Volume 177 — Kentucky Reports

<p>1. Appeal and Error — Dismissal, Withdrawal or Abandonment.— Where it is made to appear that the right oí the appellant to prosecute his appeal has ceased, section 757, Civil Code, authorizes its dismissal, upon motion of the appellee, supported by written grounds showing the loss or cessation of such right to prosecute the appeal.</p> <p>2. Appeal and Error — Dismissal.—If, pending the appeal, conditions should arise that would make such judgment as would be rendered on the appeal, of no effect, the appeal will be dismissed.</p> <p>3. Appeal and Error — Compromise—Dismissal.—Compromise by the appellant, after the granting of the appeal or during its pendency, of the judgment (appealed from, will authorize the dismissal of the appeal upon the appellee’s motion made as allowed by section 757, Code.</p> <p>4. Appeal and Error — Dismissal.—If the facts authorizing the dismissal of the appeal as allowed by section 757, Civil Code, be not shown by the record, the appellee may, as provided by section 758, Civil Code, plead them by a verified answer, to which the appellant may file a verified reply; but if the appellant fail, by such reply, to controvert the averments of the answer, they are to be taken as confessed; and in such state of case the dismissal of the appeal will follow.</p>

<p>1. Waters and Water Courses — Surface Waters. — Where two city lots adjoin, and one lies higher than the other, the lower lot is subject to the easements and servitude of receiving the natural flow of surface water from the upper estate.</p> <p>2. Waters and Water Courses — Surface Waters. — One owning a lower estate may not erect and maintain embankments or other obstructions which will interfere with the natural flow of surface water from the upper estate on to the lower, and if one obstructs the flow of such water a court of ;quity, upon proper application, will require the wrongdoer to remove the obstruction and to desist from further interference.</p> <p>3. Waters and Water Courses — Surface Waters. — The owner of the upper estate may not collect and concentrate the surface water at one point upon his property and turn it in such volume as will cause erosion of the soil of the servient estate.</p>

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

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

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

<p>1. Criminal Law — Verdict.—A verdict of guilty in a criminal case cannot be set aside as not being sustained by tbe testimony if there is any testimony to support it and' it is not flagrantly against the evidence.</p> <p>2. Criminal Law — Evidence—Instructions.—If the Commonwealth, by way of refreshing the memory of a witness, asks its witness if he did not m'ake a certain statement out of court, which the witness denies, and no one testifies in contradiction of the witness that such statement was made, this does not amount to a contradiction of the witness and the court need not instruct the jury or admonish it as to the effect of such contradicting testimony as is required when it is introduced.</p> <p>3. Criminal Law — Evidence.—Evidence examined and held that it was sufficient to authorize the jury to find the defendant guilty of the crime of murder, for which he was being tried.</p>

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

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

<p>1. Highways — Passways—Right to by Prescription. — The grant of a right of p'assway by prescription will be presumed from an uninterrupted, unexplained and adverse use of such a nature as to indicate a claim of right for fifteen years or more.</p> <p>2. Highways — Passways — Difference Between Prescriptive Right Through Unenclosed Woods and Enclosed, Cultivated Land. — There is a marked difference between the right of the public claiming a p'assway when the travel has been for many years through open, uncultivated woodland and where it has been through enclosed, cultivated land; and it requires much stronger evidence to establish a right by prescription to a.passway through open, uncultivated woods than it does to establish such right through enclosed, cultivated land.</p>

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

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

<p>1. Appeal and Error — Witnesses—Competency — Transactions With Decedent — Prejudicial Error. — It is not prejudicial error for a witness to testify that she executed a note in the presence of a bank’s c’ashier, since deceased, where the execution of the note is admitted by the pleadings.</p> <p>2. Witnesses — Competency—Transactions With Decedent. — The alleged maker of a note to a bank is not prohibited by the code from testifying that she did not execute the note, merely because some official of the bank is of the opinion that it must have been executed in the presence of the bank’s cashier, who had’ since died.</p> <p>3. Bills and Notes — Action to Cancel — Action to Recover Proceeds not Credited — Evidence—Sufficiency.—In an action by the maker ■■ to cancel a note on the ground that she did not execute it and to recover the proceeds of another note on the ground that she received no credit therefor, evidence examined' and held sufficient to support a verdict in her favor.</p>

<p>Bills and Notes — Actions—Defenses.—Under the Negotiable Instruments Act, providing that the maker of a negotiable instrument, by making it, engages to pay it according to its tenor and admits the existence of the payee and his then capacity to endorse, the failure of a payee, whether a corporation or doing business under a trade name, to file certificate as required by either section 571 or 199b, does not give to the maker of a note the right to deny the existence or capacity to endorse of the payee, and such failure is' not a defense to an action on a note by the holder in due course.</p>

<p>1. Railroads — Fences and Cattle Guards. — Section 1793 of the statute requiring cattle guards to be constructed at terminal points of fences constructed along the lines of railroads means lateral and parallel fences with the railroad track, and it is only where such fences terminate that cattle guards are-required to be constructed, except at public road crossings and private passway crossings, as designated in the statute. Before the adjoining landowner can complain of the failure to construct or maintain cattle guards where fences approach the track, he must show that they are lateral and parallel fences, and that the point where cattle guards are not constructed or maintained is where such fences terminate, and if he or some of his vendors have not constructed the fence on both sides of the right of way it must be alleged and proved that one-half of such fences has been constructed by the adjoining landowner and proper notice given to the railroad dompany to construct the other one-half.</p> <p>2. Railroads — Fences and Cattle Guards. — The statute does -not require a railroad company to construct cattle guards at the points of entering and leaving plaintiffs farm, unless such points are terminal ones of lateral and parallel fences to the right of way.</p> <p>3. Railroads — Fences and Cattle Guards. — Section 1789 relieves a railroad company for the first five years of its operation, from the operation and obligation of the fencing laws of this Commonwealth, but not necessarily of the obligation to erect cattle guards at terminal points of lateral fences, provided such fences were wholly constructed by the landowner.</p>

<p>1. Appeal and Error — Bills and Notes — Cancellation—Finding of Chancellor — Evidence—Sufficiency.—In an action to cancel a note on the ground of payment, evidence considered' and held to support tbe chancellor’s finding that the note had been paid. .</p> <p>2. Appeal and Error — Exceptions to Depositions — Necessity of Ruling — Waiver.—On appeal, an error in the admission of improper evidence by deposition is waived, unless an exception is saved and acted on by the trial court.</p>

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

<p>'1. Prohibition — Jurisdiction, Proceedings and Relief. — If a county court has jurisdiction to hear, determine and pass upon a case, the circuit court is not authorized, by a writ of prohibition, to deny to the county court the exercise of its jurisdiction, although the circuit court may be of the opinion that the county court will make an erroneous decision.</p> <p>2. Counties — Apportionment Into Magisterial Districts. — Under article VII, subdivision I, of Kentucky Statutes, the county court has exclusive jurisdiction of the apportionment and reapportionment of the county into justices’ districts, and its jurisdiction is as unlimited as the nature of the subject will admit.</p> <p>?. Counties — Apportionment Into Magisterial Districts — Notice.— The publication of notice, as required by section 1082, Kentucky Statutes, of the intention of making application for the appointment of commissioners to reapportion the county into justices’ districts iS a jurisdictional fact, which must exist before the county court can exercise its jurisdiction over the subject, matter, but if this fact actually exists, the jurisdiction is complete.</p> <p>4. Counties — Apportionment Into Magisterial Districts — Jurisdiction —Order.—An order of the county court appointing commissioners to reapportion the county into justices’ districts, which recites that á copy of the notice of the motion is filed, and that the court has satisfied itself that the publication of the notice, as required by the statute, has been made, and the notice is of record, the order is not void' upon its face, because it does not specifically show that proof was heard and that the notice had been published by posting a copy at the court house door and at three public places in each justices’ district, for twenty days before the term of court at which the application for the appointment of commissioners was made, but the court having unlimited and exclusive jurisdiction of the subject matter, it will be presumed, that the necessary jurisdictional facts existed, until the contrary is shown.</p> <p>6. Courts — Jurisdiction of County Court. — Where the jurisdiction oí the county court over the subject matter is complete and unlimited, its action will be presumed to be within its jurisdiction, and its judgment in reference thereto will not be held to be void upon its face, unless the record shows that the jurisdictional facts did not exist.</p> <p>6. Elections — Primary Elections. — A primary election for the nomination of a candidate is not an election, as contemplated by section 1082, Kentucky. Statutes.</p>

<p>1. Husband and Wife — Married Women — ^Conveyances.—A married woman cannot, by deed, convey her lands, unless her husband joins in the deed, or has theretofore, by a separate deed, conveyed his interest in the lands. Her attempt to convey otherwise is void.</p> <p>2. Contracts — Action by Son to Recover for Services Rendered Father and Mother — Parent and Child. — A son residing with his father and mother, as a member of the family, cannot recover for services rendered them, unless an express contract is shown, by which he is to receive compensation for his services.</p> <p>3. Vendor and Purchaser — Improvements—Liens.—When a married wom'an conveys her lands by deed, in which her husband does not join, and is therefore adjudged to be void, as against the woman or her heirs, the vendee is entitled to a lien upon the lands to secure the payment to him of the enhanced .vendible value, which the improvements he has placed upon the lands have added to it, not in excess of the cost of the improvements, provided, he in good faith believed his title to the lands was good, and has performed his contr'act, if the performance of a contract was the consideration for the void conveyance.</p> <p>4. Descent and Distribution — Advancements.—The excess of advancements made to one heir over the others is not a debt, which lie owes to the other heirs, and an advancement is to be estimated at its value at the time when the 'advancement is made, unless the advancement is made to be enjoyed at a future time, when the value is to be estimated as of the time when the gift is made complete by the possession and enjoyment of the property.</p>

<p>1. Justices of tbe Peace — Jurisdiction—Territorial Jurisdiction.— Where a justice of the peace renders judgment and issues execution thereon outside of his district, the judgment and execution are invalid.</p> <p>2. Execution — Levy and Sale — Liability of Officer. — Where the subject matter of the action is within the jurisdiction of a justice of the peace, a constable may obey and justify under an execution that is regular and fair on its face, although he may have had independent knowledge of the fact not disclosed by the record, that the justice had acted while holding court outside his district.</p> <p>3. Pleading — Sale of Exempt Property — Liability of Officer — Action for Damages — Petition—Sufficiency.—Where one section of a statute exempts to a person with a family, resident in the Commonwealth, two work beasts, and the succeeding section prescribes the circumstances under which the officer is authorized to sell such property, h petition in an action for damages against the officer for selling exempt property which merely alleges that the work beasts levied on were exempt, without negativing the circumstances under which the officer was authorized to make a sale, is bad on demurrer.</p>

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

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

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

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

<p>1. Elections — Contest—Notice—Jurisdiction.—The giving of the notice of the contest of an election under subsection 28 of section 1550 of the Kentucky Statutes within the time therein prescribed, is a jurisdictional prerequisite, and unless the notice be so given the circuit court is without jurisdiction to try the case.</p> <p>2. Elections — Primary Elections — Contest—Corrupt Practices Act.— The Corrupt Practices Act of 1916 did not modify or amend the provisions of subsection 28 of section 1550 of the Kentucky Statutes relating to the contest of a nomination in a primary election.</p> <p>3. Elections — Contest—Certificate of Nomination. — For the purpose of contesting a nomination the certificate of nomination should be treated as awarded when it had been ascertained by a canvass and tabulation of the votes, who the successful candidate was, although the certificate was not then issued.</p>

<p>1. Intoxicating Liquors — Sale by Licensed Distiller — Statute.—A licensed distiller who sells in local option territory and; at his distillery, in the original package, a barrel of apple brandy of his own make, not to be drunk on the premises, though the purchaser be not a licensed wholesale dealer or a licensed retail dealer in such liquors, cannot be convicted of the offense defined by section 2557b, Kentucky Statutes, viz., unlawfully having in his possession spirituous, vinous or malt liquors for the purpose of selling same in local option territory. But for making such sale of brandy in local option territory, though it be at his distillery, the brandy be of his own make, and the sale made by wholesale, if the purchaser of such brandy be not a licensed wholesale nor a licensed retail dealer in such liquors, he would be guilty of the offense defined by section 2558a, Kentucky statutes.</p> <p>2. Intoxicating Liquors — Sale by Licensed Distiller.- — As the offense of which the defendant was shown by the evidence to be guilty in this case, is th'at defined by section 2558a, his indictment for and conviction of the offense defined by section 2557b, was unauthorized.</p>

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

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

<p>1. Intoxicating Liquors — Offenses—Question for Jury — Evidence.— In a prosecution under section 2569b, Kentucky Statutes, against a carrier for delivering liquor in local option territory, evidence that liquors were delivered in such quantities and with such frequency as-to put an ordinarily prudent person on notice that they were not intended for personal use, was sufficient to take the case to the jury and to support its verdict.</p> <p>2. Intoxicating Liquors — Offenses—Evidence.—In the prosecution of a carrier under section 2569b, Kentucky Statutes, where deliveries of liquor were frequent and in large quantities, evidence held admissible to show what information the agent, who delivered the liquor, had, before its delivery, with reférence to its disposition by the consignee.</p> <p>S. Intoxicating Liquors — Trial—Argument of Counsel. — In the prosecution of a carrier under section 2569b, Kentucky Statutes, certain statements of counsel to the jury held to be warranted by the evidence.</p> <p>4. Intoxicating Liquors — r-Trial—Argument of Counsel — Instructions. ■ • — In the prosecution of a carrier under section 2569b, Kentucky Statutes, where the court sustained objections to a statement of counsel to the jury that the deliveries of liquor by the defendant was causing all the trouble in the court and in the county, and the court admonished the jury not to consider it, the error was cured.</p>

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

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

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

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

<p>1. Ejectment — Action—Where a petition for the possession of land and to quiet plaintiff’s title thereto, avers defendant is in possession, the action is in ejectment and one at law, although the form of the petition is in equity.</p> <p>2. Champerty and Maintenance — Ejectment—Pleading—Material Allegations. — By section 212, Kentucky Statutes, a defendant in an action of ejectment is given the option, either to take advantage of the champerty statutes under the general issue or to plead champerty in bar of the action. Where he elects to plead, his allegations of champerty are material and, unless traversed, are to be taken as true.</p> <p>S. Appeal and Error — Reversal—Action—Judgment.—Where an ordinary action was erroneously filed in equity and not transferred, upon a reversal, the judgment of the chancellor must be treated as the verdict of a properly instructed jury.</p>

<p>1. Master and Servant — Mine Props — Trial—Questions for Jury. — ■ In an action for damages for the death of an employe, who, while drawing pillars in a mine, was struck by falling slate, there being evidence that the accident was due to the failure of the defendant to supply props in the mine, or within a reasonable distance therefrom, as required by section 2739b, subsection 7, Kentucky Statutes (Ed. 1909), the question was for the jury.</p> <p>2. Master and Servant — Contributory Negligence — Question for Jury. —In an action for damages for the death of a miner, due to falling slate, where there was evidence that the deceased, before going under the slate to remove the coal, tested the slate and was also assured by his helper, an experienced miner, that it was safe to go under it, the question of his contributory negligence was for the jury.</p> <p>3. Master and Servant — Mine Props — Pleadings.—In an action for damages for the death of a miner due to failure of the operator to furnish props, an allegation of the petition that the defendant negligently failed to furnish props and violated its statutory duty in reference thereto, while not as specific as it should be, includes the duty of providing as well as furnishing props, and is sufficient to charge violation of duty to furnish props as imposed upon defendant by section 2739b, subsection 7, Kentucky Statutes (Ed. 1909).</p>

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

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

<p>1. ' Waters and Water Courses — Measure of Damages for Obstructing. — Where the lower proprietor, by the erection of a dam across a natural outlet of water, so obstructs or interferes with the ordinary flow of water as to injure the upper or adjacent owners, lie is liable in damages for the injuries so sustained.</p> <p>2. Contracts — Sub-contractor—Substitution of Parties — When Action by Contractor for Dam’ages Against Sub-contractor Will Not Lie. —Where a city entered into a contract with “C” to improve a water course, and “C” let a part of the work to “A & S” under a contract providing that “A & S” would be responsible to “C”' for any damages the city might recover against “C” for the failure of “A & S” to do the work according to contract, “C” could not maintain an action against “A & S” for a breach of the contract until the city had 'sought to make him liable.</p>

<p>1. Licenses — Interstate Commerce — Constitutionality of Ordinance.— A person employed in distributing samples of merchandise and advertising matter, sent to him by a non-resident corporation for that purpose, is not engaged in interstate commerce so as to make an ordinance imposing a license tax on such business unconstitutional on the ground that it is an unjust burden .on such commerce.</p> <p>2. ' Licenses — Constitutionality of Ordinance — Uniformity of Taxation —Unjust Discrimination. — An ordinance imposing a license tax on persons engaged in posting, distributing or tacking bills, placards or other printed matter, "or samples of merchandise, but providing that it shall not apply to resident merchants and others, is unconstitutional oji the ground that it discriminates against nonresidents.</p>

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

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

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

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

<p>1. Husband land Wife — Divorce—Settlement.—Where husband and wife, after the institution of a divorce suit and the attachment of the property of the husband, enter into a compromise settling the lawsuit and1 property rights, and the husband turns over to the wife valuable real estate and personal property, and the wife executes to him a promissory note las consideration therefor, and afterwards divorce is granted, the wife receiving and'accepting the benefits of the compromise will not be permitted to defeat a recovery upon the note where it appears that the settlement was fair and equitable as to her, and she acquiesced in it for several years before the commencement of the ’action.</p> <p>2. Executors and Administrators — Husband and Wife — Claim of Wife for Services. — Where the father-in-law lives with the husband and wife as a member of the family for ten years, and after the separation of husband and wife, continues to make his home with the wife at her request as a member of the family, the wife’s claim for board and care of the father-in-law, after his demise, will be denied1 where an express contract to pay for such board and care by the deceased is not made manifest.</p> <p>3. Executors and Administrators — Contracts—Claim for Board for Member of Family. — Where one of kin to a family resides in the household as a member of the family, the, presumption will be indulged that they all live together by mutual consent as one family, and no recovery will be allowed for board and1 care of such person unless it clearly appear that a contract to such effect exist.</p>

<p>Principal and Surety — Release of Lien or Levy on Property of Surety — Release of Co-surety. — Where a creditor having an execution lien on the property of a surety, discharges the lien, or after the levy of the execution, notifies the sheriff to take no further steps, and thereby loses his lien, a co-surety is discharged to the extent of the equitable proportion of the debt due from him whose property is released, which as between the two is one-half of the execution debt and costs, and to this extent the co-surety so discharged may enjoin the collection of the judgment on which the execution issued.</p>

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

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

<p>Appeal from G-arrard Circuit Court.</p>

<p>1. Appeal and Eror — Bill of Exceptions. — Complaint of the verdict of the jury resulting on the trial of an issue out of chancery, will not be considered on appeal, in the absence of a bill of exceptions containing the evidence introduced on the trial of the issue.</p> <p>2. Judgment — Estoppel by Judgment. — To constitute a judgment, anestoppel, there must be an identity of parties, as well as the subject matter; that is, it is necessary that the parties as between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such former action.</p> <p>3. Judgment — Liens—Parties.—Persons having liens upon or claims to property which is the subject matter of an action, or rights of action against' one or more of the parties thereto, are not bound by the judgment if they were not made parties to the suit, although ' their claims were brought into issue in such action or although their rights depend upon the same transaction or facts which were litigated or decided in that action.</p> <p>4. Estoppel — Estoppel by Judgment. — It is a rule that estoppels must be mutual; and, therefore, a party will not be concluded, against his contention, by a former judgment, unless he could have used it as a protection, or as a foundation of his claim, h'ad the judgment been the other way; and conversely, no person can claim the benefit of a judgment as an estoppel upon his adversary unless he would have been prejudiced by a contrary decision of the ease.</p> <p>5. Continuance — Continuance at Appearance Term. — Under sections 366 and 367a, Civil Code, the plaintiff in an equitable action is entitled to a submission and trial at the appearance term in two states of case: (1) If no pleading is filed by defendant raising an issue of fact; (2) if the plaintiff consent of record that the statements of the answer, if one be filed, may be taken as true. Where neither state of case indicated exists, the defendant upon filing his answer at the appearance term, is entitled to a continuance for the purpose of taking proof in the form of depositions, and the refusal to him of such continuance by the court will constitute reversible error.</p>

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

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

<p>Ejectment — Outstanding Title as Defense-Common Source of Title. — Though plaintiffs and defendants both claim through a common source, pleading and proof of an outstanding superior patent with which defendants connect their title, will defeat a recovery by plaintiffs of that portion of the land covered by such superior patent.</p>

<p>1. Elections — Record of State Board of Election Commissioners Showing That Returns Were Canvassed. — A record of the state board of election commissioners reciting that “It appearing from the certificates returned that R. S. Rose received the highest number of votes for the Republican nomination for circuit judge,” shows that the returns were canvassed and the result of the election ascertained and determined by the board, although no certificate of election was then issued.</p> <p>2. Elections — State Board of Election Commissioners — Powers and Duties of. — When it has been ascertained and determined by the board that a candidate has received a majority of the votes cast at an election, the board has no discretion to exercise as to whether they will issue the certificate of nomination or election to him; they must issue it. They have no power or authority to go behind the election returns or to question their verity or validity.</p> <p>3. Appeal and Error — Case Must be Tried on Record Made up in Lower Court — Papers Cannot be Filed Here for the First Time.— Affidavits attempting to impeach the verity of the records of a board of election commissioners filed for the first time in this court are not entitled to any consideration. This court must decide cases upon the record as it is made up in the lower court, and this record cannot be added to or supplemented by papers or documents tendered in this court for the first time.</p> <p>4. Elections — Contested Elections — Special Demurrer to Jurisdiction of Court. — The contestee may by a special demurrer, and without entering his appearance, question the jurisdiction of the court over his person, or over the subject matter of the action, or over both.</p> <p>5. Elections — Contested Elections — Time When Notice of .Contest Must be Executed. — A notice of contest must be given within five days from the time the board of election commissioners have ascertained from canvassing the votes who received a majority, although the certificate of nomination may not be issued on that day. The five days begin to run not from the time the certificate is issued, but from the time when the board has ascertained and determined by a canvass of the votes who has received a majority.</p> <p>6. .Elections — Contested Elections — Giving of Notice of Contest in Proper Time Jurisdictional Fact. — The giving of the notice of contest within the time prescribed by the statute is a jurisdictional prerequisite, and if the notice is not given within this time the circuit court has no jurisdiction to hear or determine the case.</p> <p>7. Elections — Contested Elections — Presumption as to When Vote was Canvassed by Board. — When a notice of contest does not show on its face when the board of election commissioners canvassed the election returns, the legal presumption is that.they performed this duty on the day designated by the statute.</p> <p>8. Elections — Contested Elections — When Question as to Jurisdiction of Court May Be Raised. — Whether the contestee may raise at any time the question of the jurisdiction of the court, or whether he will be deemed to have waived his right to so object by failing to make his objection in seasonable time, is a question not decided.</p> <p>9. Elections — Contested Elections — Demurrers, Motions, Pleadings, and Responses — When Must Be Piled — When a judge is present on the day the contestee is required to respond, he should file in court all motions, demurrers and pleadings, and the contestant should likewise file in court such pleadings, motions and demurrers as he desires to file. But if a judge is not present on the day the contestee must answer, he should file such demurrers, motions and pleadings in the clerk’s office of the circuit court, and within the time allowed by the statute, and the contestant should likewise file in the same office and within the time allowed such motions, demurrers and pleadings as he desires to file.</p> <p>10. Elections — Contested Elections — When and How Evidence Must be Taken. — If a judge is present when the issues are made up, the evidence should be taken in such manner as he may direct, as provided in subsection 28 of section 1550 of the statutes; but if the judge is not present when the issues are made up, the contestant should immediately begin to take his evidence by depositions and complete his proof'within the time allowed by the statute, and the contestee should take his evidence in the same manner within the time allowed, and when the evidence, on account of the absence of a judge, is so taken, the judge whq hears *the case should permit it to be read, subject to exceptions for lack of competency.</p> <p>11. Elections — Contested Elections — Piling Answer or Other Pleadings in Clerk’s Office Will Not Waive Demurrer ,or Other Preliminary Motions. — If, on account of the absence of a judge, the contestee must file his answer in the clerk’s office, he will not by so doing waive his right to rely upon demurrers or motions that he has filed before or simultaneously with his answer; and neither will the contestant in filing his reply be deemed to have waived any preliminary motions that he may have filed with his reply.</p> <p>12. Elections — Contested Elections — Place Where Notice of Contest Should Require Contestee to Answer. — The place where the contestee must answer is the clerk’s office of the circuit court of the county in which the proceeding is instituted, and this is the place where all subsequent motions, pleadings and demurrers hy both parties must be filed when the court is not in session.</p>

<p>1. Ejectment — Verdict Need Not Describe Land. — A verdict of the jury in ejectment suits need not in itself describe the land involved, and if it is sufficient for the court to determine the real intention of the jury a judgment describing the land may be pronounced upon it and the judgment will be sufficient, altbougb it might not identify the land, if sucb identification can be found in the records of the suit.</p> <p>2. Boundaries — Report of Processioners. — the report of processioners made at the instance of a landowner under the provisions of section 2368 of the Kentucky Statutes after notice given to the adjoining owner, and the report filed as provided by section -2374 of the Kentucky Statutes, is prima facie evidence of the true location of the line, as well as natural objects forming corners, &c., but sucb report is not evidence of extrinsic matters not coming within the duties of the processioners, sucb as agreements between the parties as to the true location of the dividing lines, and it is erroneous to admit before the jury statements in the report containing sucb extrinsic matters.</p> <p>3. Evidence — Report of Processioners. — Objections to incompetent . testimony must specifically point it out, and a general objection to evidence in its entirety, as to an entire deposition, or an entire writing, will not avail as to incompetent portions of the evidence, unless sucb incompetent portions are specifically objected to; and where a report of processioners contained both competent and incompetent matter, a general objection to the entire report is not sufficient to raise the error in the admission of the incompetent parts.</p>

<p>1. Vendor and Purchaser — Bona Fide Purchaser — Deed as Mortgage. • — A purchaser for value from the vendee in a deed absolute on its face, but in fact a mortgage, cannot be evicted by the vendor in the deed, unless he had notice of the secret defeasance.</p> <p>2. Vendor and Purchaser — Action Against Bona Fide Purchaser— Pleading. — In order to evict a purchaser for value from vendee in a deed absolute on its face, but in fact a mortgage, the plaintiff in the action must allege and prove, not only the secret de. feasance, but also that the purchaser had knowledge of it.</p> <p>3. Mortgages — Deed as Mortgage — Evidence.—Evidence held to show that a deed, absolute on its face, was executed and delivered under parol agreement to secure a debt and to reconvey the land to vendor’s wife.</p> <p>4. Vendor and Purchaser — Records—Notice.—The record of a will under which there is a devise of land conveyed by the testator prior to execution and probation of will, by a deed absolute on its face, but in fact a mortgage, is not notice to the purchaser from the vendee in the deed of its secret defeasance.</p> <p>6. Vendor and Purchaser — Duty of Purchaser. — Where a purchaser for value inspects the records where evidence of title and encumbrances should be recorded and finds nothing certainly informing him of any outstanding equity, his vendor being in possession, he is protected against such equity.</p> <p>6. Vendor and Purchaser — Bona Fide Purchaser — Evidence.—Evidence held to show that the purchaser from the vendee in a deed absolute on its face, but in fact a mortgage, did not have notice of the secret defeasance.</p>

<p>1. Master and Servant — Injury to Servant — Negligence—Evidence.— Evidence beld insufficient to show that a defect in a brake on a lever ear by -which plaintiff was run over was the proximate cause of his injury.</p> <p>2. Appeal and Error — Evidence—Exclusion—Prejudicial Error.— Where in a servant’s action for personal injuries, the trial court directs a verdict in favor of the defendant, the improper exclusion of evidence is not prejudicial error, when, if it had been admitted, plaintiff still would have failed to make out his case.</p>

<p>1. Wills — Construction, of — Defeasible Pee — Vested Estate. — Where a testator gave to his wife his entire estate for life and the right to use as much of it as she pleased, with remainder in fee to his daughter, the daughter took a defeasible fee; but she had a vested estate in the property from the death of the testator, subject to the provision for his wife.</p> <p>2. Husband and Wife — Interest of Husband in Deceased Wife’s Estate. — Where a daughter died before her mother the owner of a vested interest in remainder in personal estate, subject to tbe right of her mother to use all or such part of it as she pleased, the husband of the daughter on the death of the mother took, under section 2132 of the statutes, one-half of the surplus personalty left by his wife. The fact that the interest of the daughter was subject to be defeated or diminished by the use of the whole or some part of the estate by the mother did not divest the estate of its character as a vested estate.</p> <p>3. Husband and Wife — Right of Husband to Share in Wife’s Personal Estate. — Under section 2132 of the statutes, the surviving husband is entitled to one-half of the personal property in which his wife at the time of her death had a vested estate.</p> <p>4. Husband and Wife — Interest of Husband in Separate Estate of Wife. — Where a testator devised to his daughter his estate to be held by her as a separate estate, free from the use and control of any husband she might have, this provision did not deprive the husband of his statutory interest in it after her death.</p> <p>5. Husband and Wife — -Separate Estate — Words Excluding Marital Rights of Husband.- — Where a separate estate is created for a married woman and she dies, if there are no words excluding the husband, he takes his marital rights in the property to the exclusion of the descendants or collateral heirs.</p>

<p>Divorce — Living Apart for Five Years Without Cohabitation — Insanity of Husband — Effect.—“Living apart without cohabitation for five consecutive years next before the application” is not ground for divorce in a suit by the wife where the separation was due entirely to the insanity of the husband and his consequent confinement in the asylum.</p>

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

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

<p>1. Elections — Statement of Expenses Must Be Filed by Campaign Committee or Persons in Charge of Campaign Before Certificate ' of Election or Nomination Can Be Issued.^-Under section six of the corrupt practice act (Acts of 1916), every candidate, or campaign committee, or person in charge of campaign, must within thirty days after the election file a statement of expenses, as provided in the act, and no certificate of election or nomination can be issued until such statement has been filed.</p> <p>2. Elections — Campaign Committee or Persons in Charge of Campaign Defined. — Whenever a candidate or a group of candidates has a designated campaign committee or person or persons in charge of his or their campaign, then such person or persons must file the statement mentioned in the corrupt practice act, but persons who in their individual capacity and not as members of a campaign committee, or persons not in charge of a campaign, who contribute to a campaign or support a candidate or exert themselves to secure his success, need not file such statement, as they are not to be regarded as campaign managers.</p> <p>3. Elections — Campaign Committees — Evidence as to Who Are.— Evidence that persons supporting a candidate expended money in his behalf, or exerted themselves in his behalf, is competent as showing in a circumstantial way that they were in charge of his campaign or constituted his campaign committee, but this evidence alone is not sufficient to show that they were such committee or were in charge of the campaign.</p> <p>4. Elections — Injunctions—Board of Election Commissioners May Be Compelled by a Mandatory Injunction or by a Mandamus to Issue Certificate. — When a candidate is entitled to a certificate of nomination or election, he may by mandamus or mandatory injunction, whichever will more speedily accomplish the desired result, compel the election commissioners to issue him the certificate.</p> <p>5. Injunction — Injunction Bond — When Deemed to Have Been Executed. — Although the order granting the injunction does not, as provided in section 278 of the Civil Code, fix the amount of the bond that should be executed or prescribe its terms, if, in fact, a bond was executed in proper time and manner, it will be sufficient.</p>

<p>1. Appeal and Error — Quieting Title — Form of Judgment. — In an action to quiet title, a defendant, who has failed to establish in himself title to any part of the land, cannot complain that the judgment upon an issue between other parties orders a sale of the land; or that plaintiff, who had shown his right to an undivided part of it only, was adjudged the whole of the land.</p> <p>2. Quieting Title — Evidence—Vendor and • Purchaser — Notice.—In an action to quiet title, title bonds and deeds of plaintiff, executed by the heirs of a common grantor, held to prevail over an alleged lost title bond of such grantor and alleged lost deed of his heirs to defendants, where neither was recorded, and where there was no proof of notice to plaintiff or to his vendors, of the existence of the unrecorded title bond and deed, or of their prior execution and delivery, or of the parties to the deed.</p> <p>3. Appeal and Error — Evidence—Judgment.—In an action to quiet title, evidence held, as against the parties appealing, to support the judgment of the chancellor adjudging title to land in plaintiff.</p>

<p>Response to Petitions for Rehearing.</p>

<p>1. Subrogation — Nature and Theory of. Right. — The equitable doctrine of subrogation is the substitution of a new for an old creditor, or, in its more general sense, the act of putting by a transfer one person in the place of another, or a thing in the place of another thing. By the transfer the substituted or new creditor is subrogated to all the rights of the original creditor.</p> <p>2. Subrogation — Nature and Theory of .Right. — The doctrine of subrogation is a pure, unmixed equity and rests not upon contract, but upon the principles of natural justice.</p> <p>3. Subrogation — Limitations to Doctrine. — There are two definite limitations to the doctrine of subrogation; first, a surety is not entitled to subrogation until he has paid the debt of his principal; and, secondly, a volunteer is not so entitled.</p> <p>4. Subrogation — Nature and Theory of Right. — Generally speaking the right of subrogation will arise only in cases (1) where the party claiming it has advanced money to pay a debt, which in the event of default by the debtor he would be bound to pay; or (2) where he had some interest to protect; or (3) where he advanced money under an agreement, express or implied, made either with the debtor or the creditor that he should be subrogated to the rights'and remedies of the creditor.</p> <p>5. Subrogation — Sureties or Guarantors. — Where the bond of a contractor doing work for a county provided that in case the contractor should fail to complete the work the surety on his bond might finish the work and receive from the county the retained percentage due the contractor at the time of his default, and the surety did so complete the work, he acquired an equitable assignment to the retained percentage which related back to the execution of the bond and was superior to the claims of the creditors of the contractor who subsequently levied attachments upon the retained percentage in the hands of the county.</p>

<p>1. Appeal and Error — Necessity oí Bill of Exceptions. — In the absence of a bill of exceptions giving the evidence and the instructions of the court to the jury, it will be presumed that the case was tried upon its merits; that no evidence was admitted over the appellant’s objection, and that he offered none that was ■ excluded; that he asked no instruction that was refused and objected to none that was given;- and that the evidence supports the verdict.</p> <p>2. Appeal and Error — Necessity of Bill of Exceptions. — In the absence of a bill of exceptions containing the evidence and instructions the only question to be determined upon appeal is whether the pleadings support the verdict and judgment.</p> <p>3. Trial — Verdict.—A verdict is the answer of a jury given to the court concerning the shatters of fact committed to their trial and examination; it makes no precedent, and settles nothing but the immediate controversy to which it relates. If it decides the question in issue in such a way as to enable the court intelligently to base a judgment thereon, it is sufficient in form.</p> <p>4. Trial — Verdict—Objection to Form. — If a verdict is irregular in form and either party desires to have it m'ade more specific, be should ask to have it so made before the jury is discharged; allowing the jury to be discharged without objection and without motion to have them correct or extend their verdict, will be deemed a waiver of formal defects in it.</p>

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

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

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

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

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

<p>1, Adverse Possession — Burden oí Proof. — In an action to recover land where the defendant is in the actual adverse possession, holding under color of title, the plaintiff has the burden and must recover, if at all, upon the strength of his own title, and not the incompleteness of the title of his adversary.</p> <p>2. Adverse Possession — Right of One in Adverse Possession.- — A defendant in the adverse possession of land may successfully defend against any and all persons, except the rightful owner, and this though the defendant himself be a mere trespasser.</p>

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

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

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

<p>1. Railroads — Crossing Accident — Negligence—Question for Jury. — In an action for injuries received in a railroad crossing accident, evidence considered and beld that the question whether plaintiff was injured by the negligence of the defendant was for the jury.</p> <p>2. Railroads — Crossing Accident — Care Required — Instructions.-—In an action for personal injuries- at a railroad crossing, an instruction telling the jury that it was the duty of the defendant to keep a reasonable lookout ahead for persons wbo were using the crossing, to give reasonable warning of the approach of the train and to have the headlight on the engine lighted, instead of telling the jury that it was the duty of the defendant to use ordinary care to perform these duties, is not subject to criticism on that account where the defendant failed to show any circumstance which rendered the performance of such duties either impossible or more difficult than usual.</p> <p>3. Railroads — Crossing Accident — Instructions.—An offered instruction is properly refused where the question submitted is fully covered by a given instruction.</p> <p>4. Trial — Instructions—Issues—Conformity of Issues. — Where the pleading in a personal injury action did not raise the issue that the plaintiff aggravated the damages by bis own acts subsequent to the accident, it was not error to refuse an instruction submitting that issue.</p>

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

<p>Contracts. — Evidence examined and found insufficient to show contract was entered into.</p>

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

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

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

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

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

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

<p>1. Limitation of Actions — Necessity for Pleading. — A statute of limitation is not available on demurrer, but, to be taken advantage of, must be pleaded.</p> <p>2. Pleading — Exhibit—Evidence.—A report to the Governor by the State Inspector and Examiner upon the affairs and accounts of the State Board of Health has no evidential value; and cannot aid either party upon consideration of a demurrer to the petition, with which it is filed as an exhibit.</p> <p>3. States — Health—Pees for Physician’s Certificates. — By an act of May 24, 1890, and amendment thereto increasing amount of fees, approved March 18, 1904, fees derived by the State Board of Health from physicians’ licenses are the property of the Commonwealth, entrusted to the board to be administered as are its annual appropriations.</p> <p>4. States — Officers — Public Funds — Irregularities. — The Commonwealth cannot, after disbursement, recover of an officer public funds expended by him for purposes authorized by law, even though they were collected and disbursed in an illegal manner.</p> <p>5. Officers — Diversion of Public Funds — Pleading—Petition.—In a civil action by the Commonwealth against the Secretary of the State Board of Health for alleged diversion of public funds, allegations of irregularity in the manner of their collection by the board and of payments thereof made or permitted by the defendant, do not state a cause of action.</p> <p>6. Officers — Diversion of Public Funds — Pleading.—In a civil action by the Commonwealth against the secretary of the State Board of Health to recover the amount of public funds paid to attorneys-at-law, employed by the board to represent it, allegations that such payments were made by defendant, in violation of his trust as an officer of the state and of the board, in violation of law and without warrant therefor, are mere conclusions of law and do not state a cause of action against the defendant.</p> <p>7. Attorney and Client — Officers—Action—Pleading Statute. — While county attorneys, Commonwealth attorneys, and the Attorney General are the legal advisers and representatives of the State Board of .Health, other counsel may be employed for them by the Governor upon request, and statement of the necessity therefor, made to him by the Attorney General; and, in a civil action by the Commonwealth against the secretary of the board to recover the amount of public funds paid to special counsel, their employment by the Governor must be negatived in the petition.</p> <p>8. Officers — Diversion of Public Funds — Action—Pleading—Petition. —In a civil action against the secretary of the State Board of Health to recover the amount of public funds paid to members of the board, the law permitting members of the board to be paid for certain of their services out of funds entrusted to the board, allegations that defendant paid or allowed to be paid such sums to the members of the board, in violation of his trust as an officer and in violation of law, do not state a cause of action.</p> <p>9. Officers — Diversion of Public Funds — Action—Pleading.—In a civil action by the Commonwealth against the Secretary of the State Board of Health for alleged diversion of public funds, a charge that the defendant appropriated to his own use and benefit certain public funds, specifically described, sufficiently stated a cause of action against him.</p> <p>10. Officers — Diversion of Public Funds — Action—Pleading.—In a civil action by the Commonwealth against the secretary of the State Board of Health for alleged diversion of public funds, failure to describe the fund so that it may be identified renders the petition bad upon demurrer.</p> <p>11. Officers — Diversion of Public Funds — Action—Pleading.—In a civil action by the Commonwealth against the secretary of State Board of Health, for alleged diversion of public funds, under an agreement between him and the members of the board to divide among themselves the surplus of the fees arising from physicians’ certificates, failure to show that there was a surplus or that ány of it was distributed as agreed renders the petition bad upon demurrer.</p>

<p>1. Master and Servant — Evidence—Rules—Parol Evidence as to Meaning of. — Generally speaking, written rules are the best evidence, but if the witnesses introduced by the plaintiff have not read the rules and cannot say that a book of rules exhibited contains the rules promulgated by the company, then they may, if qualified to speak on the subject, do so independent of the written rules.</p> <p>2. Master and Servant — Rules of Master — Evidence as to. — Where it appears that a book of rules was not introduced by the plaintiff because the witnesses did not know what such a book contained on the subject under investigation, the witnesses, if qualified from experience or observation to testify on the subject, had the right to do so independent of the written rules.</p> <p>3. Master and Servant — rLiability of Master for Death of Servant Caused by Failure of Engineer to Observe Flag. — Where a flag was put out to protect a crew of section men, but the engineer paid no attention to the flag and did not give warning of the approach of the train or reduce its speed, the company was liable in damages for the death of one of the section men who was killed by the negligence of the engineer.</p> <p>4. Master and Servant — Liability of Master "Where Servant Put in Peril by Negligence of Master Had Two Means of Escape But Adopted Wrong One. — Where a section-hand was put in peril by the negligence of the company, he was only required to exercise in an effort to escape the danger such care as a person of ordinary; prudence would have exercised.</p> <p>5. Death — Damages—Instructions on Measure of — Present Value — 1 Federal Employers’ Liability Act. — Where an instruction did not lay down any criterion by which the present cash value of damages should be fixed, but did direct that the assessment should be equivalent to the present cash value of the pecuniary loss, it was sufficient.</p> <p>6. Appeal and Error — Instructions—Error In Not Grounds for Reversal Unless Prejudicial. — An erroneous instruction given by the court will not be reversible error unless it appears that the giving of it was prejudicial to the substantial rights of the complaining party.</p> <p>7. Appeal and Error — Death—Damages—Error in Instructions — When Not Prejudicial. — Where the damages assessed by the jury are not excessive, an instruction on the subject of damages, although eri’oneous, will not constitute reversible error.</p>

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

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

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

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

<p>Constitutional Law — Impairing Obligation of Contracts — Attorney and Client. — A contract made by an attorney to prosecute a claim against the United States government for a fee equal to fifty percent of the amount recovered, is a valid and enforceable contract; and, an act of Congress appropriating money to pay the claim (wbicb bad theretofore been judicially determined to be' valid), providing that it should be unlawful for the attorney to receive more than twenty per cent, of the amount appropriated, as an attorney fee, was, in so far as it attempted to limit the amount of the fee already earned, unconstitutional and invalid.</p>

<p>1. Bills and Notes — Negotiable Instruments Law — Endorsers.—Section 19, Negotiable Instrument Law, which provides that before a party to a negotiable instrument can be bound by his signature thereon, by an agent, that the agent must have authority in writing, includes an endorser.</p> <p>2. Banks and Banking — Cheeks—Action to Recover From Banks. — ■ Where the drawer of a check does not suffer any injury by its payment by the bank upon which it is drawn, the mere fact that the endorsement of the payee of the check was made thereon by an agent, without authority in writing from the payee to make the endorsement, does not give the drawer any right of action to recover the amount of the check from the bank.</p> <p>3. Banks and Banking — Payment Upon Forged Endosement of Check. —The relations of a depositor and a bank are those of creditor and debtor, and the bank pays out funds of the depositor upon a forged endorsement of a check, at its peril, but the fact that funds are paid out upon a forged endorsement of a check will not give the drawer of the check a cause of action against the bank, unless the drawer suffers injury by the payment of the check to a person, other than his creditor, or in some other way.</p> <p>4. Banks and Banking — Delivery of Check — Alteration.'—"Where a drawer executes and delivers a check, which is a completed instrument, and it is thereafter materially altered, by raising the amount for which it was drawn, without the assent of the drawer, it becomes void, as to the drawer, except to the extent of the sum for which it was drawn by him, although in the hands of a bona fide holder, in due course.</p> <p>6. Bills and Notes — Liability of Drawer for Fraudulent Alterations— Negotiable Instruments Law. — The rule, that the drawer of a check must suffer the loss occasioned by a fraudulent alteration of it, if he had negligently drawn it, leaving blank spaces wherein words and figures could be inserted, without leaving any mark, which would excite the suspicions of a reasonably careful man, and some one had embraced the opportunity and inserted other words and figures, which materially altered the check, has been changed by the provisions of section 124, of the Negotiable Instrument Law, when applied to a check, which is a completed instrument at the time of its delivery.</p> <p>6. Bills and Notes — Filling Blanks — Negotiable Instruments Law. — • Sections 13 and 14, Negotiable Instrument Law, define the instances, in which holders and persons in possession of incompleted negotiable instruments may lawfully fill up the blank spaces in such instruments.</p>

<p>1. Taxation — -Assessment of Property.- — Where a taxpayer lists his property at a valuation greater than required by law and does not thereafter complain of such valuation before the Board of Supervisors or Equalization, and without objection or protest pays the tax upon the assessment, he will not be heard to complain.</p> <p>2. Municipal Corporations — Taxation—City Council Without Authority to Release. — A city council has no authority by ordinance or otherwise to release a taxpayer in whole, or in part, of the taxes due by such taxpayer.</p> <p>3. Municipal Corporations — Taxation — Excessive Assessment by Bank — Release by City — Proceeding to Collect. — Where a bank lists its property in excess of the amount for which it might lawfully have listed it but makes no complaint of its valuation, and the tax books are made up and tax bill rendered to and paid by the bank without objection or protest, and in the following year when the next tax bill is due the bank claims to have discovered that it by mistake listed its property at a greater valuation than was required, and presents the matter to the city council and procures an order from that body directing the collector of taxes to credit the tax bill of the bank with the amount estimated to have been paid in excess of the correct amount for the previous year, and this credit is given by the collector, the city is not estopped thereafter to institute and maintain an action to recover the balance of the taxes due and which was attempted to be remitted by the council, because the ordinance or resolution attempting to expunge the taxes pro tanto was ultra vires and void.</p>

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

<p>1. Appeal and Error — Right of Appeal — Acquiescence.—Acquiescence must be clear, unconditional, voluntary and absolute to bar the right of appeal.</p> <p>2. Wills — Curtesy—Election by Husband. — In the absence of a statute, there is no presumption that a devise by the wife to the husband is intended in lieu of curtesy and a husband is not required to elect between the devise and curtesy in his wife’s undevised estate, unless such intention is clearly expressed in the will or necessarily; inferable therefrom,</p> <p>S.Husband and Wife — Tenant by Curtesy — Liability for Rents.— Where a husband is entitled to curtesy in his wife’s undevised estate, he is not liable to his children for rents accruing after the death of his -wife.</p> <p>4. Husband and Wife — Principal and Surety — Suretyship of Husband —Liability—Sale of His Property. — Where the husband is entitled both to the property devised by his wife’s will and to curtesy in her undevised estate, it is error on the petition of his daughter to sell the property devised, for the purpose of discharging certain mortgages on both the devised and undevised estate on the theory that he was a mere surety of his wife, and as between him and his children, the devised property was primarily liable for such debts.</p> <p>5. Judicial Sales — Sale Under Answer and Cross-petition — When Not Authorized. — A sale under the answer and cross-petition of a mortgagee is not authorized when not asked.</p> <p>6. Appeal and Error — Judicial Sales — Reversal of Judgment — Effect on Party Not Asking Sale — Costs.—A reversal of a judgment of sale unauthorized by the petition, will not place any part of the costs on a mortgagee who in response to a rule merely set up her lien and prayed the protection of the court without asking that the property be sold.</p> <p>7. Appeal and Error — Judicial Sale — Sale Unauthorized by Petition— Sale Under Answer, Counter-claim and Cross-petition — Reversal.— Where a judicial sale was authorized by the answer, counterclaim, and cross-petition of a mortgagee, the judgment of sale will not be reversed because unauthorized by the petition.</p>

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

<p>1. Master and Servant — Interstate Commerce — Federal Employers’ Liability Act. — As station water t'anks owned by an interstate railroad company are used in interstate, as well as intrastate commerce, an employe injured by the falling of a scaffold upon wbicb be was standing while repairing and painting a station tank of such railroad company, if caused by the negligence of its foreman in furnishing him a defective rope for supporting the scaffold, the breaking of which caused it to fall, is entitled to maintain an action under the Federal Employers’ Liability Act to recover of the r'ailroad company damages for bis injuries.</p> <p>2. Master and Servant — Safe Place to Work — Negligence.—In such state of case it was the duty of the railroad company to use ordinary care to furnish the employe a reasonably safe place to work and reasonably safe appliances with wbicb to perform it; and if his injuries resulted from the negligence of the railroad company’s foreman in furnishing him a defective and unsafe rope for supporting the scaffold, wbicb broke and caused the scaffold to fall, the employe, in the matter of receiving bis injuries, did not assume the risk incident to bis use of the scaffold, unless be knew'of the defective and unsafe condition of the rope, or its defective and unsafe condition was so obvious that a person of ordinary intelligence situated as he was must have known it, and, notwithstanding such knowledge or means of knowledge, he continued the use of the scaffold.</p> <p>3. Master and Servant — Assumption of Risk — Damages.—Although the employe may not have known that the rope was not reasonably safe to support the scaffold, and its defective and unsafe condition was not so obvious that a person of ordinary intelligence, situated as he was, could have discovered it, if on the day of the accident, and previous to its' occurrence, he was informed by the railroad company’s foreman that the rope was an old one and might break and cause someone to get hurt if more than two persons got on the scaffold at one time, but notwithstanding such information he did get upon the scaffold with two of his fellow workmen and thereby caused the rope to break and the scaffold to fall and produce his injuries, he did assume the risk incident to •such use of the scaffold, and in such event would not be entitled to recover of the railroad company damages.</p> <p>4. Master and Servant — Assumption of Risk — Federal Employers’ Liability Act. — The assumption of risk is a rule of the common law, that is based on contract, and, by implication, on a servant’s act in voluntarily exposing himself to danger. The fact' that an injured employe of a railroad company sues under the Federal Employers’ Liability Act to recover of the railroad company for his injuries, will not prevent the latter from relying upon the defense of assumption of risk, if the injuries were caused by the breaking of a defective rope supporting a scaffold upon which the employe was standing in repairing or painting a station water tank. The federal statute only abolishes the assumption of risk as a bar to an action against a railroad company by the employe for injuries attributable to defective appliances upon or connected with the trains of the railroad company, and neither a water tank, rope, nor scaffold is an appliance within the meaning of the statute.</p> <p>5. Master and Servant — Res Ipsa • Loquitur — Negligence—Question for Jury. — While, ordinarily, the doctrine of res ipsa loquitur does not apply as between master and servant, except in a modified form, where the accident causing injury to the servant results from defective conditions, which can be explained upon no reasonable assumption other than negligence, and circumstances appear, independent of the accident itself, indicating negligence on the part of the master, in such event there is sufficient proof to authorize the submission of the question of the latter’s negligence to the jury.</p>

<p>Appeal and Error — Review.—A judgment will not be reversed on account oí errors in the instructions to the jury when the interests of tbe complaining party have not-been prejudiced thereby.</p>

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

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

<p>1. Trespass — Action—Evidence.—Where both -parties to an action for trespass to lands claim under a common holder, -whose lands were partitioned by suit, a deed to one party for part of the lands, antedating the judgment in such suit, is inadmissible to show title, because precluded by the judgment in the partition suit.</p> <p>2. Tenancy in Common — Trespass to Realty. — A co-tenant is entitled to injunction against other tenants in common to prevent the -cutting and removing of timber from lands jointly owned by them.</p> <p>3. Trespass — Action—Judgment.—In an action between tenants in -common for trespass upon a tract of timber land, to sell the timber -cut, and to distribute the proceeds of sale, it was error to adjudge to plaintiffs.the whole of such proceeds of sale.</p>

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

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

<p>1. Homicide — Dying .Declarations — Competency.—Whether or not a statement as to the manner of bis receiving a wound inflicted upon bis person by another, made by one whose death resulted from such wound, is competent as a dying declaration, is a question for the trial court to determine from the facts and circumstances of the particular case. To mate a dying declaration competent as evidence, it must be made when the declarant is in extremis and has given up all hope of recovery. But whether this be so or not may be determined, not only by what he may say, but by his evident danger and by all the surrounding circumstances. The injured party, however, need not in express words declare that he knows he is about to die.</p> <p>2. Homicide — Dying Declarations — Competency.—A statement from the deceased as to the manner in which he had been stabbed by the defendant, made to his father twenty-one days before his death of the wound, was properly held by the trial court incompetent as a dying declaration, where it was conclusively made to appear from the evidence as a whole, that the deceased had never been advised the wound would cause his death, and had not himself declared it to be his belief that he would not recover.</p> <p>3. Criminal Law — Evidence—Anti-Sweating Act. — Statements of one charged with crime of the facts connected with its commission, made to a policeman, following his arrest by the officer and while in his custody, may be proved by the testimony of the latter, provided that it clearly be made to appear from the evidence as a whole that the statements, were made of the defendant’s free will and accord with full knowledge on his part of their nature and consequences. Nor will the fact that such statements were made in response to questions from the officer, render proof of them by the latter incompetent, if the questions were neither so importunate nor coercive as to violate the statute known as the “Anti-Sweating Act.”</p>

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

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

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

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

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

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

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

<p>1. Adverse Possession — Boundaries.—Where one resides upon any part of a tract of land under a patent, deed or title bond bis possession will extend to the boundary contained in the patent, deed or title bond, insofar as the land is not adversely held in actual possession by another. The same would be true if his entry and possession were made and taken without written evidence of title, if his possession, actual and adverse to all others, continued for as much as fifteen years and was claimed all the while to the well defined, marked boundary embracing the whole.</p> <p>2. Adverse Possession — Title or Right Acquired. — It is also a well recognized rule of law that although one may claim title to land under a patent from the state, the patent will confer on him no legal title to the land, if another by a previous actual, adverse possession for fifteen years, acquired title thereto dehors a patent or deed.</p>

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

<p>1. Master and Servant&emdash;Safe Place&emdash;Duty of Mine Owner&emdash;Duty of Miner.&emdash;Where the uncontradicted evidence shows that the miner himself is charged with the duty of propping the roof or taking down the slate in his working place, the mine owner is under no duty to use ordinary care to furnish him a reasonably safe place for work. 2. Master and Servant&emdash;Liability of Master&emdash;Assurance of Safety.&emdash;</p> <p>When the master is under no duty to make the servant’s place of work reasonably safe but this duty devolves upon the servant himself, a mere assurance of safety is not of itsélf sufficient to impose liability cn the master. ROSE & HUFF for appellant. J. S. FORESTER and BROCK, BROCK &</p>

<p>' 1. Public Service Corporations — Supply to Private Consumers. —The general rule is that a public service company, furnishing gas, electricity, water, or telephone service may require that charges shall be paid for a reasonable term in advance, or be secured by a reasonable deposit by the consumer, and may enforce such a requirement by the refusal of service to persons who do not comply therewith.</p> <p>2. Gas — Supply to Private Consumers — Deposit.—A deposit required from a consumer of gas by a gas company to secure the payment of the consumer’s gas bill is not an increase in the rate which the consumer pays for gas, since the company holding the deposit is liable, for interest thereon to the depositor.</p> <p>3. Pleading — Practice—Parties.—Section 25 of the Civil Code of Practice which authorizes one person to sue for the benefit of all persons where the question involves a common or general interest, does not authorize one who makes a deposit with a gas company .to secure the payment of his gas bill to sue on behalf of all the depositors to recover their deposits.</p> <p>4. Contempt — Void Judgment. — Where a circuit court had no jurisdiction of the subject matter of a case out of which proceedings for contempt grew, a judgment punishing one for contempt • is void.</p> <p>5. Appeal and Error — An appeal lies in cases of civil contempt.</p>

<p>Contracts — Who May Maintain Action for Breach of. — Where “E” advanced money to “F” under an agreement between them that the money should be paid by “F” to “W” to discharge certain debts that “F” owed, and “W,” in taking the money, agreed with “F” that he would so apply it, if “W” violates his independent agreement with “F,” “E” cannot maintain an action against “W” for breach of his contract.</p>

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

<p>1. Cancellation of Instruments — Deeds—-Validity.—If a grantor at the time' of making a conveyance has sufficient capacity to comprehend the nature and effect of the act, the conveyance is valid, and may not be set aside on the ground of mental incapacity of the grantor.</p> <p>2. Cancellation of Instruments — Deeds—Undue Influence. — Undue influence which will invalidate a conveyance is such as to destroy free agency and to cause the grantor to do that which he would not otherwise do, but an appeal to the understanding and to reason ich do not destroy free agency is not undue influence.</p> <p>8. Cancellation of Instruments — Deeds — Validity. — Evidence exam- , ined and found that the deed attacked was not executed between persons occupying a confidential relation, nor was it obtained through undue influence, nor was the grantor mentally incapacitated to make it.</p>

<p>1. Criminal Law — Appeal by Commonwealth — Review.—The Commonwealth can appeal, in criminal cases, only from decisions of the trial court adverse to it. Hence, the question of the sufficiency of an indictment cannot be reviewed, where a demurrer thereto was overruled; or, where, at the close of all the evidence, demurrer was offered and not objected to and not passed upon by the trial court.</p> <p>2. Criminal Law — Forgery—Trial—Question for Jury. — In a prosecution for forgery, the evidence showing that accused, within a short time after requesting a loan and offering as sureties upon his note, Mary B. Conrad and Will Conrad, returned with the note signed with pencil,‘by Mary B. Conarden and Will Conardes, surrendered and received the proceeds thereof, knowing that same was a forgery, defendant was guilty of uttering a forged instrument, as denounced by section 1189, Kentucky Statutes, and it was error for the court to direct a verdict for the accused.</p> <p>3. Forgery — Elements—Uttering.—Uttering is offering a forged instrument, knowing it to be such, whether such offer is accepted or not, with a representation, by words or actions, that it is genuine, and with an intent to defraud.</p> <p>4. Forgery — Elements.—Forgery is the false making, or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability; and includes the unsuccessful attempt as well as the accomplished fraud.</p> <p>5. Forgery — Fictitious Names. — Forgery may be as well as of a mere fictitious name as that of a real person.</p> <p>6. Forgery — Likelihood to Deceive. — It is immaterial whether the forged signature so resembles the genuine as to be likely to deceive; the forger cannot claim immunity because the person cheated would not have been deceived, if he had been vigilant or careful.</p>

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

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

<p>1. Trial — Consideration of View or Inspection. — While trial courts may permit or require the physical examination before the jury of one of the parties, or to enable a physician to testify concerning his condition, yet it is not always the case that this may be claimed as a matter of right to the other party of applying a test to his opponent when to do so might endanger the health or physical condition of the one upon whom the test is performed.</p> <p>2. Trial — Evidence.-—Objections to testimony as a whole where parts of it are competent will not be sufficient to entitle the objector to complain of the admission of that which is competent.</p> <p>3. Continuance — Affidavit as to What Absent Witness Would Testify. — After a trial court has overruled a motion for a continuance based upon the absence of a witness and the filing of an affidavit as to what his testimony would be upon condition that the affidavit might be read as the testimony of the absent witness, it was error not to permit competent and. relevant portions of the affidavit to be read to the jury as the testimony of the absent witness.</p> <p>4. New Trial — Argument of Counsel — Evidence.-—Attorneys should not get before the jury irrelevant and incompetent facts, either through the asking of questions or argument to the jury, and while in some cases a withdrawal of the question or the argument if Improperly indulged in will suffice, where-the facts thus gotten before the jury are- so palpably erroneous and prejudicial as to almost certainly influence the jury, it is not sufficient to sustain an objection or enter a withdrawal, but the court should in .such cases grant a new trial or discharge the jury and continue the case.</p>

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

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

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

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

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

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

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

<p>1. Appeal and Error — Pleading—Judgment.—A litigant is not called upon to resist a claim, which his adversary does not assert in his pleadings, and a judgment should not be rendered therefor.</p> <p>2. Appeal and Error — Judgment—Upon What Based. — The pleadings define the issues, in an action, and the judgment of the court should be based upon a decision of the issues.</p>

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

<p>1. Banks and Banking — Banking Commissioner — Powers and Duties ■ — Discretion.—The banking commissioner, under subsection 20 of section 165a, Kentucky Statutes, may exercise a discretion in passing upon the financial standing and moral character of the incorporators of a proposed bank, and in the performance of such duties shall require such incorporators to furnish satisfactory proof that each is worth over and above his exemptions and liabilities at least double the amount of the par value of his stock subscription; and the commissioner shall also inform himself that the incorporators in good faith seek to establish a bona fide banking or trust business, but beyond this the duties of the banking commissioner are merely ministerial.</p> <p>2. Banks and Banking — Powers of Banking Commissioner. — It is not within the province' of the banking commissioner to determine whether a proposed bank is entering a field which will prove profitable, or whether the community in which it is proposed to be established is large enough to maintain two banks, or that the establishment of a new bank may prove detrimental to the one already established.</p> <p>3. Banks and Banking — Incorporation of Banks — Discretion of Banking Commissioner — Mandamus.—When the incorporators of a proposed bank present properly signed and acknowledged articles of incorporation which comply with the requirements of the statute and have established their solvency and good moral character and have presented satisfactory proof of their good faith intention to establish and carry on a bona fide banking institution, the banking commissioner has no discretion to refuse to approve the articles of incorporation, and if he decline to. perform the ministerial duty imposed upon him under such circumstances, mandamus will lie to comped proper action.</p>

<p>1. Criminal Law — Pleading—Sufficiency.—A mere technical objection to a petition, in a penal action, arising from the fact, that the pleader, by mere mistake, left out of a sentence a word, but the context shows fully what the word was, and the court can with certainty supply it, will not make the petition fatally defective on demurrer, where there are other allegations in the petition equivalent in meaning to the one made defective by the omission of the word, and the accused could not,be deceived or misled as to the offense charged, and the court could not be, in doubt, as to the rendition of judgment.</p> <p>2. Intoxicating Liquors — Transportation—Evidence.—In prosecutions for violations of. subsection 2, of section 2569b, Kentucky Statutes, against an express company for the wrongful delivery of spirituous liquors, in a local option territory, the same evidence relied upon to prove that the express company knew that the statement on the package, that the contents were for the personal use of the consignee, was false, may, also, prove that the statement was false, in fact.</p> <p>3. Intoxicating Liquors — Transportation—Evidence.—In prosecutions under subsection 2, of section 2569b, Kentucky Statutes, against an express company, it is not necessary to support the information or indictment, that it be proven that the agent of the express company, delivering a package, in territory, where the sale of spirituous, liquors is prohibited by law, had actual or personal knowledge of the falsity of the statement upon the package, that it was for the personal use of the consignee, but it is sufficient, if it is proven, that the agent had such information as would put a person of ordinary prudence on notice, that the statement was false.</p>

<p>1. New Trial — Newly Discovered Evidence. — When a party by petition seeks a new trial on the ground of newly discovered evidence, under Civil Code, section 344, which could not have been discovered and produced at the trial, the petition must fully state the facts disclosing the diligence used, and make it clear that by the exercise of reasonable diligence he could not have discovered and produced the evidence on the trial. The mere statement that he could not, with reasonable diligence, have discovered and produced the evidence is a conclusion of the pleader and insufficient. The facts upon which this conclusion is based must be set out so that the court may determine from them whether proper diligence was used.</p> <p>2 New Trial — Newly Discovered Evidence — Pleading.—A petition is defective in its showing for a new trial which fails to allege that the newly discovered evidence would be decisive, or of such a preponderating character as to have a controlling effect upon another trial of the case.</p> <p>3. New Trial — Newly Discovered Evidence. — New trials are reluctantly granted, and when disputed matters have been fully litigated the courts will not reopen a case for the purpose of enabling a party to introduce new evidence, unless the reasons why it should be done are very strong, and it is made to appear with reasonable certainty that the party seeking the new trial was without fault and that injustice or wrong would result unless a new trial were granted.</p>

<p>1. Libel and Slander — Words Actionable — Statutes.—'The words “she had no right to sell the piano. She knew it was mortgaged to us,” are not slanderous per se; and as they do not import a crime or misdemeanor they are not actionable. To constitute the grave misdemeanor denounced by Kentucky Statutes, section 1358, the mortgage upon the property sold, concealed or disposed of, must be recorded, and the sale thereof by the mortgagor must be fraudulently made with the “intent to prevent the enforcement of the lien thereon, or the foreclosure of the mortgage, and sale of the property.”</p> <p>2. Libel and Slander — Pleading.—An averment of the petition that by the use of the words complained of the plaintiff “intended to thereby impute to the defendant the crime of fraudulently selling mortgaged property with the intent to prevent the mortgagee from exercising his lien and foreclosing his mortgage,” cannot give to the words a meaning which they do not themselves convey.</p> <p>3. Libel and Slander — Pleading—Innuendo.—While it is the office of the innuendo to explain the words spoken and annex to them their proper meaning, it may not introduce new matter or enlarge the meaning of the words; nor can it supply the place of a colloquium. If the words complained of in slander derive their slanderous import from extrinsic facts, the petition must aver these facts and connect them by a colloquium with the words charged. But where the words charged to have been spoken are unequivocal and convey a direct charge or imputation of crime, no colloquium is necessary. If no extraneous facts are alleged with respect to the words complained of in the petition which give to them a slanderous meaning, the mere admission by demurrer that they were spoken by appellee, gives them no meaning other than the words themselves convey.</p>

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

<p>1. Evidence — Burden of Proof. — The burden of proof is upon the party who upon the whole case would be defeated if no proof were taken by either side.</p> <p>2. Evidence — Burden of Proof. — The burden is upon the defendant to establish ail affirmative defenses which are properly denied by the pleadings.</p> <p>S. Evidence — Burden of Proof. — Defendant was sued to recover what was alleged to be a part of the consideration for land, the deed to which stated that the entire consideration was paid, but charged by plaintiff not to have been paid. The answer admitted that the sum sued for had not been paid, as was recited in the deed, and sought to avoid liability therefor by alleging a different consideration from that expressed in the deed which had been and was being furnished by defendant; these matters in avoidance were denied by reply. Held that the burden was upon the defendant to establish his plea of confession and avoidance relied on in his answer.</p>

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

<p>New Trial — For Accident Against Which. Ordinary Prudence Could Not Have Guarded. — Where a case was set down for trial on a named day and the stenographer of the attorney for the defendant, several days before the trial, at the request of the attorney, wrote the defendant to be present on the day on which the case was set, but by mistake notified him to come on a later day, and neither the attorney nor the defendant knew of the mistake until after judgment had gone by default against the defendant, who had a good defense, the court, on motion of the defendant during the term, should have set the judgment aside, under section 340 of the Civil Code as due to accident against which ordinary prudence could not have guarded.</p>

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

<p>Appeal and Error — Record—Evidence—Presumptions.—Where, in' an action to enforce a vendor’s lien, issues of fact were submitted to a jury on oral evidence, and such evidence was omitted from the record, it will be conclusively presumed, upon appeal, that the omitted evidence would sustain the judgment of the chancellor.</p>

<p>1. Banks and Banking — Sale of Shares of Stock — Liability of Bank.— Plaintiffs sold 303 shares of the capital stock of a national bank to a trust company for $40.00 per share and $26.00 for the goodwill of the hank whose stock was sold, with the right of plaintiffs to participate in the distribution of the assets of the bank then in liquidation for any sum collected by such liquidation in excess of $40.00 per share for the stock. The bank was not a party to the contract, nor was the purchasing trust company any agent of it, nor did the trust company have any interest in the assets of the bank then being liquidated. Held that the bank is not liable to plaintiffs on the contract of the sale of their' stock for any part of the assets which it may have collected, although plaintiffs might have, as between themselves and the trust company, the right to participate in some of the assets collected hy the bank; this because the bank was no party to the contract, but if it had been it could not bind itself to pay plaintiff, even if it had a right to purchase its own stock, anything by way of dividend or excess price for their stock over and above the actual value thereof, for to do so would imperil the ' interest of the bank’s creditors.</p> <p>2. Banks and Banking — Purchase of Stock. — A national bank cannot purchase its own stock unless it be to save a debt going to it, and then it may not hold same for a longer period than provided by law.</p>

<p>1. Nuisance — Public Nuisances — Injunction.—An injunction ‘will not lie to prevent tbe operation of stock yards not used for slaughtering purposes, but used for marketing and shipping purposes only three or four days in each month, on the ground that their operation will result in a public nuisance, where the evidence fails to show that a nuisance actually exists or that the stock yards are a nuisance per se, even if properly conducted.</p> <p>2. Municipal Corporations — Ordinance—Reasonableness and Uniformity. — An ordinance making it unlawful for any person to open, carry on or operate any butcher shop, slaughter house, glue factory, brewery, distillery, livery stable, blacksmith shop, stock yards or foundry, within the limits of the city without the permission of the hoard of council, granted at a regular meeting thereof, is invalid in fixing no standard for .determining whether a permit shall he granted and so clothing the board of council with power of arbitrary determination.</p>

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

<p>1. Appeal and Error — Findings—Equity Cases.- — In an action in equity to sell an automobile, pledged for the payment of an unliquidated claim for damages, a finding by the chancellor that pledgor was negligent and that he pledged the automobile to secure a claim for damages caused by his negligence, when ascertained, is sustained, the evidence oh these issues being conflicting and such as to leave the mind in doubt.</p> <p>2. Liens — Priorities—Creditors.—“Creditors” as used in Ky. Stats., section 496, providing that an unrecorded mortgage of real or personal property shall not be valid against a purchaser thereof for value and without notice, or against creditors, includes subsequent attachment or execution creditors, without notice of the> unrecorded lien, and excludes antecedent creditors and also subsequent creditors with notice.</p> <p>3. Lieps — Creditors—Unliquidated Claim. — The holder of an unliquidated claim for damages, secured by pledge or attachment, is a creditor within the meaning of that term, as used in Ky. Stats., section 496.</p> <p>4. Liens — Priorities.—In an action to sell pledged property and determine priority of liens thereon, the lien of a pledgee and attaching creditor, without notice, is superior to an antecedent unrecorded vendor’s lien.</p> <p>5. Appeal and Error — Harmless Error. — In such action, the vendor, on appeal, cannot question the validity of a bond, under which he obtained possession of the automobile before judgment, or of the judgment against the surety on the bond, as he is not prejudiced thereby and the surety was not a party to the action or to the appeal.</p> <p>6. Appeal and Error — Review—Error in Judgment. — Error of the court, by clerical misprision, in adjudging plaintiff a sum in excess of that prayed for by him, cannot be complained of where no motion was made in the lower court to correct the error.</p>

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

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

<p>1. Easements — Reservations—Exceptions — Ways — Implied Reservations. — Where a grantor conveys all of her right, title and interest in and to a particular tract of,land, there is no implied reservation of an existing roadway leading from the remainder of her land over the land conveyed, the doctrin'e of implied reservation being restricted to cases of the strictest necessity.</p> <p>2. Easements — Ways—Obstructions—Damages.—Where there is no express or implied reservation of an existing roadway, the grantee Is not liable in damages for its obstruction, particularly where it has afforded the grantor another outlet, although this outlet may be longer and attended with certain dangers resulting from the topography of the land.</p>

<p>1. Judgment — Interlocutory and Final Decrees. — The difference between interlocutory and final decrees is this: that in the former some further steps are required to be taken to enable the court to adjudicate and settle the rights of the parties, while, under a final decree, the party obtains his rights without any further adjudication on the merits, either by the direct operation of the decree itself or by means of proceedings of a ministerial character in execution of it.</p> <p>2. Júdgment — Final Order. — In an action to cancel an appraisement made under the provisions of a fire policy and to recover the damages sustained by the insured, a judgment cancelling the appraisement and retaining the case for further proceedings is not a final order.</p>

<p>(On Motion for Buie of Contempt.)</p>

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

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