Volume 176 — Kentucky Reports

<p>1. Commerce — Interstate Commerce — Intoxicating Liquors. — Where a brewery in Cincinnati, Ohio, sold to a licensed saloonkeeper in Kentucky beer on orders received through the post office, and delivered the beer to the saloon-keeper in its own wagons, the transaction was interstate commerce and the brewery not subject to a municipal tax for selling .or delivering.</p> <p>2. Commerce — Interstate Commerce — What Is. — To constitute interstate commerce property must be sold in one state to be sent into another state pursuant to the sale, and it is not material what kind of a vehicle is used for the transportation of the goods, or whether they are sent by a, common carrier or' delivered in wagons owned by the seller.</p>

<p>1. Master and Servant — Asumption of Risk — Employers’ Liability Act. — The defense of assumed risk is available to the defendant in suits brought under the Employers’ Liability Act, except where the injury is the result of the failure to observe some federal statute enacted for the safety of employees.</p> <p>2. Master and Servant — Assumption of Risk. — Where an experienced person is placed in charge of a- piece of machinery, he being an expert in that line of work, and over which he is given exclusive control, and whose duty it is to keep such machinery in repair, cannot complain of the master if the machinery gets out of repair and in that condition the servant continues to operate or try to operate it; and if while doing so he is injured, it is the result of a risk which he assumed.</p> <p>3. Master and Servant — Unsafe Way to Do Work. — Where there is a safe way and an unsafe way to do the work, and the servant chooses the unsafe way, he assumes the risk of an injury which might happen to him,</p> <p>4. Master and Servant — Assumption of Risk. — Where an experienced engineer had charge of a stationary gasoline engine which could be safely started by the use of the pump with which, he was supplied, but could be more quickly started by rocking the wheel of the engine, a method which plaintiff had been adopting sufficiently long to become acquainted with it, and he chose that method of starting the engine which resulted in the injuries for which he sues, he must be charged with having assumed the risk, and for which the master is not liable.</p>

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

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

<p>Mandamus — Municipal Corporations — Granting of Franchise— Telegraphs .and Telephones. — Since the granting of a franchise is a legislative act, to be exercised or not as the legislative body may determine, mandamus will not lie to compel the mayor and members of the board of council of a city to offer a telephone franchise for sale.</p>

<p>Telegraphs and Telephones — Change in Telephone Rates — Injunction. — Where a telephone -company does not acquire a valid franchise from the city, but enters upon its streets and establishes a telephone exchange under and by virtue of a contract, by which it agrees to render telephone service at- a -rate not exceeding $1.00 per month, an injunction will lie at the instance of the citizens of the city and patrons of the company to compel it to 'maintain the contract rates so long as it -continues to occupy the streets of the city and operate the exchange, although the -city may revoke the license and the company itself may withdraw from the city and abandon the service at any time upon reasonable notice.</p>

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

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

<p>1. Bankruptcy — Sale of Land Free from Lien — Notice to Lienholder —Waiver.—A lien creditor waives his right in a bankruptcy (proceeding to object to a sale of the bankrupt’s land, free from any and all liens, on account of a lack of notice, where, after objecting to the sale, he withdraws his objections, and he and his attorney attend the sale and the sale is then confirmed without objection.</p> <p>2. Bankruptcy — Judgment of Sale — Conclusiveness—Collateral Attack. — A lienholder who has waived his right to object to the sale of the bankrupt’s real estate, free from liens and encumbrances, is concluded by the judgment of sale and cannot, in a collateral proceeding, enforce his lien on the ground that the sale was void as to him.</p> <p>3. Vendor and Purchaser — Purchase Money Lien — Failure to State Consideration Remaining Unpaid — Effect.—As betwen the vendor and vendee, the vendor, in the absence of an agreement to ■ the ontrary, has a lien for the unpaid portion of the purchase money, although it does not appear from the deed that any part thereof remains unpaid.</p> <p>4. Bankruptcy — Setting Aside of Homestead — Discharge—Effect on Contract Liens. — Neither the setting aside of a homestead to a bankrupt nor his subsequent discharge relieves the property fr.om the operation of a mortgage or vendor’s lien thereon obtained before the bankruptcy.</p> <p>5. Homestead — Right To' As Against Purchase Money Lien. — A purchaser of a house and lot is not entitled to a homestead therein as against a lien note given for the purchase money.</p> <p>B. Vendor and Purchaser — Liens—Superiority.—Grace and Phelps exchanged a house and lot for a farm owned by Nat L. Miller, retaining a lien on the house and lot for $1,000.00. Nat L. Miller then agreed to exchange the house and lot for a farm belonging to T. A. Miller, the latter assuming the $1,000.00 lien on the house and lot. T. A. Miller then sold the house and lot to W. W. Berry; who agreed to assume the payment of the $1,000.00 lien In favor of Grace and Phelps and to execute his note for $1,000.00, the balance of the purchase price. To save the expense of recording the numerous transfers, Grace and Phelps conveyed the house and lot to W. W. Berry, retaining a lien thereon to secure two notes for $500.00 each, which Berry executed in lieu of the original lien in favor of the gTantors, which both he and T. A. Miller had agreed to assume. Berry then executed a $1,000.00 note to T. A. Miller, but this note was not secured by lien or mentioned in the deed: Held, that the lien ' of Miller, and, therefore, of his assignee, was inferior to that of Grace and Phelps.</p>

<p>1. Statutes — Doubtful Meaning — Rules of Construction. — The rule that no canon of interpretation which requires that the letter of a statute should be followed when by so 'doing an unreasonable result is accomplished, has no application to a case where a statute is not of doubtful meaning, and needs no unusual or technical rule of construction to ascertain its purpose.</p> <p>2. Statutes — Intention—Construction.—The intention of the legislature is the intention as expressed in the statute; it is only when the language of a statute is of doubtful meaning, or where the adherence to the letter of it would lead to an absurdity, injustice, or to contradictory provisions, that a search must be made for the true meaning by the courts.</p> <p>3. Charities — Cy Pres Doctrine. — The cy pres doctrine as a judicial doctrine, has never been in force in Kentucky.</p> <p>4. Charities — Cy Pres Doctrine. — The ministerial power of the English chancellor, by which he exercised the King’s prerogative power as parens patriae, to control and carry into effect the gifts to charity in general, without any specific purpose being indicated, by applying the cy pres doctrine, does not exist in any American magistrate, judicial or ministerial, and can never exist until it is conferred by the legislature.</p> <p>5. Statutes — Religious Societies — Society of Shakers. — Section 323 of the Kentucky Statutes, which provides that the lands of any dissolved society shall go to the public schools of the county, does not apply to the Society of Shakers.</p>

<p>1. Remainders — Action to Recover Land — Estoppel.—Where, in consideration of a conveyance in fee simple of another tract, a woman having a life estate in land, with remainder to her children, conveys such land by deed of general warranty to her grantor, a suit by the remaindermen, upon their mother’s death, to recover the land, together with the market value of the timber cut and removed therefrom, is not a suit for rescission; and the fact that they are unable to restore to their mother’s grantor the land conveyed to, and inherited by them from, their mother, will not estop them from recovering the land conveyed- by their mother and to which they have title in remainder.</p> <p>2. Remainders — Conveyance by Life Tenant — Warranty—Liability of Remaindermen on Life Tenant’s Warranty. — Where, upon the death of the life tenant, who has conveyed the land in fee simple by deed of general warranty, her children, who are the remainder-men, bring suit to recover the land so conveyed, together with the market value of the timber cut and removed therefrom, they are liable on their mother’s warranty to her grantee to the extent of the market value of land at the time of her death which they inherited from her.</p> <p>3. Remainders — Conveyance by Life Tenant — Warranty—Liability of Remaindermen on Life Tenant’s Warranty — Set Off. — In such a case, the market value of timber cut and removed by the purchaser from the life tenant cannot be offset against the value of the use of a mill located on the land inherited by the remainder-men from their mother, where the mill has been taken into consideration in fixing the market value of the land so inherited.</p> <p>4. Waste — Purchaser Prom Life Tenant — Liability to Remaindermen. —In such a case, where the deed to the life tenant and remainder-men provides that it is not to take effect until after the death of the grantor and his wife, a claim for timber cut and removed by the purchaser from the life tenant prior to the death of the original grantor and his wife, is due such original grantor and wife, and the purchaser from the life tenant is not liable therefor to the remaindermen.</p> <p>5. Remainders — Action to Recover Land — Set Off. — Where, in such an action, the market value of the timber cut and removed by the purchaser is equal to the market value of the land which the remaindermen inherited from their mother, and for which they are responsible on their mother’s warranty, the two claims should be offset against each other and plaintiffs given judgment for the land.</p>

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

<p>Executors and Administrators — Abatement and Revival — Dismissal. — Where, in a suit to recover damages for the cutting oí timber on lands alleged to be owned by the plaintiff, one of the defendants died before a trial of the case, making his wife executrix and sole devisee of his will and she qualified and acted in such capacity until her marriage more than eighteen months later; the filing by the plaintiff before the executrix’s marriage, and within a year of her qualification, of a supplemental petition for a revivor of the action against her as executrix, upon which the executrix was summoned, in the absence of the entering of an order of revivor, did not have the effect to revive the action against her as executrix. And, even if such order of revivor had been made, as the subsequent marriage of the executrix ended her power as such and terminated the trust, the fact that no order of revivor was made after such marriage, either against the personal or real representatives of the testator, of itself authorized the dismissal of the action. Hence, the judgment of the circuit court dismissing the action as to the estate of the deceased de< fendant was not error.</p>

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

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

<p>1. Husband and Wife — Contract of Endorsement — Performance.—: 'Where a married woman endorses in this state as surety her husband’s note, which is made payable in another state where it is delivered by the husband, the contract is both made and to be performed in the other state and its validity will be determined by the laws of that state.</p> <p>2. Husband and Wife^-Contract of Endorsement. — Such a note being valid against the married woman by the laws of the state, where made and to be performed, will be enforced against her here, although the note would not have been enforceable against her if made here.</p>

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

<p>Wills — Construction of — Separate Estate — Fee Simple. — Where a testator devised one-third of his estate to his wife absolutely and the other two-thirds to his two children, with the direction that the estate devised to his children should be held in trust for his son until he reached the age of twenty-one and that devised to his daughter should be held as her separate estate for her support and maintenance as long as she lived, free from the control, contracts or debts of any husband alie might have, the daughter took a fee simple title in her share of the estate when she reached the age of twenty-one. There was no devise over, and the only purpose of the testator was to save the estate of his daughter free from the control, contracts or debts of her husband.</p>

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

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

<p>Master and Servant — Contributory Negligence of Servant Bars Right of Recovery. — Where an experienced, capable engineer and craneman was' killed when the crane that he was operating turned over, and the evidence shows that the crane was caused to topple over by the failure of the operator to request the services of an assistant furnished by the master, the administratrix of the craneman cannot recover damages from the master.</p>

<p>1. Municipal Corporations — Ordinances—Validity.—The Validity oir invalidity of city ordinances may be tried by an'ex parte proceeding, as provided by section 3063 of the Kentucky statutes, but this method of proceeding cannot be employed to test the validity of acts done- under an ordinance such as the validity of the ordering of an election, the issuing of bonds, &c.</p> <p>2. Municipal Corporations — Ordinances.—In the ex parte proceeding provided by that section of the statute only such questions may be presented as pertain to the subject matter of the ordi- . nance and the legality of its passage and publication.</p> <p>3. Municipal Corporations — Issue of Bonds — Ordinance Providing Election. — Where an election- was held- for the purpose of issuing bonds to fund an indebtedness of the city, which election was in pursuance of. an ordinance previously passed calling it and at which the creation of the indebtedness was authorized by the legal number of votes, and another ordinance was passed directing the issuing of bonds and the levying of taxes to meet their payment, the validity of the bonds, including the validity of the election authorizing their issue, may not be tried or tested by the ex parte proceeding, but must be done in a proceeding between proper parties.</p>

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

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

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

<p>>1'. Highways — Appeal and Error — Injunction. — In a civil action, brought by certain citizens of a county seeking to enjoin the county judge from trying them, and the county attorney, and overseer of a public road, from prosecuting them, for failing to work such road, the fact that the statutory penalty for such failure, should conviction result, would be a fine less in amount than would permit an appeal to the circuit court, or from that court to the Court of Appeals, did not authorize the granting, by the circuit court, of the injunction prayed.</p> <p>2. Injunction — Criminal Proceeding. — An injunction will not lie to restrain a criminal prosecution except where property rights are involved and it is made to appear that a multiplicity of suits and irreparable injury will follow, unless the prosecution is enjoined. Nor will the fact that the validity or construction of a statute is involved, of itself, authorize the granting of an injunction.</p> <p>3. Appeal and Error — Injunction.-—An appeal from the judgment of a circuit court granting an injunction, if no judgment for money or personal property he sought, and the only relief sought is afforded by the injunction granted, may he taken to the Court of Appeals.</p>

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

<p>1. Infants — Judgment.-—-Where real estate left by a decedent is sold under judgment of a court, subject to the widow’s right of homestead therein, to pay the debts of the decedent and one of the decedent’s children then an infant, though a defendant to the action, was not served with process, the judgment and sale were void as to him, and were properly so held by the circuit court, in an action subsequently brought by him to recover his interest in the land.</p> <p>2. Infants — Judgment.—But .another child of the decedent who, though an infant at the time of the institution of the action and when the judgment was -rendered under which the land was sold, was duly served with summons, but for whom a guardian ad litem was not appointed or report by such guardian made, was not entitled, in a subsequent action brought by her to recover her alleged interest in the land, to collaterally attack the judgment in the first action. Such judgment was not void as to her, but only voidable, and the only remedy available to her for setting it aside was an appeal to the Court of Appeals which was not taken.</p>

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

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

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

<p>1. Divorce — Appeal and Error. — A judgment in a divorce case giving tie custody of two infant sons to parents jointly, tie mother to have them one month and the father the next, will he reversed, because such an arrangement does not provide a fixed home for the children; and to keep them on the move is greatly to their detriment.</p> <p>2. Divorce — Custody of Children. — Courts in equity will always care- - fully guard the interest of infant children, and will place their custody in divorce cases, with the parent best situated to provide them with the best surroundings.</p> <p>3. Divorce — Alimony—Proceeds of Insurance Policy — Liens.—Where the husband is the beneficiary of a policy of life insurance, and after marriage the wife, at his instance, is made the beneficiary, and the money on the policy is collected and invested in lands, the title to which is taken in the wife, the husband' having paid the premiums on the policy, in divorce proceedings the land should be adjudged to the husband, and alimony allowed the wife and adjudged a lien upon the lands.</p>

<p>I. Criminal Law — Highways—Construction and Improvement — Fraudulent Statement of Engineer. — Under sections 1207 and 4333, Kentucky Statutes, the road engineer, who makes a false and fraudulent statement of the claim of a sub-contractor, or any other person,-who makes a claim against the county, for the improvement of the roads, with the fraudulent intent to enable such sub-contractor or other person to obtain money from the county, to which he is not entitled, incurs the penalty prescribed by section 12C7, supra.</p> <p>2. Criminal Law — Highways—Change in Location — Statement of Engineer. — Although the county court is the only authority authorized by law to change the location of a public highway from its established place, and the fiscal court is not authorized to expend the public funds upon a road, other than a lawfully established public highway; where the fiscal court authorizes by a contract the construction of a road, and the road engineer, in good faith and in the honest belief that he is in the performance of his duties, does not commit a criminal offense in stating and certifying, what he, in good faith, believes is due the contractor, under the contract which the fiscal court has made.</p>

<p>1. Witnesses — Competency—Transaction With Decedent — Joint Interest. — Under 6ivil Code of Practice, section 606, -subsection 2, disqualifying one to testify for himself concerning verbal statements of, or transactions with, or acts done by, deceased, one of two joint grantees of deceased cannot testify for himself or for the other as to the delivery of the deed.</p> <p>2. Witnesses — Competency—Transaction With Decedent — Several Interest. — Under Civil Code of Practice, section 606, subsection 2, disqualifying one to testify for himself concerning verbal statements ,of,- or transactions with, or acts done by, deceased, grantees in separate deeds may testify for each other as to the delivery oí the deeds in which they have no interest.</p>

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

<p>1. Judicial Sales — Jurisdiction—Land of Non-resident. — -Where there is no service, no appearance, no attachment, and no lien by contract, judgment or otherwise, a court is without jurisdiction 'to sell the real estate of a non-resident, and the judgment of sale is void and passes no title to the purchaser or his vendee.</p> <p>2. Ejectment — Defense of Superior Title — Estoppel.—Where, in an action of ejectment or to quiet title, hoth the plaintiff and defendant claim through a common source, defendant cannot defeat a recovery by plaintiff by proof of a superior outstanding title with which defendant shows no privity or connection.</p>

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

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

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

<p>1. Schools and School Districts — Statutory Provisions. — Section 3588a of the Statutes, construed and held to authorize a city of the fourth class having heretofore established graded schools under its charter, to change the system of management of such schools to the general graded school system provided for under sections 4464-450 Ob of Kentucky Statutes.</p> <p>2. Schools and School Districts — Ordinances.—That the change in the . system of control of such schools so 'authorized is effected by the city council by ordinance without an election.</p> <p>3. Statutes — Constitutional Law.- — That section 3588a of the Statutes is not in contravention of section 51 or 242 of the Constitution.</p> <p>4. Schools and School Districts — Statutes.-—That section 4464a of the Statutes is not applicable when such a change is attempted even though the city lies partly within two counties.</p> <p>5. Schools and School Districts — Ordinances.—An ordinance of the . city council making the change is not void because it does not follow the language of the statute in the manner of ord’aining the change, if it substantially follows and complies with the statute under the circumstances prevailing in the city.</p> <p>6. Schools and School Districts — Bonds.—De facto trustees of a graded school with color of title will not be enjoined, at the suit of citizens and taxpayers, from issuing and selling bonds under an election held pursuant to law for the maintenance of the schools and to erect necessary -school buildings.</p>

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

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

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

<p>1. Railroads — Construction—Injunction—The construction of a railroad will not be enjoined to prevent an interference with the rights of lot owners, in a platted subdivision outside a city, to the use of streets and alleys shown upon the recorded pl'at and set apart for such use in the deeds and title bonds under which the lot owners hold title to their lots and in the deed to the railroad company for its right of way.</p> <p>2. Railroads — Contracts as to Streets and Alleys — Purchasers— Rescission. — But where the railroad company or its agents or trustees also hold every beneficial interest of the seller in and under the executory contracts of the purchasers, of such lots a rescission and restoration will he granted to the purchasers when the railroad company has violated the provisions of such contracts with reference to the streets and alleys.</p> <p>3. Appeal and Error — Damages—Rescission.—A purchaser under such an executory contract who, after a denial of his application for a ■ rescission and an award of damages, accepts payment from the railroad company of the damages awarded can no longer insist upon a rescission; hut he may, under section 757 of the Civil Code, prosecute an appeal from so much of the judgment as fixed the amount of the damages sustained.</p> <p>4. Appeal and Error — Error in Instructions. — Cured by Judgment.— The error in an instruction authorizing damages to he awarded to the lot owner in whatever amount the jury believed from the evidence he had sustained or a verdict for the railroad company, if no damages were sustained, was cured by the judgment of the court awarding him nominal damages, ,to which he was entitled in any event, where the jury found for the defendant.</p>

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

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

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

<p>1. Husband and Wife — Creditors—Rent.—Where a husband and wife own land jointly and the wife had sold from it and collected and appropriated to her own use portions of it to the value of $2,350.00, and the husband had.appropriated from such sales $600.00, leaving 100 acres unsold, a creditor of the husband is entitled to have an accounting made between husband and wife and to appropriate to his debt that part of the remaining 100 acres, or its proceéds, which would be coming to the husband under a settlement between himself and wife, after charging each with the amount which they had respectively collected, and in such case the husband should not be charged with rents if they weré used jointly by himself and wife in the maintenance and support of their family.</p> <p>2. Husband and Wife — Joint Owners — Sale of Land at Instance of Creditor. — Where it is necessary to ascertain tbe proportion which two joint owners should share in the proceeds' of land, that its value as realized upon a sale must be taken into consideration in adjusting the accounts, and further shown that one of the parties .would be entitled to at least one-half of such proceeds before the other would be entitled to share in any part of it, the court did not err in ordering the entire tract of land sold at the instance of a creditor of one of the joint owners, as under the circumstances it is apparent that it could not be divided without materially impairing its value so as to give to the joint owner whose interest is hot sought to be subjected his proportionate share.</p>

<p>Animals — Contributory Negligence. — Where a boy ten years old -was injured by a pet bear, it was proper to instruct the jury on the subject of the contributory negligence of the boy, which consisted in his conduct in teasing and.annoying the bear by prodding and striking him with 'a stick.</p>

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

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

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

<p>1. False Pretenses — What Necessary to Constitute Crime. — To constitute the crime oí obtaining money by false pretenses, the following essentials must appear: (1) A false pretense; (2) The false pretense must be made by the defendant or by some one whom he had induced to m'ake it; (3) The defendant must have had knowledge of the falsity of the pretense, statement or token, when he made it; (4) The person defrauded must have relied upon the pretense and been induced to thereby part with his money; (5) The money must have been obtained by the defendant or by some one in his behalf; (6) The defendant must have had an intent to defraud; (7) An actu'al defrauding must have resulted,</p> <p>2. False Pretenses — What Necessary to Constitute Crime. — To constitute the crime of obtaining money or property by false pretenses, an actual defrauding must take place, but it is not necessary that an actual pecuniary loss be suffered, or that it will necessarily be suffered, but it is sufficient, if the defrauded party be placed by the false pretense of the accused, in such a position, that he may eventually suffer loss.</p> <p>8. False Pretenses — Knowledge of One Parting With Money. — As between individuals, if the party who parts with the money knew the falsity of the pretense, he was not deceived thereby, and did not rely thereon, and hence the crime is not committeed, but, when ■money is obtained from a municipality by a false pretense, the fact that one or more of the officials, who have custody of the funds, and pay them out, knew the falsity of the pretense, will not relieve the accused of his part in the fraud, because he was assisted by the fraud or connivance of the officials.</p> <p>4. False Pretenses — Indictment and Information. — Where an indictment charges the obtaining o'f money by false pretenses from- a county, the fact that the county court, by reason of the false pretense, made an order directing the treasurer to pay the money, which he did, does not constitute a fatal variance between the allegations and proof, as the accused received the money and the order of the county court was, only, the means through which the county paid the money to him.</p> <p>5. Criminal Law — Presumption of Knowledge of the Law. — While every one is presumed to know the law, as to criminal offenses, as well as civil liabilities, where a specific intent is necessary to constitute a criminal offense, the want, of knowledge upon the part of the accused, that his action was contrary to law negatives the idea that he had the specific criminal intent necessary to constitute the crime.</p> <p>6. False Pretenses — Intent—Element of Offense. — To be guilty of obtaining money by false pretenses, a specific intent-to defraud is necessary.</p>

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

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

<p>1. Burglary — Possession of Burglars’ Tools — Indictment and Information. — Where an indictment under section 1159, Kentucky Statutes, for having in possession tools, implements or other things used by burglars for housebreakirig, forcing doors, windows, locks and buildings and other places where goods, wares, merchandise or money are kept, charges “the said Polly Pell was using said store house at the time for the purpose of storing and keeping goods, wares, merchandise and money,” it was equivalent to a charge that the building was a store house in which' goods, wares, merchandise and money were stored and kept at the time, and a demurrer to the indictment was properly overruled.</p> <p>2. Burglary — Possession of Burglars’ Tools — Peremptory Instruction. — In a ease where one is indicted for having burglar’s tools in his possession with burglarious intent, and it appears that he had in his possession and was attempting to use a skelton key to enter a saloon with burglarious intent, the court properly overruled his motion for a peremptory instruction, because a skelton key is such a tool or implement as is contemplated by section 1159, Kentucky Statute. "</p> <p>3. Criminal Law — Plea of Former Conviction — Evidence.—The Commonwealth may plead the fchmer conviction of a defendant in a felony case, under section 1130, Kentucky Statutes, and in a case where the defendant has sustained three previous convictions for felonies and admits the fact, it is unnecessary for the Commonwealth to introduce evidence upon this point, and the' jury is warranted in finding him to be an habitual criminal.</p>

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

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

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

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

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

<p>1. Contracts — Fraud—Evidence.—To obtain relief on account of fraud or misrepresentation alleged to have been used to induce a trade, the complainant may not wait an unreasonable length of time before instituting an action, nor will relief be granted where the fraud has been ratified or condoned by the acquiescence and acceptance of the benefits of the trade by complainant.</p> <p>2. Contracts — Fraud—Evidence.—It never becomes the duty .of a chancellor to make a new bargain for the contracting parties. The only duty being to construe and enforce contracts, unless it appear from the evidence that advantage has been taken by reason of a confidential or fiduciary relation existing between the parties, or by fraud,, or misrepresentation in cases where the parties deal at arms’ length and are sui juris.</p>

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

<p>1. Railroads — Operation of Trains — Traveler—Care Required. — A person using the tracks of a railroad company in an incorporated town at a place where the presence of persons on the track should he anticipated by the company- was not a trespasser, hut a licensee, to whom the company owed the duty of keeping a lookout, of running its train at a reasonable rate of speed, of giving timely warning of its approach and of using ordinary care to avoid injuring him. On the other hand, such person was under the duty to use ordinary care to learn of the approach of the train and'to keep out of its way.</p> <p>2. Railroads — Accident on Tracks — Cafe Required of Persons Entering Tracks — Drunkenness.—Though drunkenness is not con-. tributo'ry negligence as a matter of law, yet a drunken person must exercise for his own safety the same degree of care that an ordinarily prudent person, if sober, would exercise under like or similar circumstances.</p> <p>3. Railro'ads — Injuries to Persons on Tracks — Intoxication of Traveler — Contributory Negligence. — The failure of a traveler along railroad tracks to heed signals of the approach of the train, which were sufficient to apprise an ordinarily prudent person, if sober, of its approach, is contributory negligence as a matter of law.</p> <p>4. Railroads — Injuries to Persons on Tracks — Contributory Negligence — Effect When Lookout Duty is Owing. — Where a railroad company owes to a traveler on its tracks a lookout duty, the contributory negligence of the traveler will not defeat a recovery, where, notwithstanding such contributory negligence, the railroad company failed to use ordinary, care to avoid injuring him after his peril was discovered, or could have been discovered by the exercise of ordinary care.</p> <p>5. Railroads — Injuries to Persons on Tracks — Negligence—Evidence —Sufficiency.—In an action against a railroad company for tlie death, of a person struck by one of its trains, evidence that the company failed to use ordinary care to avoid injuring the decedent after his peril was discovered, or could have been discovered by the exercise of ordinary care, examined, and held to make a question for the jury.</p>

<p>1. Judgment — Nunc Pro Tunc Order. — The general rule is that when an order or direction of the court has been omitted by inadvertence or mistake on the part of the judge or clerk and there is record evidence showing that all the steps necessary to have the omitted order or direction entered were duly made and taken, and by a reference to this record the court without any other evidence can see what judgment or order was intended to be entered, it may from this record evidence enter as of the date when it should have been entered a nunc pro tunc order.</p> <p>2. Wills — Nunc Pro Tunc Order Directing Probate. — Where the records of the county court fail to show an order of the court directing the probate of a will, but the will itself is recorded in the county court clerk’s, office, and a certificate of the clerk is attached to it and recorded, and in which certificate it is recited that the order and judgment of probate was duly rendered . after evidence heard, and which evidence the clerk recites to be that of the subscribing witnesses, such certificate of the clerk furnishes sufficient record evidence of what occurred to authorize at a subsequent circuit court the entry of the nunc pro tuno order directing the probation of such will.</p> <p>3. Judgment — Nunc Pro Tunc Order — Limitation.—As long as the necessary record evidence exists, nunc pro tuno entries may be made under proper application unaffected by any limitation barring such proceedings.</p>

<p>1. Deeds — Evidence—Burden of Proof. — A deed between an aged and infirm person and one who has him in, charge, and between whom there exists confidential relations, will be closely scrutinized, and the burden is upon the vendee to show the complete fairness of the transaction and that the deed was obtained without any improper methods or inequitable incidents, and was the free and voluntary act of the vendor. But this rule does not apply with the same rigor to- transactions which are testamentary in their character, and which convey no present interest to the vendee but whose interest is postponed until the death - of the vendor.</p> <p>2. Appeal and Error — Conveyances—Finding of Chancellor. — The findings of a chancellor upon issues of fact will not be disturbed on appeal in cases where there exists only a doubt as to the truth of the matter, but if such findings are against the weight or the. preponderance of the evidence, and is clearly contrary thereto, they will be reversed by this court. Evidence examined in this case and found that the conveyances which are attacked because of a want of mental capacity and of undue infiuence exercised over the vendor by the vendees are not invalid for either of those reasons and they are therefore upheld.</p> <p>^ 3. Deeds — Undue Influence. — Undue influence in law is such as dethrones the understanding and substitutes the will of another for that of the one influenced so as to constrain him to do that which he would not do otherwise; but any reasonable influence obtained by acts of kindness or appeals to the understanding but not destroying free agency so as to compel him to do against his will that which he would otherwise refuse to do is not in law undue influence.</p> <p>4. Deeds — Undue Influence — Burden of Proof. — Deeds executed under circumstances mentioned in the first subdivision above must be supported by clear proof, and the burden is upon the vendee to show conditions-justifying the court in upholding them; but although ■ there may be error in the trial court upon the question of the burden of proof, still if this court is convinced from the entire record that the judgment is correct, it will not ‘be reversed for such error.</p> <p>5. Appeal and Error — Jurisdiction—Adding Amounts of Judgments. — Where judgments are severable and rendered in separate suits which were consolidated with each other, and they, or some of them, involve amounts insufficient to give this court appellate jurisdiction, the amounts involved in each ,of them cannot be added together so as to make the total sum sufficient for appeal, and the appeal from those having insufficient amounts will be dismissed. <■</p>

<p>1. Criminal Law — Verdict of Jury Arrived at by Lot. — Section 271 <rf the Criminal Code provides that if a verdict has been decided by lot, the court may grant a new trial, if the verdict is prejudicial to the substantial rights of the defendant. Verdicts by lot are not approved, but unless a verdict so found is prejudicial to the substantial rights of the defendant, it will not be reversible error.</p> <p>2. Criminal Law — Verdict of Jury Arrived at by Lot. — Where the jury, after all agreeing that the defendant was guilty, further agreed that each should set down on paper the sentence, and that the sum of the numbers should be divided by twelve, and the quotient be returned as the verdict, and after the quotient was ascertained each juror individually voted that to be his verdict, the manner of making the verdict was not prejudicial to the substantial rights of the accused.</p> <p>3. Criminal Law — Incompetent Evidence Must Be Prejudicial to Substantial Rights of Accused to be Reversible Error. — On the trial of a defendant charged with the crime- of mayhem, committed by castrating a person charged with intimacy with his wife, the admission of evidence for the Commonwealth, tending to show that an undue intimacy existed between the defendant and another woman, was incompetent, but not prejudicial.</p> <p>4. Criminal Law — Evidence of Other Offenses Incompetent. — It is " not proper to inquire of a defendant concerning other offenses committed by him, unless it is necessary to establish identity, or guilty knowledge, or intent or motive for the crime, or unless they be'so interwoven with it as that it cannot be separated from them, or the independent offense was perpetrated to conceal the crime.</p> <p>5. Criminal Law — Judgments Will Not Be Reversed Eor Error Unless It Prejudices the Substantial Rights of the Accused. — ■ Under section 340' of the Criminal Code this court will not reverse judgments in criminal cases for error of any kind unless it appears to this court after examining1 the record that the alleged error was prejudicial to the substantial rights of the accused.</p> <p>6. Criminal Law — Insanity—Evidence That Accused Had Information Prior to Killing of Infidelity of Wife. — On the trial of an accused for homicide, when the defense is insanity in the form of an irresistible impulse produced by the re'ceipt of information of 'the infidelity of his wife, it is competent for him to give in evidence every fact and circumstance that came to his knowledge prior to the killing, tending to show the intimacy between the person killed and his wife.</p> <p>1. Criminal Law — Insanity—Evidence That .Accused Had Information Subsequent to Killing of Infidelity of Wife. — But it is not competent for him to introduce evidence of witnesses who would say that they' saw acts of intimacy between the person killed and his wife, of which he had no information before the killing, or to prove that the information he received was true.</p>

<p>1. Wills — Intention of Testator. — Where a will shows an intention of imposing a personal liability upon a devisee he becomes personally liable upon accepting the devise.</p> <p>2. Wills — Construction.—But where the testator devised to his wife a particular fund, one-half in fee and the other half for life, with ^remainder to named devisees, and directed his wife out of the income from the whole of the fund to pay to his sister an annuity during her life, and the sister survives the wife, held that the will charged the income from the whole of the fund rather than the wife personally with the payment of the annuity.</p>

<p>Husband and Wife — Alienation of Affections — Criminal Conversation — Evidence—Sufficiency.—In an action by a husband for the alienation of his wife’s affections and for criminal conversation, evidence examined, and held insufficient to take the case to the jury.</p>

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

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

<p>1. ■ Action — Commencement of Action — Summons.—Under Kentucky Statutes, section 2524, and Civil Code, section 39, an action is deemed to have keen commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction of the cause of action.</p> <p>2. Limitation of Actions — Personal Injury — Summons—Record.—In a servant’s action for personal injuries, record examined, and held to show that process was issued in good faith against the defendants within twelve months from the time of the accident.</p> <p>5. Limitation of Actions — Pleading—Allegations Contradictory of Record — Sufficiency — Judgment Non Obstante Veredicto. — In a servant’s action for personal injuries, a plea of limitation, based on allegations contradicted by the record, is insufficient, and plaintiff’s failure to deny such facts will not authorize a judgment non obstante veredicto in favor of .the defendants.</p> <p>4. Pleading — Contributory Negligence — Judgment Non Obstante Veredicto. — In a servant’s action for personal injuries, the failure of the plaintiff to deny a plea of contributory negligence in the original answer will not authorize a judgment non obstante veredicto in favor of the defendants, where the plaintiff denied the same plea of contributory negligence contained in a subsequent answer to an amended petition setting up a new ground of negligence.</p> <p>5. Master and Servant — Proof- of Relation — Evidence—Sufficiency.—■ In a servant’s action for personal injuries, ■ evidence of plaintiff’s employment by tlie defendants as partners in the .ownership and operation of a saw mill examined, and held insufficient to take the case to the jury.</p>

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

<p>1. Habeas Corpus — No Appeal From Judgment on Writ. — No appeal will lie to this court from the decision of a judge of a circuit or inferior court in a habeas corpus proceeding.</p> <p>2. Habeas Corpus — Devision of Judge — When Reviewable in Equity. —Where the welfare of an infant is involved, • the decision of a judge in a habeas corpus proceeding involving the custody of. the child may be reviewed in an' equitable action if either of the parties in interest bring such action to have determined by the chancellor who shall have the custody of the child. In such a case the chancellor should make such orders as may be needful to enable the court to keep the child within its jurisdiction until the equitable action has been determined.</p> <p>3. Prohibition — Writ of — When Will Not Issue. — This court will not issue a writ of prohibition against a .circuit or other judge to restrain him from hearing and determining a case of which he has jurisdiction, although an appeal will not lie from his de- ' cisión, unless some very unusual oy extraordinary reason should demand our interference. Where the lower court has jurisdiction, this court will not issue its writ to prevent it from detei’mining the case, unless it plainly appears that great injustice would result or irreparable injury ensue from the decision of the lower court if the writ were not issued.</p>

<p>1. Criminal Law — Conspiracy—Evidence—Corroboration.—Evidence examined and held to authorize a submission of the case to the jury; that evidence of alleged conspirators implicating appellant, ' was corroborated by other evidence, and that the verdict of the jury is not palpably or flagrantly against the evidence.</p> <p>2. Criminal Law — Accomplices—Evidence—Submission to Jury.— Where the evidence is conflicting as to whether or not a witness is an accomplice, the question should be submitted to the jury upon proper instruction, but there is no evidence here upon which the witness could be convicted as a principal, aider, abetter or accessory and the court properly did not submit the question to the jury.</p> <p>3. Criminal Law — Confession—Instructions.—An instruction is required as to the effect to be given to a confession made out of court by the defendant, but not as to a mere admission.</p> <p>4. Criminal Law — Evidence—Appeal and Error. — Depending upon the circumstances it may or may not be prejudicial error to admit evidence in rebuttal that should have been introduced in chief; such an introduction of evidence out of regular order held not prejudicial in this case.</p> <p>6. Criminal Law — Conspiracy—Acts and Declarations. — Statements of one conspirator made after the commission of the criminal act of the conspiracy are ordinarily not competent evidence against other conspirators, but where the objects of a criminal conspiracy are not attained by the criminal act, statements made by any of the conspirators before the distribution of the fruits or profits- of the criminal act with reference thereto, are competent evidence against all of the conspirators, as are also statements made after the commission of a crime in an effort to prevent ihe discovery of the crime or the identity of those connected with its perpetration.</p> <p>6. Criminal Law — Conspiracy—Acts and Declarations. — The indictment having charged appellant in conjunction with others, with having conspired to burn a particular building, it was not error to permit proof of the whole conspiracy whicli included burning at the same time other buildings; or to admit evidence of an agreement made between other conspirators without the knowledge of appellant as to the method by which loss" from t-he destruction of property by a fire was to be proven in order to collect insurance thereon, the collection of the insurance being the object of the conspiracy, or to' permit the contradiction of appellant’s witness by telephone operators that he did not talk over the telephone with one of the witnesses for the commonwealth who had testified to such a conversation in reference to the alleged conspiracy, the telephone operators not being permitted to testify as to the conversation, but simply to the fact that a conversation was held by the parties at the time and place stated by appellee’s - witness and denied by appellant’s witness, both of whom were alleged conspirators.</p> <p>7. Criminal Law — Argument of. Counsel.’ — Statements made by the attorney for the Commonwealth in the. closing argument to the jury, to which' objection is made, considered and held not to have been prejudicial.</p>

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

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

<p>1. Elections — Contest—Supersedeas Bond — Mistake—How Corrected. —In an election contest if the losing party, before the expiration of thirty days from the rendition of the judgment, executes a supersedeas bond before the clerk of the trial court, but makes the other-party to the suit obligee therein instead of the clerk of the court, as provided by subsection 12 of section 1596a, Kentucky Statutes, the error may be corrected by the execution of a subsequent bond within the thirty days, payable to the clerk, and if the subsequent bond as executed is filed with the transcript within the time allowed, it will not be quashed on motion for that purpose, nor will the appeal be dismissed.</p> <p>2. Elections — Contest—Pleading.—In an election contest where certain named voters are contested, but the facts showing their disqualification are inadvertently omitted, an amendment alleging such disqualifying facts may be filed after the time appointed by law for the filing of contest or counter-contest pleadings, as the amendatory facts do not set up additional grounds of contest but render certain and complete those originally relied upon.</p> <p>3. Elections — Contest.—It is the disposition of courts to uphold elections as far as possible if it can be fairly and reasonably ascertained from the entire record which side received a majority of the legal votes cast, but if because of fraud, intimidation, , violence, bribery or other irregularity it can not be reasonably ascertained which person or proposition fairly received a majority of the legal votes cast, it is the duty of the court to adjudge the election void.</p>

<p>1. Deeds — Constructive Notice — Rule as to. — The general rule of constructive notice derived from deeds is, that it extends to every instrument forming an essential link in the direct chain of title through which the purchaser holds; that is, to the ultimate source of his title, and to every necessary deed through which the title must be directly traced, and which is necessary to its establishment.</p> <p>2. Deeds — Constructive Notice — Rule as to. — The general rule imputing constructive notice from title papers does not extend to or embrace recitals in a deed or other title paper of matter which is wholly foreign to the nature and objects of the instrument, or to statements contained in an instrument which is • purely collateral and deals with another subject matter, which is "not connected with the direct series of title deeds by reference, although such collateral instrument may have been executed between the same parties.</p> <p>3. Deeds — Notice.—Purchasers and persons dealing with the owner of property are bound by the recitals of the deed which conveyed the title to the vendor, although it was unrecorded and they had no actual notice of the recitals.</p> <p>4. Religious Societies — Conveyance of Property by. — The general powers of church officers are not materially different from those exercised by the managing officers and directors of private corporations and associations. In the absence of a charter of incorporation, the individuals composing the congregation are, as natural persons, competent to convey their property; hut, if •there are trustees in whom it is vested, they, with the consent of the individuals constituting the congregation, may convey, and in some jurisdictions, instead of such assent of the congregation' or religious body, it is made sufficient for the validity of any conveyance if the sale be sanctioned by the court.</p> <p>5. Mechanics’ Liens — Attachment.—A mechanic’s lien creditor can not secure to himself a lien superior to the lien of similar lien creditors, by suing and taking out an attachment upon the property which is subject to the common lien of all the creditors.</p> <p>6. Mechanics’ Liens — Statute.—Chapter 79 of the. Kentucky Statutes, relating to liens of mechanics and materialmen, provides a code of procedure by which the liens of mechanics and materialmen may be preserved and enforced; and, in order to preserve and enforce the lien therein provided for, the statute must be followed.</p>

<p>1. Appeal and. Error — Consolidation of Suits — Correct Judgment in Wrong Suit. — Where two suits were filed concerning the same subject-matter, but seeking relief on different grounds, and after-wards the suits were consolidated, the fact that the lower court gave a correct judgment but in the wrong suit did not constitute reversible error as the same judgment might have been rendered in the other suit.</p> <p>2. Costs — Should Be Paid by Party Bringing Unnecessary Suit, Although Successful. — Where two suits were instituted when one would have accomplished the purpose intended to be attained by both, the party in fault in bringing the unnecessary suit should pay the costs growing out of it, although successful.</p> <p>3. Municipal Corporations — Right of Mayor to Bring Suit — Consent of Council. — The mayor of the city may bring a suit when authorized by the council to do so, but he cannot bring a suit without its direction unless an emergency should arise demanding prompt action and it appeared that authorization from the council could not reasonably be obtained in time to permit him to take such steps as the exigencies of the case required.</p> <p>4. Municipal Corporations — Fire Limits Ordinance. — The fact that a fire limits ordinance provides a penalty for its violation does not preclude a court of equity from taking jurisdiction to cause the removal of a structure erected in violation of the ordinance.</p> <p>5. Municipal Corporations — Construction of Charter Containing Specific and General Provisions in Regard to Fire Limits. — Where a section of the charter gave the council authority to provide for the “prevention of fires” and also the power to restrain the erection of wooden buildings, the specific right conferred by the statute to regulate the erection of wooden buildings was not a limitation upon the power of the council to take reasonable means for the prevention of fire by supervising the erection of other buildings.</p> <p>6. Municipal Corporations — Ordinance Regulating Erection of ' Buildings — Sufficiency of. — Although an ordinance stipulating the character of buildings that might be elected in fire limits was not very definite, it described as well as was practicable the character of buildings that could be and that could not be erected, and.this was sufficient under the circumstances.</p> <p>7. Municipal Corporations — Arbitrary or Unreasonable Ordinances. —A city council cannot enact arbitrary, unreasonable, or capricious ordinances, and the city authorities charged with the enforcement of these ordinances cannot act in an arbitrary, unreasonable, or capricious manner.</p> <p>8. Municipal Corporations — Validity of Ordinances and Their Enforcement Subject to Review by the • Courts — Presumption of Validity of. — When the city council has enacted an ordinance, the presumption is in favor of its validity, and unless it appears to be unreasonable, arbitrary, or capricious as“ applied to the facts of the particular case, the courts will not override it.</p> <p>9.. Municipal Corporations — Council Cannot Grant Permission to Erect Building in Violation of Ordinance. — A city council, although authorized by the charter to grant permission to erect buildings, cannot' give permission to an individual to erect a building in conflict With an ordinance.</p>

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

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

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

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

<p>1. Contracts — Action for Extra Work — Estoppel—Waiver.—In an action against a general contractor by a subcontractor to recover for extra work performed by tbe latter, the defense that the extra work was done without a written order from the general contractor as provided by the contract, cannot prevent a recovery, where it is made to appear that the extra work was necessary; that it was done by the verbal direction of the engineer of the general contractor and under his supervision; and that such extra work was accepted by the general contractor when completed. In such state of case the doctrines of waiver and estoppel both apply to prevent such defense.</p> <p>2. Contracts — Action for Extra Work — Evidence—Appeal and Error. —Where errors on the part of the general contractor’s engineer require the performance of extra work by the subcontractor, not contemplated by the contract and for which the contract provides no method of determining the compensation of the subcontractor, it is competent for the latter to prove that it is customary in such cases to allow the subcontractor for such extra work the reasonable cost to him of the material used and labor employed in performing it, and a commission of ten per cent, for his superintendence of the work. A recovery awarded the subcontractor by the court upon this basis, authorized by the evi-' deuce, will not be disturbed on appeal.</p> <p>8. Contracts — Subcontractor—Damages.—Delay on the part of a subcontractor in completing as a whole, within the time fixed .by his contract for its completion, work required of him, will be excusable insofar as such delay was caused by errors'on'the part of the general contractor’s engineer; but for so much of the delay as was caused by weather conditions, temporarily suspending the work, the subcontractor will not be excused, in the absence of a - provision in the contract permitting it. Where the general contractor seeks by conterclaim the recovery of damages alleged to have been caused by delay on the part of the subcontrator in completing the work, in the absence of .a satisfactory showing that such damages did not wholly result from so much of the delay as was caused by the errors of his engineer, the rejection of the items of the counterclaim for such damages was authorized.</p> <p>4. , Appeal and Error — Findings.—It is a well known rule that’ conclusions of the circuit court on conflicting evidence will not, on appeal, be disturbed, unless found to be against the weight of the evidence.</p>

<p>1. Railroads — Care of Platforms and Approaches. — Railroad companies are under obligation to keep in safe condition all portions of their platforms and approaches thereto, to which the public do, or would naturally resort, as well as all portiops of their station grounds reasonably near to the platforms, where passengers or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go.</p> <p>2. Railroads — Negligence.-—It is per se negligence on the part of the railroad company to have an open trap door in the porch floor of the depot flush with and adjacent to the passenger depot platform.</p> <p>3. Railroads — Nuisance.—Where a railroad company lays out a miniature park to the rear of its depot for the use and enjoyment of its patrons and provides one way only to reach the park and this across a porch entered through a gate at the depot platform, a passenger who steps from the platform through a gate on to the porch is not 'a trespasser and does not commit a nuisance by resorting to the porch for a simple act which involves an improper use of the porch.</p>

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

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

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

<p>1. Carriers — Contract ior Issuance of Pass. — Statute—Pleading.—In an action to compel renewal and issuance by a railroad company of an annual pass authorizing free transportation to the plaintiff and his family on its cars, on the grounds that the • defendant in part consideration for a right of way through his lands for its railroad track conveyed it by plaintiff in 1894, agreed to furnish him and his family free transportation for life over its lines and to issue to them annually a pass or passes for that purpose, the. answer of the defendant admitted the contract and its willingness to still comply with its terms, but alleged the abrogation of the contract by the anti-pass statute enacted by the legislature of Kentucky, February 10th, 1916, which prohibited the defendant from continuing to furnish plaintiff and his family with free transportation longer than January 1st, 1917, and from issuing to him a pass after that date; held, that the answer presented, a good defense; hence, the action of the circuit court in' sustaining a demurrer thereto was error.</p> <p>2. Constitutional Daw — Anti-Pass Act. — It is the object of section 196, constitution, to prevent unjust, discrimination in the transportation of freight and passengers by a common carrier; hence, it may be said to declare the public policy-of the State on that subject; and as its provisions were in force when the contract under which the plaintiff demands the free transportation of the common carrier, was made, the contracting parties had knowledge of the power of the State, through its legislature, to enforce them." Therefore, the provisions of the constitution entered into and became a part of the contract at its inception; and its terms and obligations were at all times subject to the power of the leglislature to pass laws in pursuance of the constitutional provisions.' Hence, whe'n the anti-pass law enacted subsequently to the making of the contract, took effect the contract became illegal, and no longer of any binding effect. For the reasons mentioned tbe anti-pass act is not repugnant to article 1, section 10, constitution, United States, prohibiting impairment of tbe obligation of a contract.</p> <p>3. Constitutional Law — Statutes—Anti-Pass Act — Contracts—Police Regulation — The anti-pass law is simply a police regulation enacted in pursuance to the mandate of the constitution. The act defines unjust discrimination in terms that outlaw the contract in question, section 4 thereof declaring: “Free pass or free transportation, as used in this act, shall include any ticket, pass contract, permit or transportation issued, furnished or given to any person by any common carrier of passengers or passage for any other consideration than money paid in the usual way, at the same rate of sale or change open to all who desire to purchase, and shall include any tickets sold at reduced rates in common to all of the public. ...”</p>

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

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

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

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

<p>1. Corporations — Agreement Among Stockholders as to Management — When Invalid. — An agreement between, three stockholders of a corporation to vote their stock so as to. maintain two of them in their positions as officers of the corporation, and in the management thereof, is not binding upon, and will not be enforced against, an unwilling stockholder who was not a party to the contract; and, the fact that the non-signing stockholder knew of the existence of the contract between the other three stockholders cannot affect the rights of the non-signing stockholder.</p> <p>2. Corporations — Agreement Among Stockholders as to Management — Written Agreement. — The fact that a written agreement between three stockholders in a corporation to vote their stock on all occasions to retain two of them as officers, and in the management of the corporation, was filed in a pending chancery suit brought for the purpose of settling the estate of the father of the parties to the contract, did not add anything to the agreement, or enhance its dignity, since no attempt was made in the settlement suit to construe the agreeinent, or determine its legal effect.</p> <p>3. Corporations — Directors—When Court of Equity Will Not Restrain Exercise of Powers. — In the absence of a charge of fraud against the directors of a corporation, a court of equity will not restrain them from exercising their powers as directors, so long as they act within the powers c.onferred upon them by law; if they have the power to adopt a resolution, the motives of the members of the board in doing so do not constitute a legitimate question for the court’s consideration.</p> <p>4. Executors and Administrators — Wish of as to Management of Newspapers. — Where the testator directed his executors to continue the publication of the testator’s newspapers for ten years, and to employ both of his sons, at a liberal salary, in the management of the papers, the wish of the executor thus expressed will be given no controlling effect after the expiration of the ten-year period.</p> <p>5. Corporations — Management of Daily Newspaper — Differences Among Directors — Equity.—In the management of a daily newspaper owned by a corporation, a court of equity w(ll not consider as material or relevant the personal differences of the directors concerning the management of the paper, or the merits of their respective positions on pending public questions, or the charge that the plaintiff was temperamentally, or otherwise, unfit to act as president or business manager ofi the paper, since all of these questions are to be determined by the board of directors.</p> <p>6. Corporations — Government of Majority of Stockholders — Right of Appeal. — Bach and every stockholder in a corporation contracts that the will of the majority shall govern in all matters coming within the limits of the act of incorporation; and, in cases involving no.breach of trust, but only error or mistake in judgment upon the part of the' directors who represent the company, individual stockholders have no right to appeal to the courts to dictate the line of policy to be pursued by the corporation.</p> <p>7. Corporations — Enforcement of Contract by Stockholders — Vote of Stockholders. — A' stockholder of a corporation may vote as he pleases, and public policy forbids the enforcement of a contract by which a stockholder undertakes to bargain away his right to vote for directors according to his best judgment, and in the interest of the corporation. A stockholder has no right to disable himself by contract from performing his duty.</p> <p>8. Specific Performance — When Equity Will Not Undertake. — A court of equity will not undertake the specific performance of a contract which, on account of its many complicated and difficult questions, is incapable of being specifically enforced.</p> <p>9. Corporations — Power of Directors May Be Delegated to Executive Committee. — Under the clear weight of authority, the power of a board of directors- may be delegated to an executive committee of that board; and the acts and contracts of such a committee may be made binding on the corporation.</p> <p>10. Corporations — Appointment ■ of Receiver — Equity.—The power of ' a court of equity to appoint a receiver of a corporation, either because it has no properly constituted governing body, or because there are such dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage to its stockholders, is well settled; but, it is equally well settled that this power is subject. to certain limitations, namely, it must always be exercised with great caution, and only to such limit and to such'extent as may be necessary to preserve the property of the corporation and protect the rights and interest of its stockholders.</p>

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

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

<p>1. Assault and Battery — Indictment and Information. — An- indictment for assault and battery which charges defendant “unlawfully,- maliciously, negligently and wantonly” ran his automobile against and over a witness, is sufficient, although it does not charge it was done willfully, because the .word “malicious” includes and embraces the word willful.</p> <p>2. Criminal Law — New Trial — Newly Discovered Evidence. — A motion for new trial on the grounds of newly discovered evidence, to be available, should be supported by the affidavit of the witness by whom the alleged newly discovered facts are sought to be proven, or other, affidavit than that of the defendant.</p> <p>3. Criminal Law — New Trial — Argument of Counsel. — Although the Commonwealth’s attorney in the opening statement and in the concluding ¿rgument malees statements calculated to arouse the jury, but which are not inconsistent with the evidence, yet the defendant is not entitled to a new trial, because there is no prejudicial error. • ...</p>

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

<p>Appeal from Pike' Circuit Court •</p>

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

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

<p>1. Intoxicating Liquors — Distiller With a Federal License — Criminal Prosecutions. — Under section 2569b" of the Kentucky Statutes a distiller of brandy, who has a Federal license to sell spirituous liquors, is guilty of violating the statute if he has whiskey in his possession during the life of the license.</p> <p>2. Intoxicating Liquors — Distiller With a Federal License. — A distiller with a Federal license to sell spirituous liquor can only claim immunity from the penalty of the state statute when he has in his possession the kind of spirituous liquor that he is engaged in making as a distiller.</p> <p>3. Intoxicating Liquors — Distiller With a Federal License. — An indictment charged that. the accused had whiskey in his possession in October, 1916, at which time he did not have a Federal license. But he had in his possession whiskey after the issual of the license and before the finding of the indictment, and could be convicted of violating the statute for having the whiskey after the date of issual of the license.</p> <p>4. Intoxicating Liquors — Distiller With a Federal License. — Whether a person can be indicted under section 2569b of the Statutes for having liquor in his possession at a time when he did not have a Federal license, although he subsequently procured a license that was dated back to cover such time, is not decided.</p> <p>5. Indictment and Information — Statement as to Time — Misdemeanors. — Under section 129 of the Criminal Code the statement in the indictment as to the time when the offense was committed is not material.</p>

<p>1. Criminal Law — Continuance—Due Diligence. — In order to obtain / a continuance or to b’ave his affidavit read as the deposition of the absent witness, the defendant must himself take the neceasary steps to procure the attendance of such witness and cannot rely upon the fact that the Commonwealth has taken such steps.</p> <p>2. Criminal Law — Evidence—Sufficiency.—On a prosecution for homicide evidence considered and held that defendant’s guilt was a question for the jury.</p> <p>3. Criminal Law — Instruction—Underscoring.—On a trial for homicide, the underscoring of the words “guilty of wilful murder” and “guilty of voluntary manslaughter” in the instructions held not sufficiently prejudicial to authorize a reversal,</p> <p>4. Criminal Law — Homicide—Instruction.—On a trial for homicide, a self-defense instruction containing the words “and there appeared to the defendant, in the exercise of a reasonable judgment, no other safe means of avoiding,” held not subject to complaint.</p>

<p>-Master and Servant — Knowledge—Assumed Risk. — Where a servant, employed in operating a machine, is injured because of its defective condition, and who, for three months before the injurious accident, knew of the defective condition of the machine, and had taken it to the shop for repairs, and had continued to operate the nfachine, knowing it had not been repaired, and without assurance from the master of its safety, is held, as a matter of law, to have known of the defective condition of the machine causing his injury and to have assumed obvious risks incident to its operation.</p>

<p>1. Bills and Notes — Negotiability and Transfer. — A paper, negotiable under tbe Negotiable Instruments Act at its inception, remains negotiable until it is restrictively endorsed or discharged by payment or otherwise; but such negotiability exists after the maturity of the instrument only for the purpose of transmitting title to the holder, as prescribed by such act, the transferee in such case taking it subject to all defenses that could be made to it by the maker or endorsers.</p> <p>2. Bills and Notes — Negotiability and Transfer. — One who has possession after maturity of a negotiable instrument 'made such under the Negotiable Intruments Act, the last endorsement being in blank, is such a holder as will entitle him to maintain suit to collect it, and it is not necessary to entitle him to recover that he should fill in the blank above the last endorsement showing the transfer to be made to him.</p> <p>3. Bills and Notes — Negotiability and Transfer. — Where a negotiable note was sold after maturity under an endorsement by the bank, signed officially by the cashier, it is a sufficient endorsement to transmit the title to the note, unless the authority of the-cashier was restricted, and the transferee had knowledge of such restriction.</p> <p>4. Bills and Notes — Negotiability and Transfer — Ratification.—Where a cashier credited to his bank the consideration for a note transferred after maturity, which proceeds the bank used and appropriated, this constituted ratification by the bank of the act of the cashier in transferring the note, even though he had no au- . thority to do so at the time.</p> <p>5. Bills and Notes — Negotiability and Transfer. — If a note is trans- . ferred for a valuable hnd sufficient consideration by the cashier of a bank, the proceeds of which are appropriated by the bank, and it afterwards collects the note from the-maker who had no notice of the transfer, the bank is liable to’the holder, although such transfer may have been made by the cashier without authority.</p>

<p>1. Assault and Battery — Trial—Burden of Proof.; — In an action for damages for assault and battery, where the ass'ault is admitted and son assault demesne is pleaded, defendant has burden of proof and concluding argument.</p> <p>2. Assault and Battery — Evidence—Character land Reputation. — The general rule is that character evidence is inadmissible in civil actions, unless the nature of the charge puts the character of a party ip. issue; but, in an action for damages for assault and battery, where self-defense is pleaded in justification, evidence as to plaintiff’s general reputation for peace and quietude, • if known to defendant before the assault, is admissible.</p> <p>3. Assault and Battery — Evidence—Character and Reputation. — In an action for damages for assault and battery, where the assault is admitted, defendant’s reputation for peace and quietude is not In issue, and evidence as to such trait is irrelevant and immaterial.</p>

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

<p>1. Intoxicating Liquors — Statutory Provisions. — The local acts prohibiting the sale of spirituous liquors, which were in force at the time of the adoption of the constitution, remain ,in force until repealed by legislation or by a vote of the people, as provided for by the act of March 10, 1894.</p> <p>2. Intoxicating Liquors — Statutory Provisions. — The enactment of the general law of March' 10th, 1894, did not repeal the local prohibitory laws in force at the time of the adoption of the constitution, but with its amendments operated as an amendment to the local prohibitory laws, and became in force in the territories embraced by the local laws, controlling the quantities of liquors which were permitted to be sold in such territories, the procedure necessary, and the penalties to be applied for the violation of such laws, and the' local laws thus became a part and parcel of the general local option law of the state.</p> <p>. 8. Statutes — Repeal—Repugnancy.—A statute is only repealed by an express provision of a subsequent statute or by necessary implication, and if there is not such repugnancy between the provisions of the two statutes, that they cannot be reconciled, both statutes continue in force, and if one is a local statute-and relates to particular persons and places, and the other statute is a general one, they will both be held to be in force, and construed as forming one consistent law.</p>

<p>1. Negligence — Right of Action. — A boy injured by being thrown from his bicycle while riding along the public street of a city, his wheel dropped into a hole or depression in the street in which was a loose brick negligently placed there by a paving company, may recover damages against both the city and paving company if it be shown that the city failed to perform its duty to properly maintain its street, and the hole in the street contributed, in conjunction with the loose brick negligently-allowed to be and remain in the street by the paving company, to the fall and injury of plaintiff.</p> <p>2. Negligence — Evidence.—The mere fact that the paving company has a contract to reconstruct a part of a street and for the purpose has placed brick and other building material on the pavement along the city street near the point of plaintiff’s injury, does not relieve a complainant from the duty of showing that the brick which caused his fall and injury was the property of the paving company, and that it had negligently permitted it to be and remain in the street.</p> <p>3. Municipal Corporations — Damages.—It is the duty of a city to keep and maintain its streets in a reasonably safe condition for the use of the traveling public, and a failure to perform its duty in this regard may render it liable in damages to a traveler injured .through defects therein.</p> <p>4. Pleading — Cured by Verdict. — Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been fatal on demurrer, yet if the issue joined be. such as necessarily required, on the trial, proof of the facts so defectively stated or omitted and without which it is not presumed that the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.</p> <p>6. Municipal Corporations — Negligence of Agents. — A city is not responsible for the negligence of its agents or servants while engaged in the construction or reconstruction of its streets, the same being a governmental function, but an injury occasioned through a defect in a street kept open to the public by the city, which does not result directly and proximately from the exercise of a governmental function, renders the city liable.</p>

<p>1. Pardon — Parole of Convict — Rearrest—Board of Prisons. — A convict who has been paroled by the Board of Prison Commissioners remains subject to the board’s control; and if he violates the parole may be rearrested and placed again in prison. While at liberty under the parole he is subject to the control of the board • as he was before the parole was granted.</p> <p>2. Pardon — Parole of Convict — Re’arrest—Remedy of Convict. — A convict who.has been paroled and has subsequently been rearrested under a warrant by the Board of Prison Commissioners for a violation of his parole, is not illegally detained in custody, and the writ of habeas corpus cannot be used to effect his release from custody. If the board should in any case abuse its authority in rearresting a convict, the remedy is by a proceeding, brought by the convict in the circuit court of the proper county, to obtain a mandamus or injunction requiring the board to proceed properly; and in such proceeding the facts may all be shown and either party aggrieved'by the decision may prosecute an appeal therefrom to the Court of Appeals.</p> <p>3. Habeas Corpus — App'eal and Error. — No appeal lies from an order made on a writ of habeas corpus, and if such a proceeding as the one complained of in this case could be maintained, the authority of the board would be destroyed, and it would be powerless to perform its duties as required by the statute.</p> <p>4. Prohibition — Writ of — Constitutional Law. — Under section 110 of the constitution this court has power to issue such writs as may be necessary to give it a general control of inferior jurisdictions; and it may issue a writ of prohibition to restrain an inferior court from proceeding out of its jurisdiction, or where it has jurisdiction, but an appeal will not furnish an adequate remedy, or there is no other remedy.</p>

<p>1. Appeal and Error — Piling of Transcript — Dismissal.—The provisions of section 738, Civil Code, are mandatory, and an appeal ‘ granted by tbe lower • court will, on motion of tbe appellee, be dismissed, where the transcript is not filed in the office of the Clerk of the Court of Appéals at least twenty days before the first day of the second term of that court after the granting of the appeal, and no extension of time for filing the transcript has been granted by the Court of Appeals.</p> <p>2. Appeal and Error — Order Granting Appeal — Presumption.—While it is essential to the validity of a judgment that it be entered upon the order bo'ok of the court and signed by the judge, and an unsigned judgment is no judgment at all; where the record is silent as to when an order granting an appeal was signed by the judge of the circuit-court, the presumption will be indulged that the order was signed on the date of its entry.</p>

<p>Appeal and Error — Jurisdiction—Passway.—-No appeal lies, as a matter of right, from a judgment for $250.00 damages to a pass-way where the defendant merely denied the title of the plaintiff to the passw’ay in question, and did not claim title in himself.</p>

<p>1. Landlord and Tenant — Independent Contractor.- — In making repairs to and improvements upon property, which has been let to rent, although the work is done gratuitously by the . landlord and with the consent of the occupying tenant, the landlord owes a debt of reasonable care to the occupying tenant, and he cannot absolve himself from this liability by employing an independent contractor to do the work, if the work to be done is attended with danger to the tenant.</p> <p>2. Landlord and Tenant — Condition of Premises — Liability cf Landlord. — As a general rule, in the absence from the contract of any undertaking on the part of the landlord, that the premises are in any particular condition, the tenant takes the premises as he finds them, and there is no implied undertaking by the landlord, from the mere fact of letting them to rent, that the premises are fit for the purpose for which they, are let, or that they are in any particular condition, but if the landlord knows, at the time of the letting, that the premises are in an unsafe 'and dangerous condition and such condition is not discoverable by the tenant by the exercise of ordinary care, and the landlord fails to disclose the dangerous condition or conceals it, he is liable to the tenant and to his family, servants and guests for injuries sustained by them, which result from the unsafe and dangerous condition of the premises.</p> <p>3. Master and Servant — Independent Contractor, — An independent contractor is not a servant of an employer, and his knowledge cannot be imputed to the employer.</p> <p>4. Master and Servant — Independent Contractor. — A contractor, who contracts to do a piece of work according to his own ideas, or in accordance with plans and specifications previously furnished to him by his employer, and has the right to select and employ his own assistants, the employer having no control over the assistants, and no right to direct the manner of doing the work, further than to require that it shall be done in compliance with the plans and specifications under which it is contracted to be done, and who is answerable to the employer for the final result of the work, only, i$ an independent contractor.</p> <p>5. Landlord And Tenant — Condition of Premises — Notice.—If the landlord is notified that the premises are in a dangerous condition and the notice to him is sufficient under all the circumstances to apprise a person of ordinary prudence that the premises are in a dangerous condition, such notice will be regarded as knowledge.</p>

<p>1. Injunction — Reinstatement.—An injunction or order issued by tbe clerk of tbe court, the county judge, or other officer mentioned in section 273 of tbe Civil, Code of Practice, after notice and bearing, may be reinstated on motion before a member of tbe Court of Appeals, as is provided by sections 296 and 297 of the code, if it is dissolved by tbe circuit judge, as is provided by section 290 of the code. However, such an order will not be reinstated by a member of tbe Court of Appeals if tbe original order was issued upon an ex parte application, and without notice.</p> <p>2. .Schools and School Districts — Teachers—Board of Education. — - If a school has been designated and created by tbe county board of education as !a county high school, tbe authority for tbe employment of teachers in the entire school is with the county board of education, and the trustee of the district in which the high school' is created has no authority to appoint or designate teachers in the school, not even for the branches taught in the common school before it was designated as a high school.</p>

<p>1. Railroads — Separate Coach Law — Accommodations for Passengers. — A railroad company, in operating a train consisting of an • engine and combination coach with no separate compartments therein for white and colored passengers, violates the separate coach law (Ky: Stats., sec. 795).</p> <p>2. Railroads — Accommodations for-Passengers — Exception.—A rail-, road company, carrying white and colored passengers commingled, to come within the exception to the separate coach law (Ky. Stats., sec. 801), must transport them on a train that is distinctly and primarily a freight train, with caboose attached as a necessary part of its equipment.</p>

<p>Quieting Title — Evidence—Finding.—Where in an action to quiet title, the case turns on the true location of a dividing line and the only evidence of any value on the question tends to support the contention of the plaintiffs, the petition should not be dismissed, but the chancellor should render judgment in favor of the plaintiffs.</p>

<p>Evidence. — The evidence fails to support the charge.</p>

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

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

<p>Wills — Construction.—Lapsed Gift — Intestate Property. — The will of testatrix directed1 her executor to use the sum of $25,000.00, for the erection of a mortuary chapel in a cemetery, and provided that the chapel, when completed, should become the property of the cemetery. After this and other bequests, the residue of her estate was given tó her nephew. The cemetery refused to accept the chapel. Held, that the gift to the cemetery passed as in case of intestacy under Kentucky Statutes 4843, providing that unless . a contrary 'intention shall appear, a devise Which fails shhll pass as in case of intestacy find not to the residuary legatee; there being nothing in the will indicating an intention that in case the devise to the cemetery failed, it should go to the residuary legatee.</p>

<p>1. Commerce — Interstate Commerce — Work of Employee. — A member of a switching crew assisting in placing on a track for the purpose of taking them to 'a point within the state, three boarding cars, which had come from a point outside the state and had reached their destination and had then been placed on a particular track, w'as not then engaged in interstate commerce within the ■meaning of the Federal Employers’ Liability Act, since the interstate movement of the cars had terminated before the switching began.</p> <p>2. Commerce — Interstate Commerce — Work of Employee. — Where a railroad and an employee are engaged in switching a car containing an interstate shipment for the purpose of transporting such shipment to its destination, they are both engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act.</p> <p>3. Trial — Directing Verdict' for Defendant. — Where in an action for death, plaintiff elected to proceed under the State law, and the uncontradicted evidence of unimpeached witnesses, showed that at the time of the injuries resulting in his de’ath, the railroad and the decedent were engaged in interstate commerce, defendant’s motion for a directed verdict should have been sustained.</p>

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

<p>1. Forgery — Uttering or Publishing Forged Instrument — Statute.— Kentucky Statutes* section 1213a, does not embrace the offense defined in Kentucky Statutes, section 1189. The offense denounced by section'1189 is that of forgery and counterfeiting and includes the mere erasing or altering as well as the forging or counterfeiting of a bank bill, note, check, draft or certificate of deposit of money in a bank; and also provides a penalty for the violation of the provisions of the section. Section 1213a defines and provides a penalty for a wholly different offense,- viz.: that of drawing, uttering or delivering any check, draft or order for the payment of money upon a bank or other depository with intent to defraud and with knowledge on the part of the drawer, utterer or deliverer of the check, draft or order for the payment of money that there are not sufficient funds in the bank or depository upon which it is drawn for the payment of such check, draft or order in full upon its presentation. The language of section 1213’a includes, therefore, the mere endorser of a' check, draft or order for the payment of money upon any bank or other depository, who passes it by his endorsement and delivery to another with intent to defraud, knowing at the time of such endorsement and delivery of the check that the maker or drawer has not sufficient funds in such bank or depository for the payment of such check, draft or order in full upon its presentation. As the indictment against the endorser and • user of the worthless check in this case follows the language of section 1213a in setting forth the acts constituting the offense charged, and the offense is one denounced by the section, the "action of the trial court in overruling the defendant’s demurrer to the indictment and his motion in arrest of judgment, was not error.</p> <p>2. Criminal Law — Evidence—Competency.—Where the intent, knowledge or motive under which the defendant did the act charged against him can only be shown by circumstantial evidence, evidence of another like crime committed by him about the same time, and by a like method, will be competent to establish the motive or intent with which the act constituting the offense for which he is being tried was committed.</p>

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

<p>1. Master and Servant — Workmen’s Compensation Act — Negligent Third Party — Damages.—An employe, injured in the course of duty, by the negligence of a third party, may, under Section 9, Workman’s Compensation Act, proceed against the employer for compensation and also against such third party for damages; and may collect from the employer the compensation awarded, and from the third p'arty so much of the amount of damage adjudged as exceeds the amount of compensation awarded, or he may collect the entire amount of damage from the third party and nothing from the employer.</p> <p>2. Master and Servant — Parties.—Under section 9, Workmen’s Compensation Act, the employer may recover of a negligent third party the amount of indemnity he has paid or becomes liable to pay to an employe, injured by such third party, and the employer is, therefore, a necessary party.</p> <p>3. Master and Servant — Evidence—'Trial.—In an action for damages by an employe against a negligent third party, awards under the Workmen’s Compensation Act and payments thereunder are not material to the issues, and neither evidence nor instruction with reference thereto should be submitted to the jury.</p> <p>4. Master and Servant — Workmen’s Compensation Act — Judgment.— In an action for damages by an employe who has accepted the provisions of the Workmen’s Compensation Act, against a negligent third party, judgment upon the verdict in favor of the employe should be apportioned between the employe and employer according to their respective interests therein, as shown by the pleadings and proof.</p>

<p>1. Appeal and Error — Bill of Exceptions. — No paper found in the record and not made a part of it by order of court or bill of exceptions will be considered on appeal.</p> <p>2. Appeal and Error — Omitted Parts of Record. — -When the transcript as copied shows that there were portions of the record omitted, and the transcript as copied does not manifest the error complained of, it will be presumed that the omitted portions would authorize the judgment.</p> <p>3. Judicial Sales — Exceptions—Pleading.—In the absence of pleadings the judgment directing the sale, or other parts of the record showing the appellant to have been interested in the land sold, or the proceeds to be derived therefrom, and the transcript as filed failing to show that fact, the order of court overruling the exceptions to the sale filed by the appellant will be overruled1, upon the ground that he fails to show such interest as would entitle him to object to the sale. . ,</p>

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

<p>1. Intoxicating Liquors — Unlawful Sale of — Sufficiency of Evidence. —In prosecutions for violations of the liquor laws the jury are not bound to accept as true the testimony of the accused or his witnesses. They have a right to consider all the facts and circumstances in the case and may return a verdict of guilty if it is justified by the facts and circumstances, although it may not be supported by direct evidence of guilt.</p> <p>2. Intoxicating Liquors — Construction of Sections 2557b and 2570 of the Statutes — Device to Evade Statute. — Under Séction 2557b of the Kentucky Statutes a conviction cannot be had for giving another a drink of liquor, or for furnishing a little liquor to a neighbor in a ease of sickness, or unless the liquor was furnished by the accused to another to be sold, or the accused had it in his possession for the purpose of selling it. But the act of a moonshiner in pretending to give about a 'gallon of whiskey to a sick friend may be treated as 'a device to evade the law as provided in section 2570 of the Kentucky Statutes.</p>

<p>Judgment — Pleading.—If defense is made and the pleadings justify it, the court may render such a judgment as the pleadings and proof show the plaintiff entitled to under the general prayer for relief, although there is no special prayer for the relief given by the judgment; but, unless the pleadings authorize the judgment, none such may be rendered under a general prayer.</p>

<p>1. Partnership — The Firm, Name, Powers and Property. — A partner- . ship designation showing the surname of the partners is not an assumed or fictitious name such as to require the names of the partners with their postoffice address and place of business to be filed with the office of the clerk of the county in which the firm does business, as is provided by Section 199b of the Kentucky Statutes, and if the firm name contains the surname of one of the partners the statute does not apply so as to require the filing of the certificate therein provided. (Sub-section 4, Section 199b, Kentucky Statutes).</p> <p>2. Partnership — The Firm, Name, Powers and Property. — The style of the firm was Mahan & Company, its members being J. P. Mahan and W. B. Siler. Held, that under the provisious of Sub-section 4 of Section 199b of the Kentucky Statutes, the members of the firm could not be prosecuted for failing to file the certificate with the county court clerk as provided in Sub-section 1 of the section.</p>

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

<p>1. Elections — Contest—Evidence.—In an election contest, growing out of a municipal primary election, upon the issue as to which of the parties certain illegal voters had cast their ballots for, evidence that such voters entertained hostile feelings toward the city administration and its officers was inadmissible as hearsay circumstantial evidence and has no probative value. -</p> <p>2. Elections — Evidence—Opening of Ballot Box. — In an election contest, before the ballot box can be opened and the ballots recounted to rebut the presumption of the correctness of the certificate of election, the one seeking the reeount of ballots must prove clearly and satisfactorily that the box has been kept as the statute requires, that the ballots have not been tampered with since the election, and that the ballots offered in evidence are the identical ones cast.</p>

<p>1. Elections — Contest—Service of Notice by Special Bailiff. — The appointment of a special bailiff, under section 668, Civil Code, to serve a notice of contest of a nomination was not authorized, where the grounds for the appointment were an affidavit of the plaintiff, which showed no reason why the notice could and would not be served by the jailer or his deputy, or any of the constables in the county.</p> <p>2. Elections — Contest—Service of Notice. — A notice of the purpose to contest the nomination of one as a candidate for an office must be served as a summons from the circuit court is required to be served, unless by reason of the contestee concealing or absenting himself, or in some other way obstructs the service of the notice, when it may be served as a notice is required to be served by sections 624 and 625, of the Civil Code, but the service must be within five days from the gr’anting of the certificate of nomination.</p> <p>3. Appearance — Proceedings Constituting Appearance — Jurisdiction— Waiver. — Where a defendant appears for the sole purpose of objecting to the jurisdiction of the court over his person, and does • no act from which it may be implied that he waived his objection . to the jurisdiction, he does not thereby make a general appearance to the action.</p> <p>4. Appearance — Objection to Jurisdiction — Waiver—Pleading.—Where the pleading of the plaintiff does not disclose the want of jurisdiction of the court over the person of a defendant, and he in the first instance, makes objection to the jurisdiction by a proper pleading, he m’ay then plead to the merits of the action without waiving his objection to the jurisdiction, unless he, by some act, shows his purpose to abandon his objection and submit himself to the court’s jurisdiction.</p>

<p>Insurance — Life Insurance — Reformation of Policy — Fraud or Mistake — Evidence.—The application for a life insurance policy provided that the policy should not be in force until the policy was delivered and the first premium was paid during the good health of the insured. The" policy was dated the day it was issued and provided that subsequent premiums should be payable on the same date in succeeding years. Through no fault of the Company, the policy was not delivered until seventeen days after its date. No misrepresentation as to its provisions was m’ade by the company or the agent who delivered it. The insured examined and accepted the policy and though subsequently notified that the next premium was payable on the date fixed in the policy and that the period of grace would expire after the expiration of one month from that time, retained the policy without objection or asking that it be reformed, until after the policy was forfeited for the nonpayment of the next premium as therein provided. Within thirty days after the expiration of one year from the time the policy was delivered, the beneficiary mailed a check to the company for the premium, which the company declined to accept, unless furnished with satisfactory evidence that the insured was in good health. A few days later the insured died. Held, in an action by the beneficiary to reform the policy and recover thereon, that the mere fact that the policy was dated the day it was issued and the subsequent premiums were made payable on the Same date in succeeding years instead of the date of its delivery, was not such evidence of fraud on the part of the cdmpany or mutual mistake on the part of the parties as would authorize a court of equity to reform the policy so as to make the defaulted premium payable one year from the delivery of the policy instead of one year from its date, and then adjudge a recovery on the policy.</p>

<p>1. Schools and School Districts — Election to Incur Bonded Indebtedness — When May be Held. — Under the provisions of section 3606, Kentucky Statutes, any city of the fourth class in which a system of public schools shall be established and maintained, shall constitute one common school district, and a school election in such district for the purpose of incurring a bonded indebtedness to construct, remodel or repair the school buildings of the district and otherwise adequately equip the schools, may be held on a day, after being properly called, other than the general election day.</p> <p>2. Schools and School Districts — Election to Incur Bonded Indebtedness — Overruled Cases. — It is the object of section 155, Constitution, to take all character of school elections out of the operation of the rules prescribed for and limitations placed upon all other elections; therefore, a graded school bond election, ordered by a city council, may be held upon a day other than a regular election day. The case of Ashland v. Culbertson, 103 Ky. 161, insofar as it may be regarded as holding that a graded school bond election cannot be legally held on a day other th'an a regular election day, is overruled.</p>

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