to this end to provide such reasonable regulations for the handling and sale of foodstuffs as will maintain or Improve sanitary conditions.</p> <p>2. Municipal Corporations — Police Power land Regulations — Sale of Fresh Meat. — Charters of cities of the second class as found in Kentucky Statutes, subsections 1, 7 and 8 of section 3058, expressly confer upon the city council of such cities the authority to regulate the sale therein of fresh meats, and Ian ordinance duly passed in the city of Newport, which is one' of the second class, prohibiting the sale of fresh meats by retail from a vehicle in or upon the streets of the city is not unreasonable, arbitrary or discriminatory, and is a valid exercise of the police power conferred by the legislature upon such cities.</p> <p>3. Municipal Corporations — Ordinances—Sale of Fresh Meat. — Such an ordinance is regulatory in its nature, although it prohibits the sale of such commodity in a particular manner which is shown to be one that is unsanitary and detrimental to the health of the citizen, as mere regulations alone are necessarily prohibitive of some features of the conducting of the particular business attempted to be regulated.</p> <p>4. Municipal Corporations — Police Power — Ordinance.—Neither "a statute nor an ordinance is invalid because it is aimed at only a part of existing vices and does not include all of them, pro-vi dec! that the supposed vices and the attempted regulation are such as the law-making authority had a‘ right to make.</p>

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

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

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

<p>1. Master and Servant — Safe and Unsafe Way of Doing Dangerous Work. — If there is a safe way and an unsafe way of doing dangerous work, and the master directs the servant to do the work in the unsafe way, and the servant does not understand and appreciate the danger attending the unsafe method which, he has been directed to follow by the master, and it is not so obvious as to charge the servant with notice, the master should be liable for an injury sustained by the servant in the progress of the work on account of the unsafe plan adopted, if the servant was in the exercise of ordinary care for his safety.</p> <p>2. Mines and Mining — Safe and Unsafe Way of Removing “Stumps” and “Pillars” — “Creep” of Mountain. — It is a well known fact in. coal mining affairs, that a mountain from which the coal has been taken will “creep” or tilt toward the mouth of the mine unless the “stumps” and “pillars” left to support the roof of the mine are taken out in the proper way; and where the mine owner adopts an unsafe plan of removing the “stumps” and “pillars,” and this unsafe plan causes the mountain to “creep,” thereby forcing out of the roof bodies of slate, he will be liable in damages to a miner who has been injured by the falling slate.</p>

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

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

<p>On motion to dissolve a temporary injunction, granted by the Judge of the Harlan Circuit Court.</p>

<p>■1. Criminal Law — Cliange of Venue. — The trial court is without authority to grant a change of venue, unless the petition therefor is supported and corroborated by affidavits of at least two credible witnesses, as provided in section 1110 of the Kentucky Statutes.</p> <p>2. Criminal Law — Continuance at Indicting Term. — In order to avoid a continuance, at the same term at which an indictment is returned, the Commonwealth’s Attorney must ¡admit as true defendant’s affidavit as to what absent witnesses would say if present; but, at a subsequent term, in order to coerce a trial, the attorney for the Cbmmonwealth need only admit that the absent witnesses, if present, would so testify. „</p> <p>3. Criminal Law — Review.—This court has no jurisdiction to review a decision of the trial court upon challenges to the panel and for cause, in a criminal Case.</p> <p>4. Criminal Law — Conspiracy—Evidence.—On the trial of one of three men who participated in the killing of a fourth, evidence of a statement made by another of the three before the killing, no conspiracy having been charged in the indictment and defendant being in no way connected with, it, was incompetent and was not cured by the court’s admonition to the jury not to consider it unless they believed that the defendant and others were acting together at the time of the killing.</p> <p>5. Criminal Law — Evidence.—The admission of incompetent evidence, where it does not appear that defendant could have been prejudiced thereby and the instructions do not authorize a conviction by reason of any of such evidence, will not authorize a reversal.</p> <p>6. Criminal Law — Memorandum of Evidence by Juror. — A juror in the trial of a criminal. cause made a brief memorandum of some of the salient points in the testimony of some of the witnesses, which he presum'ably had with him during the consideration of the case by the jury. There was no evidence that any use was made of the memorandum by the juror who made it or by any other of the jurors, and there was nothing in the memorandum that w’as not warranted by the evidence. Held, that in the absence of the testimony heard by the lower court concerning the question, this of itself was not such misconduct as would authorize a reversal.</p> <p>7. Criminal Law — Instructions.—The instructions were not copied . into the bill of exceptions, but were therein referred to by number, as copied into the bill of evidence, where they were set out in full. Both the bill of exceptions and the bill of evidence had the examination and approval of the trial court endorsed thereon. Held, that the instructions were sufficiently authenticated and identified and were properly before this court for consideration ' upon appeal.</p> <p>8. Criminal Law — Instructions.—Error in instructions, to authorize a reversal, must be prejudicial to the substantial rights of the appellant.</p>

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

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

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

<p>1. Carriers — Personal Injuries — Damages—Appeal and Error.— Where, in an action to recover damages for personal injuries claimed to have been sustained by the plaintiff from a fall in stepping from a street car, the petition alleged that the fall occurred from the catching of her skirt on some part of the car because of its negligent construction and defective condition, but on the trial the plaintiff’s evidence failed to show any defect in the construction or condition of the car or the presence of any ob-. struction or object thereon upon which her skirt could have caught; and that of the defendant conclusively showed the absence of any defect in the construction or condition of the car and of any object or obstruction upon which plaintiff’s skirt could have caught, the refusal of the trial court to peremptorily direct a verdict for the defendant upon its motion, made at the conclusion of the evidence, was reversible error.</p> <p>2. Negligence — Evidence.—Negligence is never presumed. It must be established by direct and positive evidence thereof or by the proof of facts or circumstances from which it can properly be inferred. When the case is one of negligence or no negligence and the evidence is equally consistent with either, the party upon whom the burden of proving the negligence rests must fail. Especially is this true where it is sought to show the negligence entirely by-circumstantial evidence. . 0</p> <p>S. Negligence — Proximate Cause — Evidence.—Neither courts nor juries are authorized to indulge in speculation or guesswork as to the cause of accidents. To authorize a recovery there must be some tangible evidence from which it may be fairly inferred that the defendant was guilty of negligence, and that such negligence was* the proximate cause of the injury. If the injury may as reasonably be attributed to a cause that would excuse the defendant as to a cause that will subject him to liability, then the well-settled rule is that a recovery cannot be had.</p>

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

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

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

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

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

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

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

<p>Damages — Breach of Contract to Grade Land. — In an action against a railroad for damages for breach of a contract to remove earth and stone from plaintiff’s land, obligating it to reduce the land from which the earth and stone were taken to the level of the railroad grade and in condition for building purposes, the measure of damages is the difference between the market value of the land in its present condition and what its market value would have been if the land from which the earth and stone were removed had been reduced to the level of the railroad grade and left in condition for building purposes.</p>

<p>1. Homestead — Antecedent Debts — Eight to Acquire. — Where, both at the time the debt is created and the alleged homestead is acquired, the statute provides for a homestead of the value of ?1,000.00, which shall be exempt against all debts or liabilities created or incurred after June 1, 1866, but further provides that the exemption shall not apply to sales under execution, attachment or judgment at the suit of creditors, where the debt or liability existed prior to the purchase of the land or the erection of improvements thereon, a debtor cannot acquire a homestead as against antecedent debts.</p> <p>2. Homestead — Purchase of With Exempt Wages — Evidence.—Where the statute provides that wages to the amount of $50.00 shall be exempt, but this exemption shall not apply to debts contracted for food, raiment and house rent for the family, a debtor who buys land and pays for it by performing labor in removing the timber is not entitled to a homestead therein on the ground that it was paid for with exempt wages, as against antecedent debts contracted for food and raiment for his family.</p> <p>3. Appeal and Error — Finding of Chancellor — Pleading—Evidence.—A finding of the chancellor which is not based on a pleading or supported by any evidence is erroneous.</p>

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

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

<p>1. Insurance — Livestock Insurance — Insurance Agents — Waiver by Agent. — The special representative of a livestock insurance company entrusted with the duty of soliciting insurance, delivering policies, collecting the premiums and appointing local agents, subject to the approval of the company, may waive a provision of a policy of livestock insurance to the eSect that there shall be no liability on the part of the company if the assured shall fail to render at once to the secretary of the company written notice of the sickness of the animal.</p> <p>2. Insurance — Livestock Insurance — Insurance Agents — Waiver—■ Authority — Evidence.—In an action on such a policy, evidence of the authority of the agent to waive the provision with reference to notice to the secretary of the company, and of the fact of waiver, considered, and held to make a question for the jury.</p>

<p>•1. Evidence — Privileged- Communication — Offer to • Compromise. — A letter which is an offer to compromise an existing or threatened controversy is a privileged communication and not admissible in evidence against the one making the offer, unless it contains an admission of fact pertinent to the issue, in which event so much thereof as contains the admission is competent.</p> <p>2. Evidence. — Letter examined and held not to be admissible under the above rule.</p> <p>3. Evidence — Memorandum—Inadmissibility of. — A written memorandum of an alleged verbal contract of sale was made by a witness shortly after the contract was alleged to have been made, but not in the presence of the parties or in the regular course of business. The witness who made the memorandum was present at the trial and testified positively ana explicitly concerning all that was said and done by the parties at the time, without reference to the memorandum to refresh his memory. Held, that the testimony of the witness was the best evidence and the memorandum was not admissible as evidence.</p> <p>4. Evidence — Party Testifying for Himself. — Subsection 3 of section 606 of the Civil Code, which prohibits a party from testifying for himself, in chief, after introducing other testimony for himself, in chief, has no application to testimony in rebuttal, and it was error for the trial court not to permit the plaintiff to testify for himself, in rebuttal, after having introduced other testimony, in rebuttal.</p> <p>6. Damages — Action Against President of Corporation for Breach of Contract — Instructions.—The defendant, the president of a corporation, was sued individually for the alleged breach of a contract of sale of the corporate stock. There was evidence in the case concerning agreements of the corporation to buy the stock of different persons, and of a suggestion by defendant to the board of directors concerning the purchase, by the corporation, of certain of plaintiff’s stock. The court, in instructing the jury, told them that if they believed that plaintiff sold to the defendant, “in his individual capacity,” certain shares, etc.: Held, that this was not error, since its only effect was to emphasize to the jury the real issue, and prevent possible confusion, from reference in the evidence to the insurance company of which defendant was president.</p>

<p>1. Judges — Objection to Judge — Waiver of Objections. — An objection to tbe trial judge is a question of jurisdiction, and to be available must be made before an appearance to tbe merits of tbe action, or tbe submission of preliminary motions by either party preparatory to a trial; and where the motion and affidavit are filed after the defendant responded to tbe merits, bis motion is too late, and tbe fact that be was thereafter permitted, to withdraw bis response did not restore bis right to insist on tbe motion.</p> <p>2. Attorney and Client — Disbarment — Information — Title — Sufficiency. — It is immaterial that tbe information on which a subsequent disbarment proceeding is based does not proceed in tbe name of the aggrieved client, or comply with tbe strict rules of pleading with reference to the caption.</p> <p>3. Attorney and Client — Disbarment Proceeding — Rule to Show Cause —Sufficiency.—A disbarment proceeding against an attorney for wrongfully failing or refusing, on proper demand, to pay over money collected in the name of the Commonwealth, on relation of the aggrieved client, is sufficient.</p> <p>4. Attorney and Client — Disbarment Proceeding — Title of Proceeding —Parties Complainant. — In such a proceeding in the name of the Commonwealth, on relation of the aggrieved client, a collecting agency which had sent the acount to the attorney for collection and had an interest in the proceeds when collected, may be properly included as one of the parties complainant.</p> <p>5. Attorney and Client — Failure to Pay Over Money Collected — ■ Information — Sufficiency.—An information which charged in substance that an attorney wrongfully neglected or refused to pay over to his client money collected by him after the money had been demanded of him in the county of his residence, is good on demurrer.</p> <p>6. Attorney and Client — Disbarment Proceeding — -Information—Rule —Sufficiency—Motion to Quash. — The fact that an information contained no caption affords no ground for quashing a rule issued in the name of the Commonwealth on the relation of the aggrieved parties.</p> <p>7. Attorney and Client — Failure to Pay Over Money Collected — Disbarment Proceeding — Reparation—Effect.—Mere reparation to the client prior to the commencement of a proceeding to disbar an attorney under section 104 of the Kentucky Statutes, for wrongfully neglecting or refusing, on proper demand, to pay over money collected by him for a client; affords no ground for the dismissal of the proceeding.</p> <p>8. Attorney and Client — Disbarment Proceeding — Parties Complainant — Motion to Elect. — In a disbarment proceeding in the name of the Commonwealth, on the relation of the aggrieved client and the collection agency which sent the claim to the attorney to be collected, it is not error to require the Commonwealth to elect in whose name it would prosecute the proceeding.</p> <p>9. Attorney and Client — Disbarment Proceeding — Evidence—Sufficiency. — Evidence in a proceeding to disbar an attorney for wrongfully neglecting or refusing to turn over money collected by him for a client examined, and held sufficient to sustain a judgment Of suspension.</p>

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

<p>1. Appeal and Error — Record—Omitted Parts of. — While an appellant may bring up so much of a record as he deems necessary to the determination of the question involved, if it appears that portions of the pleadings or evidence bearing upon the question have been omitted, the judgment will be affirmed.</p> <p>2. Appeal and Error — Record—Omitted Parts of. — The transcript not ■containing the petition, and it being impossible, to tell from the schedule and the clerk’s certificate whether or not all of the evidence heard pertinent to the question involved has been brought up to this court, it must be presumed that the omitted parts of the record support the judgment.</p>

<p>Quieting Title. — A suit to quiet title, to land may be maintained under section 11 of the Kentucky Statutes under a title acquired 'by fifteen years of adverse possession.</p>

<p>1. Constitutional Law — Prosecution by Information. — Section 12 of tbe Constitution, providing that no person shall be proceeded against by information for an indictable offense, applies to offenses that were indictable at common law. Misdemeanor offenses created by statute may be prosecuted by information.</p> <p>2. Criminal Law — Prosecution of Offenses by Information. — The legislature may create offenses punishable by fine and imprisonment and provide for their prosecution by information in place of indictment, although the penalty may be more than that authorized by section 1141 of the statutes.</p> <p>3. Criminal Law — Classification in Creation of Offenses. — The legislature has large authority and discretion in the creation of statutory offenses and in the division of offenses into classes applicable to certain persons and certain kinds of business, and may provide different penalties for the different classes of offenses so created, as. well as different modes of prosecuting them.</p> <p>4. Criminal Law — -Excessive Penalties. — Defendant cannot complain of a statute that does not affect him. The defendant will not be heard to object that a statute under which he is being prosecuted imposes excessive penalties when he is not affected by this alleged fault in the statutes.</p> <p>6.Railroads — Classification of Offenses That May Be Committed By. —The legislature in the enactment of penal statutes may deal with railroads as a class, defining,the offenses railroads may be guilty of and fixing the penalty therefor.</p> <p>6. Railroads — Operation of Passenger Trains — Construction of Section 772a of the Kentucky Statutes. — Under section 772a of' the Kentucky Statutes a railroad company must operate daily except Sundays, one passenger train each way over a line of road exceeding five miles in length, unless it has a lawful excuse for not so doing.</p> <p>7. Railroads — Operation of Passenger Trains — Construction of -Section 772a of the Kentucky Statutes — Excuse for Failure to Operate. — A railroad company wilfully violating the provisions of this statute, without a lawful and sufficient excuse, may be subjected to its penalties. A railroad company may excuse its failure to operate its passenger trains daily when the roadbed is, without fault or negligence on the part of the company, in such condition as that it would not be safe to operate passenger trains over it. But it will have no excuse if the condition of the road has been brought about by the negligence of the company, or is due to any cause manifesting a purpose on its -part to produce the condition that might make it unsafe to operate trains.</p> <p>8. Railroads — Operation of Passenger Trains — Construction of Section 772a — Excuse for Failure to Operate. — In a prosecution against a railroad company for failing to operate passenger .trains as required by the statute, it is competent for the railroad company to show that, without its fault or negligence, the roadbed was in such condition as that passenger trains -could not be operated over it with safety.</p>

<p>Motion for Writ of Mandamus.</p>

<p>1. Libel and Slander — Truth of Publication in General. — In an action for libel a newspaper is not to be held to the exact facts nor to the most minute details of the transaction contained in the publication complained of. What the law requires is that the publication should be substantially true, the truth in such eases constituting a complete defense, although the publication be inspired by malice, or, if false, would be libelous per se.</p> <p>2. Libel and Slander — Truth as Justification in General. — Where the publication in question goes no further than to state the facts of the occurrence or transaction and the facts as stated are proved to be, in substance, true, no ground will be given for the recovery of damages by one who thinks himself aggrieved or injured by such publication.</p> <p>3. Libel and Slander — Truth as Justification in General. — Where the publication complained of is published in good faith and with a belief that it was true and the evidence shows it to be substantially true, the defense is complete and the defendant entitled to . a peremptory instruction.</p>

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

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

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

<p>1. Physicians and Surgeons — Practice of Medicine. — The term “practice of medicine,” in statutes regulating the practice of medicine, is to he understood in its popular sense.</p> <p>2. Physicians and Surgeons — Practice of Medicine. — The term “to treat any human ailment by any method” means to undertake to effect a cure of a human ailment by any method.</p> <p>3. Physicians and Surgeons — Practice of Medicine. — To attempt the cure of a human ailment, regardless of the character of the method, means that the one undertaking the cure must necessarily diagnose the symptoms of the disease, determine what the disease is, prescribe the remedy, and administer it, either in person or by directions to someone who is associated with the-patient.</p> <p>4. Physicians and Surgeons — Nurses—Administration of Anesthetics. —A trained nurse, who administers anesthetics to a patient undergoing or about to undergo a surgical operation, in the presence of and under the immediate supervision and -direction of the surgeon in charge, who prescribes the anesthetic to be used and directs the manner of its use, the nurse -neither diagnosing the disease nor prescribing the kind of anesthetic, is not engaged in the “practice of medicine,’’ within the meaning of Chapter 86, Ken' tucky Statutes.</p> <p>5. Physicians and Surgeons — Administration of Anesthetics — Nurses— Assistants. — The surgeon, in the selection of an assistant to administer an anesthetic to a patient, undergoing a surgical operation, must exercise the same degree of care and skill as he is required by law to exercise in the performance of any part of the operation.</p>

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

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

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

<p>Appeal from Jefferson Circuit Court (Common Pleas Division, No. 2).</p>

<p>1. Infants — Action, to Sell Indivisibile Real Property — Pleading.—A petition framed under section 490 of the Civil Code of Practice for a sale of indivisible real property jointly owned and a division of the proceeds, and which fails to allege that the plaintiffs were in possession of the land, is fatally defective.</p> <p>2. ■ Equity — Common Law Action Brought in Equity — Trial.—Where a common law action is brought in equity, and no objection is made to the form of the action, the chancellor may properly proceed to try it.</p> <p>3. Wills — -Life Estates — Remainder.—Where land was devised to a daughter, but was not to be disposed of during her lifetime, and if she should leave no heirs the land was to go to J. F. at the daughter’s death, she took a life estate, with remainder to her children.</p> <p>4. Descent and Distribution — Descent of Land of Infant Dying Without Issue.- — Section 1401 of the Kentucky Statutes, which provides that where an infant dies without issue, having title to real estate derived by gift, devise or descent from one of his parents, the whole estate shall descend to that parent and his or her kindred, does not apply to lands derived from a grandparent.</p> <p>5. Descent and Distribution — Descent of Land of Infant. Dying Without Issue. — Where an infant derived lands by a devise from his ■grandfather and died in infancy and without issue, the lands de scended to the infant’s heirs-at-law in the same way as they would have descended if he had died an adult.</p>

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

<p>Appeal and Error — Setting Aside Order and Redocketing Case. — ■ An appellant has the right to have his case decided; and where an order was inadvertently entered affecting a case upon the authority of another case presenting the same question, it will he set aside upon motion and the case redocketed.</p>

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

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

<p>1. Wills — Probate of Will — Collateral Attack. — A judgment of a court probating a will is conclusive as against collateral attack of the fact or the due execution of the will, the condition of testator’s mind, the absence of undue influence, and other facts and circumstances tending to make it a valid will, and it will be presumed in such collateral attack that the probate court ascertained and found that the will was executed according to the law of the place, although it may not appear on the face of the judgment to have done so.</p> <p>2. Wills — Presumption of Execution. — If a will appears in the judgment probating it to have been executed with attesting witnesses, and that it was probated upon testimony given by such witnesses, although they may be incompetent to-testify about its execution, it will be presumed that the will was validly executed as a holographic will, which would relieve the incompetency of the attesting witnesses to it, and the will will be upheld unless set aside by some direct proceeding for that purpose.</p> <p>3. Wills — Holographic Will — .Probate of. — The disqualifying provisions of section 4836 of Kentucky Statutes as to attesting witnesses who are devisees under the will do not apply to the probating of a holographic will, as it may be probated upon the testimony of devisees without their forfeiting their devises under the will.</p> <p>4. Wills — Probate of — Witnesses—Competency.—In a suit brought by an executor to sell land under a will, the terms of which empower the executor to sell the land without decree, but the land is sold under judgment duly rendered, the purchaser filed exceptions to the sale because the testator procured title to the property through wills which were actually holographic but attested by the devisees, "and the judgments probating them do not recite the fact that they were holographic: Held, that the exceptions being a collateral attack of the probate proceedings, it will be presumed that the court properly ascertained and determined that the wills were holographic, and that the devisees were competent witnesses to that fact.</p> <p>5. Judicial Sales — Purchasers—-Title.—The will of the testator whose land was sold under decree, and to which exceptions were filed by the purchaser, did not dispose of any real estate to the beneficiaries in the will, but gave them only the proceeds of the sale of real estate to be made by the executor: Held, that in a suit where all the heirs of the testator are parties in which the decree of sale is rendered, and the order of sale is not objected to by any of the heirs, the purchaser will obtain a good title, although the testator’s title may have been imperfect, because of invalid wills under which he held the land, if the parties to the suit include all the heirs of those who executed such imperfect wills.</p>

<p>Appeal and Error — Evidence—Weight of For Jury. — Where the evidence is conflicting and the verdict of the jury is not flagrantly against the evidence, the verdict will not be disturbed, although it may be against the weight of the evidence.</p>

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

<p>1. Railroads — Duty to Maintain Lookout. — In the absence of statutory regulation, the duty of a railroad company to maintain a lookout for persons using its tracks and premises depends upon whether or not their presence must reasonably' be anticipated, and this applies to employes as well as members of the general public, except where the employee, or one on the railroad company’s tracks with its knowledge and consent, is one whose duties are such as to divert his attention from passing trains.</p> <p>2. Master and Servant — Negligence of Railroad Brakeman — Lookouts. — Decedent, a sub-brakeman, had written to the railroad company for a pass, so that he might go to another town to transact some private business. The railroad company maintained a yard office, situated in the country some distance from the town, at which employes were permitted to get their mail. The evidence showed that from twelve to fifteen employes, whose duties were such as to require them to look out for passenger trains, used the tracks between the yard office and town twice daily. Decedent went to the office on Sunday to get his pass, and while walking away from the office toward the city was run over and killed by a passenger train. Held: That the company owed him no duty of lookout.</p>

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

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

<p>1. Wills — Contest—Evidence—Attesting Witnesses. — The due execution of a will is a question of fact to be determined from all the evidence in the case, and not from the testimony of the subscribing witnesses only. If the evidence, taken as a whole, is sufficient to show that the will was properly executed, its validity should be upheld even against the testimony of one or both of the attesting witnesses.</p> <p>2. Wills — Contest—Attesting Witnesses — Evidence—Sufficiency.—In ■ a will contest, evidence of the due execution of the will held to make a question for the jury, notwithstanding the evidence of one of the attesting witnesses that he did not see the testator’s signature, and the evidence of the other attesting witness that he did not think he saw such signature.</p> <p>3. Wills — Establishment—Evidence—Attesting Witnesses. — Kentucky Statutes, section 4836, making one “who attests the execution of a will” a competent witness if he is a beneficiary under the will, only if the will cannot otherwise be proved, and then with the result of his devise or bequest being void, applies only to persons who subscribe the will as attesting witnesses under section 4828, and does not prevent persons who are not subscribing witnesses from testifying to the acts and declarations of the testator.</p> <p>4. Wills — Devisees—Competency.—The incompetency of witnesses because of interest no longer exists.</p> <p>5. Witnesses — Competency—Confidential Communications — Husband and Wife — Acts and Declarations of Deceased. — Neither subsection 1, section 606 of the Civil Code, providing that “neither a husband nor his wife shall testify while the marriage exists or afterwards concerning any communication during marriage,” nor subsection 2, section 606, providing that “no person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done, ... by one who is of unsound mind, or dead when the testimony is offered to be given,” applies to will contests; and the widow or other devisee under a will may testify to the acts and declarations of the testator, notwithstanding such sections.</p>

<p>1. Witnesses — Cross-examination of Incompetent Witnesses. — A party who has objected and excepted to the testimony of an incompetent witness may thereafter cross-examine the witness upon such - questions as he has erroneously been permitted to testify to, without rendering the testimony competent or waiving his objections to its incompetency.</p> <p>2. Evidence — Burden of Proof — Bills and Notes. — Plaintiff sued to recover on three promissory notes. Defendant answered, admitting the execution of the notes, but claiming credits thereon which were denied by plaintiff. The evidence showed that a partial settlement was at one time had between the parties, whereby one of the notes was surrendered and defendant was given credit for payment of interest on the other notes. Defendant showed three payments upon the indebtedness, originally evidenced by the three notes sued on and one other, one of which, however, was made prior to the partial settlement mentioned above. Held: That the burden was upon defendant to show, not only the payment but that it had not been properly credited on the note thereafter surrendered to him, and that, in the absence of proof to the contrary, it would be presumed that that payment was included in the partial settlement made subsequent thereto, and credited upon the surrendered note.</p>

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

<p>1. Schools and School Districts — Board of Education — Powers and Functions in General. — In placing the control of the common schools of the county in the hands of a board of education, the legislature intended to make the board of education independent; and when the board of education reports to the fiscal court of the county its estimate of the amount of money required to meet the educational needs of the county for the ensuing year and demands! that it make such' a tax levy, within the limit prescribed by law, as will meet that end, the fiscal court will not be permitted to refuse to comply with the board’s demand, unless it can satisfactorily show that the members of the board acted corruptly or in bad faith.</p> <p>2. Schools and School Districts — Board of Education — Disposition of Revenue. — Where the board of education has in the hands of its treasurer a surplus of school moneys, left over from the tax levy of the previous year, after paying all expenses of maintaining the common schools of the county for the previous year; in making its estimate of the amount required for the educational needs of the county for the ensuing year, and making demand of the fiscal court for a tax levy to raise same, the board should report and be charged with such surplus, and the levy made by the fiscal court, fixed at such a rate as will raise an amount, which, together with the surplus in the hands of the board’s treasurer, will realize the total fund required by the board’s estimate for school purposes the ensuing year.</p> <p>3. Schools and School Districts — Levy for School Purposes — Fiscal Court. — When, in making its demand of the fiscal court, the board of education does not furnish it an estimate of the amount which, in the judgment of the board, will be required for school purposes for the ensuing year, but merely demands a tax levy to the maximum limit allowed by law; the fiscal court will not be compelled by mandamus to make the. levy at the maximum rate of taxation allowed by law, or at all.</p> <p>4. Schools and School Districts — Erection of School Houses — Fiscal - Court. — The board of education is authorized by law to determine when and where new school houses shall be erected, and when old ones are in need of repair; and when its discretion is. exercised with respect to such matters, it is not the province of the fiscal court, in the absence of a showing of the abuse of such. discretion or fraud or corruption in its exercise,' to question the action taken.</p>

<p>1. Exceptions, Bill of — Approval by Judge Who Did Not Preside at the Trial — Effect.—In the absence of an agreement by the parties or their counsel, a judge who did not preside at the trial has , no power to sign and approve the bill of exceptions</p> <p>2. Exceptions, Bill of — Approval—Expiration of Term of Presiding Judge — Bystanders’ Bill — Agreement—Practice.—When the term of a judge who presided at the trial has expired, the parties must either resort to a bystanders’ bill, or agree that the judge in office, when the bill is presented, may sign it.</p> <p>3. Appeal and Error — Absence of Bill of Exceptions — Effect.—In the absence of a bill of exceptions, the only question to be determined is whether the pleadings support the judgment.</p> <p>4. Judgment — Pleadings—Sufficiency.—Where, in an action to recover land, the descriptions in the petition’ and judgment are identical with the exception of the following words in the judgment, “ . . . , so as to include all the land embraced in the 400-acre and 200-acre survey,” it cannot be said, in the absence of the evidence, that the judgment embraces land not included in the petition.</p> <p>p. Appeal and Error — Action by Joint Owners to Recover Land — i Judgment in Favor of One Joint Owner — Right of Defendant to Complain. — The rendition of a judgment in favor of one of the plaintiffs instead of all' the plaintiffs who sue as joint owners to recover a tract of land, affords no ground for complaint by the defendant, since the only persons adversely affected by the judgment are the. plaintiffs other than the one in whose favor the judgment was rendered.</p>

<p>1. Wills — Gifts—Gift of Fund. — A gift of the interest, income or product of a fund, without limit as to time, will pass the fund itself.</p> <p>2. Wills — Construction—Character of Estate in Bank Stock. — Where a testator devised one-third of his estate, including his bank stock, to his widow; and further provided that the hank stock was not to he sold so long as it paid a good dividend, and in case that it should become non-paying, or prove to be an unprofitable investment, it should be sold and the proceeds invested in some profitable investment; and, in a subsequent clause of the will the testator further declared that he wanted it distinctly understood that he did not intend to restrict his widow in the use of the proceeds of the dividends or other means acquired from her interest in his personal property, and that she might use and dispose of the same as she pleased, the widow took an absolute estate in the bank stock.</p>

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

<p>1. Wills — Holographic Will — Construction.—Where, by an awkwardly worded holographic will, the testator devised his estate to his eight children, the devise to one of his daughters declaring: “Rhoda D. Froman, what may be coming to her I will it to be in ‘rieal’ estate to have her lifetime for her benefit if she has no heir of her own ‘ishue’ at her death to come back to my ‘bodly’ heirs:” Held, that Rhoda D. Froman took, under the will, a life estate to an undivided eighth interest in the lands left by the testator, with remainder to her child or children living at the time of her death; but if not survived by a child or children, such interest will, in that event, pass to the children, of the testator, other than Rhoda D. Froman, named as devisees in the will.</p> <p>2. Wills — Construction—Remainder,—As no present interest passes to the children of Mrs. Froman under the above devise, and whether such interest will ever vest in them will depend upon their surviving their mother, the life tenant, the remainder created by the will is a contingent remainder.</p> <p>S. Wills — Remainder.—-The distinction between a vested and contingent remainder is, that in the former the interest must vest immediately, but the right to enjoyment of the property is made to depend on some future event; in the latter the interest does not vest immediately, hut is made to depend upon some uncertain, event.</p>

<p>1. Criminal Law — Verdict—Review.—Reversal of a judgment of conviction in a criminal Case will not be authorized on account of error committed by the trial court in admitting incompetent evidence, unless it is clearly made to appear that the defendant was prejudiced in some substantial right by the error.</p> <p>2. Criminal Law — Impeachment of Witness — Admonition.—Failure of the trial court to admonish the jury as to the effect to be given evidence introduced to impeach a witness, will not constitute reversible error, where it is not made to appear from the record, either that the defendant objected to the evidence or requested the court to give the necessary admonition as to the effect to be given it by the jury.</p> <p>3. Criminal Law — Deciding Verdict by Lot — Appeal and Error. — Although the deciding of a verdict by lot is prohibited by Section 271, Criminal Code, and verdicts so arrived at have been strongly condemned by the Court of Appeals, where it is made to appear from the affidavits of eleven of the jurors, uncontradicted by the twelfth, that, although the punishment of the defendant was ascertained by a division of the sum of all the estimates of the jurors by twelve; before this was done the guilt of the defendant was determined by the unanimous assent and vote of the jury; and. after it was done, the jury, each juror separately voicing his assent, unanimously agreed to the verdict giving the defendant the same punishment arrived at by the mathematical calculation; and the adoption of the punishment was not the result of any trick by which an excessive verdict was obtained, in such state of case, the refusal by the circuit court of a new trial to the defendant convicted of grand larceny, on the ground that the verdict was decided by lot, did not constitute error compelling the reversal of the judgment.</p>

<p>1. Municipal Corporations — Streets—Sewers—Sidewalks.—Kentucky Statutes, Section 3643, confers upon the council of a city of the fifth class authority to cause to be constructed or reconstructed streets, avenues, alleys, highways and sewers; also sidewalks and curbing, but requires that the expense of constructing or reconstructing streets, avenues, alleys, highways and sewers be paid in. any of the following four ways: Out of a general fund of the city; by the owners of the lots fronting or abutting thereon; two-thirds by the owners of such lots and one-third by the.city; or upon the ten-year bond plan. The expense of constructing or reconstructing sidewalks, however, it requires to be paid by the owners of the abutting property.</p> <p>2. Municipal Corporations — Improvements—Sidewalks.—As the council of a city of the fifth class is without authority to require the expense of constructing or reconstructing sidewalks to be paid in any other manner than by the owners of the abutting property, the action of the circuit court in granting, at the suit of a resident taxpayer, an injunction restraining the mayor and council of Cloverport, a -city of the fifth class, from constructing sidewalks on a certain street thereon, on the ten-year bond plan, was not error.</p>

<p>1. Insurance — Life Insurance — Premiums—Breach of Payment.— Where the payment of a premium is a condition precedent to a life insurance contract taking effect, the breach may be proven by any competent evidence.</p> <p>2. Insurance — Consideration Por Contract. — The consideration of a life insurance policy, other than a statement made in the application, may be inquired into by evidence, and the true consideration ascertained, and shown that it has not been paid.</p> <p>3 Insurance — Contract—Parol Agreement. — Where a life insurance policy provides that, upon a settlement of the policy or a benefit under it, any indebtedness on account of the policy shall be deducted, the indebtedness may be shown by any competent evidence, written or parol, but no parol agreement or 'preliminary contract made at the time or before the issual of the policy, which modifies or affects the terms cf the policy, nor any reference in the policy to the application, by-laws or rules of the insurance corporation, which is not written into the policy nor endorsed upon it, or is not attached to and accompanies th" policy, shall be -considered as any part of the insurance contract.</p>

<p>Judicial Sales — Inadequacy of Price. — Inadequacy of price, alone, is not a sufficient ground for setting aside a judicial sale, unless the inadequacy is so great as to create a presumption of fraud or shock the conscience of the court, but where the inadequacy is accompanied by circumstances, which tend to cause it, or where it is attended by any apparent unfairness or impropriety or oppression on the part of those connected with the sale, it will be set aside, though the circumstances themselves, alone, would not furnish grounds for vacating the sale.</p>

<p>1. Process — Infants—Service.—Under Civil Code of Practice, section 52, declaring that if a defendant is under the age of fourteen years summons must be served on his father, or, if he have none, on his guardián, or, if none, on his mother, and, if he have no mother, on the person having charge of him; and if the party on whom service is directed is a plaintiff, then it should be served on the person who stands first in the order named in the section, who is not a plaintiff, and, if all are, plaintiffs, it shall, on the affidavit of one or more of them, be the duty of the clerk to appoint a guardian ad litem on whom service may be served, it is not necessary to follow the prescribed order of service where the person directed to be served is a non-resident and cannot be reached by actual service of process.</p> <p>2. Process — Infants—Service.—Where, in a suit against infants by their statutory guardian to sell their real estate for their maintenance and education, it appears from the affidavit of the plaintiff that their father is a non-resident, their mother dead, and that their statutory guardian, who is in charge of them, is the plaintiff in the action, it is the duty of the clerk to appoint a guardian ad litem for the infants, and service of process on him will be sufficient to'bring the infants before the court.</p>

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

<p>1. Wills — Revocation.—A substantial compliance with tiie provision of Section 4833, Kentucky Statutes, is necessary to effect a revocation of a -will'when properly executed.</p> <p>2. Wills — Destruction of Will — Ratification—Revocation.—Tbe destruction of a will by a third person by tbe direction and consent of the testator, but at a considerable distance from him and out of his presence and hearing, even though afterwards ratified and approved by the testator, will not amount to a revocation of the instrument.</p> <p>3. Wills — Revocation—Intention.—It is not the intent alone that controls in the revocation of wills, but the intent must be coupled) with an act amounting to the revocation, such as burning or otherwise destroying, and if the destruction be by a third person it must 'be by the direction and consent of the testator and in his presence and with intention to revoke the same.</p>

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

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

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

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

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

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

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

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

<p>1. Master and Servant — Safe and Unsafe Way of Doing Work. — ■ When there is a safe way and an unsafe way of doing a thing, and the servant voluntarily selects the unsafe way, when he knows and appreciates, or in the exercise of ordinary care for-his own safety should know and appreciate, the danger attending the. unsafe method, the master will not be liable for any injury or accident which may happen to him.</p> <p>2. Master and Servant — Safe and Unsafe Way of Doing Work — . Negligence of Master. — Where the unsafety of the place at which, the servant is injured is caused by the negligence of the master, and the servant does not know or appreciate, and in the exercise of ordinary care could not have known or appreciated that it was unsafe, the master will be liable if he is injured while exercising ordinary care for his own safety.</p> <p>3. Master and Servant — Electric Wires — Failure to Keep Insulated. — ■ Where the insulation on an electric wire used in the operation of a machine in a coal mine was permitted by the master to remain in a defective condition, the master will be liable if a servant is injured on account of this defective condition if the servant did not know, and in the exercise of ordinary care could not have' known, of the defective condition.</p> <p>4. Master and Servant — Custom of Doing Work. — Where it was customary for a hostler in a coal mine to load a cutting machine before disconnecting the electric wire, his failure to disconnect the wire before loading the machine will not defeat a recovery on account of an accident that happened to him, although if he had disconnected the wire the accident would not have happened.</p>

<p>1. Homicide — Former Conviction. — To authorize the imposition of the aggravated punishment under section 1130 of the Kentucky Statutes, which provides an increased penalty for one convicted a second time of a felony punished by confinement in the penitentiary, it is only necessary to plead and prove the fact of the former conviction, and the facts constituting the former offense need neither be pleaded nor proven, and where the defendant in a criminal prosecution for murder had theretofore been convicted of murder, it was unnecessary in the second action to plead or prove the name of the victim of the former crime.</p> <p>2. Homicide — Dying Declarations. — A statement made by the victim of a homicide with reference to the cause of his death, which statement was made in the presence of several witnesses a few hours before his death, and after he had declared that he had abandoned all hope of recovery, was competent evidence against one accused of the homicide.</p> <p>3. Criminal Law — Arrest—Instructions.—Where defendant claimed to have shot the deceased in an attempt to arrest him for a public offense committed in the presence of defendant, a peace officer, an instruction which told the jury that a peace officer might make an arrest in obedience to a warrant delivered to him, or without a warrant, if a public offense was committed in his presence or if defendant had reasonable grounds to believe deceased had committed a felony, was not prejudicially erroneous.</p> <p>4. Criminal Law — Arrest—Instructions.—An instruction was given telling the jury that defendant should be acquitted if they believed from the evidence that he, in a lawful attempt to arrest decedent, was met with such resistance as to put him or another in danger of death or great bodily harm, either real or to him apparent, and the appellant used only such force as was necessary, or to him appeared to' be necessary, to overcome such resistance. This instruction was qualified by another instruction which told the jury that, although defendant was a deputy sheriff, he had no right to arrest the deceased without a warrant, unless he had committed a public offense in defendant’s presence. Held, that the evidence showing that defendant did not have a warrant for the deceased’s arrest, and there being no proof of reasonable grounds to believe that the deceased was guilty of a felony these instructions were not prejudicial to defendant.</p> <p>6. Criminal Law — Arrest—Instructions.—An instruction that if the jury should believe, beyond a reasonable doubt, that defendant was using his office as deputy sheriff as a mere pretext to enable him to get deceased in custody, for the purpose of doing him great bodily harm, in that event deceased had the right to resist the arrest so attempted and to use such means as reasonably appeared to him to be necessary to prevent defendant from taking him in custody, the facts authorizing the jury to so find, was proper.</p> <p>6. Criminal Law — Self-defense—Instructions.—It is proper to qualify the self-defense instruction if there is evidence to show that defendant began the difficulty.</p> <p>7. Criminal Law — New Trial. — To authorize a new trial upon the. ground of newly discovered evidence, it is necessary that the motion be supported by the affidavit of the newly discovered witness or by some other evidence than the affidavit of the accused.</p>

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

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

<p>1. Assault and Battery — Trial—Right to Open and Close. — Where, in an action for damages for assault and battery, the defendant ■admits the assault and pleads- son assault ■ demesne, he has the burden of proof and the right to conclude the argument.</p> <p>2. Appeal and Error — Right to Open and Close — Reversible Error. — • The denial to a party having the burden of proof of the right to mate the concluding argument is reversible error.</p> <p>3. Pleading — Answer—Confession and Avoidance — Color.—Where the petition in an action for damages for assault 'and battery alleges that the defendant “wilfully and maliciously assaulted, shot and wounded this plaintiff,” an answer which denies that the defendant “wilfully and maliciously assaulted, shot and wounded this plaintiff” admits the shooting and wounding.</p> <p>4. Pleading — Admission of Fact — Rules of Pleading. — A party who desires to admit a certain fact is not required by the rules of pleading to adopt any particular form of admission, but has the undoubted right to make the admission in express terms, or by a failure to deny, or by a denial in such form as will amount in law to an admission.</p>

<p>1. Master and Servant — Employers’ Liability Act — Wlien Employe is Employed in Interstate Commerce. — A section band in the service of an interstate railway carrier, killed while going to a place designated by his foreman to assist in unloading ties that would be placed in a track regularly used for interstate traffic, was employed in interstate commerce within the meaning of the employers’ liability act of April 22, 1908, giving a right of recovery against the carrier for the death of an employe while so engaged.</p> <p>2. Master and Servant — Order of Superior — Assumption of Risk-Question of Law. — A section hand thirty-six years of age, though having had but a few days’ experience in railroad work, and though acting under the immediate command of his superior, who attempts to cross a railroad track in front of a train which is only a few feet away and which he knows is approaching, will be held, as a matter of law, to have assumed the risk, since the danger was so obvious and imminent that an ordinarily prudent person in his situation would have refused to encounter it.</p>

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

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

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

<p>1. Assignments for Benefit of Creditors — Action to Settle Estate — < Creditors. — Under sections 436 and 438, Civil Code, where an action is brought by an assignee or a creditor or creditors, who hold one-fourth of the liabilities of the assignor of an assigned estate, for the benefit of the creditors, generally, an order may be made enjoining all creditors from prosecuting actions against the assignee or to enforce liens upon the assigned estate, except in the suit for the settlement of the estate.</p> <p>2. Assignments for Benefit of Creditors — Receiver for Assigned Estate. — A receiver should not be appointed for the assigned estate of an assignor for the benefit of creditors, where the assignee is in the possession of the property, and there exists no valid reason why the assignee can not and will not faithfully preserve and administer the property, and perform the orders of the court with reference to same.-</p>

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

<p>Appeal from Muhlenburg’ Circuit Court.</p>

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

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

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

<p>1. Exceptions, Bill of — Signing—Authority of Judge. — Where the term of office of the regular judge who presided at the trial has expired, neither he nor his successor in office has authority to approve the hill of exceptions, except hy consent.</p> <p>2. Exceptions, Bill of — Signing—Authority of Judge — Consent.— Where a bill of exceptions is presented to plaintiffs’ counsel for examination and he does not object to its being signed by both the regular judge, who presided at the trial and his successor in office, or to an order by which the original bill and a carbon copy thereof, so approved, are filed and made a part of the record without being spread on the order book, but consents that the original of said bill may be sent with the record on appeal without being copied by the clerk, he thereby consents to the manner of approving the bill, and a motion to strike the bill will be denied.</p> <p>3. Parties — Real Parties in Interest. — Under Civil Code of Practice, section 18, requiring, with certain immaterial exceptions, every action to be prosecuted in the name of the real party in interest, the bailee of a horse destroyed by fire, who merely says that the bailor was looking to him for the price of the horse, has no such ' interest in the horse as will authorize a suit for damages in his name alone.</p> <p>4. Trial — Instructions—Prejudicial Error. — In an action by plaintiff against a railroad company to recover damages for the destruction of his barn and contents by fire, an instruction authorizing the jury to find as damages the value of the barn and the market value of the personal property, including the value of a horse in which plaintiff had no interest, but of which he was a mere bailee, is prejudicial error, _ where the jury does not separate its findings, but returns a verdict for a lump sum and the court is unable to say that damages for the horse were not included .in the amount of the verdict.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch No. 1).</p>

<p>1. Officers — Compensation—Fiscal Courts — Appeal and Error. — An officer may appeal from the order of the fiscal court fixing hia salary to the circuit court.</p> <p>2. Officers — Conpensation of County Judge — Fiscal Courts. — It is the duty of the fiscal court of each county, under section 1072 of Kentucky Statutes, to fix the salary of the county judge at a reasonable amount, but this does not give the fiscal court arbitrary power in fixing the amount of such salary, and its action in doing so may be reviewed by the courts, under proper proceedings for that purpose.</p> <p>3. Officers — Increase or Reduction of Compensation.- — After the salary of the county officer is fixed by the fiscal court it cannot be altered or changed during his term of office, although subsequently happening events may change the conditions so as to make his duties more burdensome, or render them lighter.</p> <p>4. Appeal and Error — Compensation of Officers. — Where, upon the trial of an appeal from an order of the fiscal court fixing the allowance of the county judge, about an i equal number of witnesses testified upon each side upon the issue as to the reasonableness or unreasonableness of the sum fixed, the finding of the circuit court upholding the order of the fiscal court cannot be said to be flagrantly against the evidence, nor that it is unsupported by the evidence.</p> <p>5. Appeal and Error — Argument of Counsel. — Improper argument of counsel, and misconduct of the jury complained of but not presented by a bill of exceptions cannot be considered on appeal.</p>

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

<p>1. Wills — Intention of Testator — Construction.—The cardinal rule in the construction of wills is to ascertain the intention of the testator as gathered from the entire instrument.</p> <p>2. Wills — Construction.—Where property is devised absolutely, with the power of unlimited disposition, and by a subsequent pa/t of the will the testator undertakes to devise over an undisposed of remainder of the property, the limitation over is void; but, where a life estate only is devised, with power of disposition, then the limitation over of such of the devised property as should remain undisposed of at the death of the life tenant, is valid.</p> <p>3. Wills — Construction.—Where a testator devised to his wife all of his estate except certain designated partnership property, and by a subsequent clause directed that his wife should have all of the estate as long as she remained his widow, and at her death two-thirds of his estate should go to his heirs, giving his wife the right to handle the remaining one-third and do with it as she pleased, and further giving her the power to act and to sell any property as she might think best, the wife took a life estate in the testator’s entire estate, with power to dispose of one-third thereof by will, and with the further power to sell any portion of the estate and reinvest the proceeds during her • lifetime.</p>

<p>1. Waters and Water Courses — Injuries by Flowage — Railroad Embankments. — If reasonable care and foresight have been exercised in constructing a railroad, the railroad company cannot be held liable because its structures have contributed to causing the overflow of riparian lands at a time of extraordinary and unprecedented floods; but if there was negligence in the construction of the bridge, embankment, or other work, which contributed to the injury, it is no defense that the flood was unexampled or overwhelming.</p> <p>2. Torts — Independent Wrongdoers — Liability. — If the separate wrongful acts of two or more persons acting independently, without concert, plan, or agreement, unite to cause injury to another, such persons are not joint wrongdoers within the meaning of the law, and each is liable to the injured party for only so much of the injury as is chargeable to his own separate individual act.</p> <p>3. Torts — Independent Wrongdoers. — The fact that it may be difficult' to actually measure the damage caused by the wrongful act of each contributor to the aggregate result, does not affect the rule that if the persons who maintain a nuisance act independently and not in concert with others each is liable for damages which result from his individual conduct onlj, and does not make any one liable for the acts of the others.</p>

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

<p>1. Corporations — Contracts—Intrastate Commerce. — A foreign corporation can not enforce a contract, arising from a transaction in intrastate commerce, witb a citizen of this state, where the corporation has failed to comply with the requirements of section 571, Kentucky Statutes.</p> <p>2. Corporations — Intrastate Contract. — A contract for the sale and delivery of goods, in this state, between a citizen of this state and a citizen of another state, where the goods are then in this state, and the entire transaction is completed in this state, and the title to the goods passes, is an intrastate transaction.</p>

<p>1. Nuisance — Direetion of a Thing hy Legislature. — Where the legislature directs or authorizes a particular thing to he done, the doing thereof can not he charged or complained of hy the Commonwealth as a nuisance, although apart from such authority it might constitute such an offense.</p> <p>2. Nuisance — Legislature May Render Lawful. — The legislature may, hy act, make that lawful which, at common law, constituted a common nuisance; or, may render that unlawful which was otherwise at common law.</p> <p>3. Nuisance — Criminal Prosecutions — Mines and Mining. — An indictment accusing a coal mining company of the offense of maintaining a common nuisance hy draining copperas and other poisonous waters from its mine into adjacent running streams, and alleging facts, which would, at common law, constitute the offense of maintaining a common nuisance, is had on demurrer in this jurisdiction, the statute providing “that the water so drained from such mines shall he drained as directly as practicable to the adjacent streams or water courses hy means of ditches, flumes, pipes, sewers or other adequate provisions.”</p>

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

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

<p>1. Mines and Minerals — Lease—Unavoidable Casualty — Construction. — Under a mining lease, providing for a minimum royalty of $2,000.00 per year, but further providing “that during strikes and other unavoidable casualties over which second parties have no control, then >no royalties are to become due and payable for the time the parties of the second part may close down their mines for said causes, except on coal actually mined and shipped,” etc., the lessees are not entitled to any deduction from the minimum royalty for shut downs caused by the breaking down of machinery or appliances, or by the installation of new machinery or appliances.</p> <p>2. Mines and Minerals — Lease—Unavoidable Casualty — Construction. — The failure or refusal of the railroad company to furnish cars for shipping coal is an unavoidable casualty, where it appears that the lessees used reasonable diligence to procure the cars.</p> <p>3. Mines and Minerals — Unavoidable Casualty — Pleading.—In an action to recover tbe minimum royalty under sucb a lease, a pleading that merely shows so many days’ delay because of “inability to get cars,” or “refusal of tbe railroad company to furnish cars,” is not sufficient. In order to show due diligence, the lessees should allege that they requested the cars in time to have enabled the railroad company, by the exercise of ordinary care, to furnish them when needed. ,</p> <p>4. Mines and Minerals — Lease—Unavoidable Casualty — Construction. —Bad market conditions, preventing the lessees from selling their coal, are not unavoidable casualties within the meaning of such a lease.</p>

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

<p>1. Wills — Intention of Testator — Construction.—A cardinal principle governing the construction of a provision of a will, requires the ascertainment of the intention of the testator, and this may be arrived at by a consideration of the entire instrument together with all the circumstances attendant upon its execution. .</p> <p>2. Wills — Construction.—A provision in a will that certain grandchildren of the testator should have a home on a given farm, so long as they remained unsettled in life, gave such grandchildren a right to a home on the farm only until they arrived at the age of maturity and have established new homes or places of abode elsewhere, and does not entitle such grandchildren to return to the farm and receive support after once, arriving at maturity and having acquired new homes and- formed new relations for themselves.</p> <p>3. Trusts — Management of Trust Estate — Remaindermen.—A trustee of an express trust, created by will, who is given full authority and control over the lands belonging to the trust estate, with power to take and apply the proceeds thus arising to certain uses, may, in the exercise of a reasonable discretion, lease or let the lands to a tenant, but if in such case the tenant in possession commit waste, the remainderman may maintain an action to prevent the same.</p>

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

<p>1. Schools and School Districts — School Funds — Action to Recover From Superintendent. — An action can not be maintained in the name of a county to recover money illegally appropriated by the Superintendent of Schools out of the school fund in the hands of the treasurer of the Board of Education of the county, but such actions may be instituted and prosecuted by either the Board of Education of the county, or in the name of a tax payer for the use and benefit of such Board of Education.</p> <p>2. Exceptions, Bill of — Time in Which May Be Tendered. — Where the trial court, at the instance of the appellant, allows time to a day certain in the next succeeding term of the court in which to prepare and tender “a bill of exceptions, and no bill is prepared or tendered within the time given, such bill will not be allowed or considered by this court even though filed at a subsequent day of the term to which such time was given.</p> <p>3. Appeal and' Error — Exceptions, Bill of — Striking Prom Record.— Where a bill of exceptions for any reason is stricken from the record in this court, the only question remaining is, do the pleadings support the judgment?</p> <p>4. Schools and School Districts — School Funds — Board of Education. —Under subsection 9, of section 4426a, Kentucky Statutes, a Board of Education of the county has no authority to appropriate money in the hands of its treasurer to pay expenses previously incurred by the county superintendent in the exercise of official duties.</p>

<p>Criminal Law — Appellate Jurisdiction. — The Court of Appeals does not have jurisdiction of an appeal from a judgment in a prosecution for a misdemeanor, where the judgment is for a fine, if the fine does not exceed fifty dollars.</p>

<p>1. Licenses — Verbal License to Use or Encumber Real Property — ■ Revocation of. — Where the owner of a building grants verbal permission, without consideration and unlimited as to time, to an adjacent owner to make a physical connection with his building, the owner of the building, after the licensee, on the faith of the permission, has expended money in making the contemplated improvement, will not be allowed to revoke the license to the injury of the licensee.</p> <p>2. Licenses — Verbal License to Use or Encumber Real Property — Revocation of. — But where the original licensee conveys the building that he has erected on the faith of a verbal license, or parts with real property on which he has expended money on the faith of a verbal license, the licensor, unless he has by act or conduct es-topped himself from so doing, may, as against the vendee of the licensee, revoke the license without having or giving any reason therefor, after reasonable notice to the vendee, and if the vendee, after such notice, refuses to remove the building or property, the licensor may do so himself.</p> <p>3. Licenses — Notice to Intended Purchaser Prom Licensor of Condition of Privilege — Effect of. — If an intended purchaser from a licensor should find connected with a building he was about to purchase another building not covered by the title of his vendor, or should find on the premises he was about to buy some encumbrance that did not belong to his vendor, and should complete his purchase without making inquiry, he would not be in any better position than his vendor, or permitted to do anything that his vendor could not do.</p> <p>Licenses — Notice to Purchaser Prom Licensee of Condition of Encumbrance on Property of Another. — Where the purchaser from the licensee has information sufficient to put a person of ordinary prudence on notice that his vendor is selling him something not covered by his title, and he fails to make such inquiry as would put him in possession of the facts necessary to enable him to protect his rights before making the purchase, the licensor will not be estopped to revoke as against him the license, unless he does something to mislead or deceive him.</p> <p>5. Notice — When Sufficient to Put Purchaser of Real Property on Inquiry. — If a purchaser dealing with property, the record title of which appears to be complete, has information of extraneous facts sufficient to put him on inquiry respecting some outstanding interest, claim or right, and he omits to make' proper inquiry, he will be charged with constructive notice of all the facts which he might have learned by means of reasonable inquiry.</p>

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

<p>1. Carriers — Jurisdiction and Venue — Initial Carrier. — The provisions of the act of Congress known as the Carmack Amendment to the Interstate Commerce Law providing that the initial carrier of freight shall issue a bill of lading to the consignee and be liable to him for any damage which might accrue because of failure to comply with the contract of shipment has the effect to force such initial carrier to obligate itself to deliver the shipment at the point of its destination, and the courts at that place having jurisdiction of the subject matter have venue jurisdiction of suits brought by the consignee to recover damages for a failure to comply with the contract, and a summons issued by such courts against the initial carrier may be served anywhere in the State upon its agent or person designated for that purpose, as is prescribed by statute regulating the subject.</p> <p>2. Carriers — Jurisdiction and Venue. — Shipments were made from Indianapolis to points in Bath and Montgomery counties, and the initial.carrier that issued the bill of lading had no lines running into either of those counties but had an, agent in Jefferson county. Held, that by issuing the bill of lading it agreed to deliver the ship: ments in those counties at the respective points of destination and .. that suits could be properly brought in those counties against it for a failure to comply with the contract, and summons properly served on its agent in Jefferson county.</p>

<p>1. Waters and Water Courses — Obstruction—Deflection—Injunction.—* Where plaintiff, in an injunctive action for removal of an obstruction constructed upon defendant’s land, which so deflects the current of a stream flowing between as to cause it to overflow the former’s land, shows that such obstruction greatly increases the volume and frequency of the overflows, thereby damaging plaintiff’s land, injunction will lie to compel the removal of the obstruction, unless upon the facts such relief would be inequitable.</p> <p>2. Waters and Water Courses — Obstructions.'—In this case, testimony - introduced by defendant showing that before the construction of the obstruction plaintiff’s land had washed to some extent, does not, in the least, combat the proof that the obstruction increases the volume and force of the waters cast thereby upon plaintiff’s land.</p> <p>3. Waters and Water Courses — Limitation of Action. — The judgment in this case only allowing damages for the time plaintiffs had owned the land, which was less than one year, the claim was not barred by the statute of limitation, since a new cause of action accrued for damages done by each overflow, and the statute of limitations only applied to bar a recovery for more than five years before the bringing of the action.</p> <p>4. Waters and Water Courses — Obstructions—Damages—Estoppel.—■ Where defendant pleads acquiescence of the former riparian owner to the building of an obstruction which apparently did no damage during the period of the former owner’s holding, but which is proved to be now destructive and damaging, as an estoppel against plaintiffs, suing for damages done by and removal of such obstruction; while it is, of course, true that one, by laches, may lose his right to injunctive relief by standing by and seeing the party complained of expending large sums of money in improving his own land which will result in injury to complainant’s land, the plea of estoppel will not prevail here because it appears from the evidence and the court’s judgment that the cost of removing the obstruction will be small in comparison with the damage that will result to plaintiffs if the obstruction is allowed to remain.</p>