Volume 178 — Kentucky Reports

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

<p>1. Alteration of Instruments — Authority or Consent of Parties. — The general rule is that a change in a written instrument made with the consent of the parties thereto does not avoid it, and that it will be binding on the consenting parties in its. altered form.</p> <p>¡2. Alteration of Instruments — Who May Not Complain of. — If the parties affected by a change in an instrument do not complain thereof, others who are not parties to the instrument or affected by the change cannot, ordinarily, set up the change, unless there is evidence of fraud between the parties, to the injury of such third parties.</p> <p>3. Descent and Distribution — Section 1401 Kentucky Statutes — Application. — Section 1401 of the Kentucky Statutes providing that when an infant dies without issue having title to real estate derived by gift, devise or descent from one of his parents it shall descend to that parent and his or her kindred, has no application in cases where the estate was derived from a grandparent.</p> <p>¡4. Liens — Action Against Father for Support of Infant. — In a suit against a father for the support of his infant son the creditor has no lien by virtue of section 2089 'of the Kentucky Statutes upon land inherited by the father from the son, since the debt sued for was not a liability of the son.</p> <p>f>. Infants — Necessaries- Furnished — Liability of Parent. — It is a necessary consequence of the duty to support the child that the parent may in a proper case be held liable for necessaries furnished to the child by a third person; but in order to hold the parent liable there must be either an express promise to pay, or circumstances from which a promise can be implied, some clear and palpable omission of duty on the part of the parent in not furnishing necessaries to the child, or some special exigency rendering the interference of such person reasonable and proper.</p> <p>6. Life Estates — Death of Life Tenant — Liens.—The éstate of a life ’ tenant of land ceases upon his death and the land cannot thereafter be subjected to a lien for the payment of a debt of the . life tenant.</p> <p>7. Limitation of Actions — Claim for Support of Infant. — A suit against a father upon an implied promise to pay for the support of his child is barred by limitation after five years.</p>

<p>1. Descent and Distribution — Sale of Dower — Advancements.—Whereby a judgment rendered in an equitable action brought by the administrators to settle a decedent’s estate, a son of the decedent — then indebted to the estate upon notes which were later-merged into a judgment, that was never paid — was charged with certain advancements from the decedent, not evidenced by the notes, largely in excess of those received of him by his other heirs at law, and declared entitled to nothing more out of the-estate until the other heirs at law were made equal out of debts due the estate, or, if not collected, out of the proceeds realized, from the sale of the dower of the decedent’s widow, at her death. Held: that in an action brought after the son’s death by the other-heirs at law of the father to obtain a sale of his widow’s dower-land and division of the proceeds, to which the deceased son’s four children and only heirs at law were made defendants, the latter were properly excluded by the judgment of the court from, sharing in the distribution of the proceeds of the dower land; it being apparent from the evidence that a distribution among the-other heirs at law of their grandfather of the entire proceeds of the dower land, would give none of them an amount equal to the total of the advancements received by the deceased son from his father and his indebtedness to the latter’s estate.</p> <p>£. Limitation of Actions — When Plea Not Available. — In the state-of case above indicated the heirs at law of the deceased son could not, by pleading the statute of limitations, defeat the right of the heirs at law of their grandfather to charge them in the-distribution of the proceeds of the dower land with the amount of their father’s indebtedness to their grandfather’s estate, as well as the amount of the advancements made him by the latter, as this right was given by the judgment in the action brought by the administrators to settle the grandfather’s estate, which, judgment was never appealed from or reversed.</p>

<p>1, Trial — Instructions.—Where neither express testimony nor reasonable and legitimate inferences to be drawn therefrom would authorize a verdict, it is the duty of the court to so instruct the jury and direct it to return a verdict in conformity to the facts as established by the proof.</p> <p>2. Trial — Evidence—Scintilla Rule. — 'While the scintilla rule is recognized within this jurisdiction, still its application is not to be given the effect of dispensing with the requirement that there-should be some evidence, even though it be slight, and by evidence, within this rule, is meant something of substance and relevant consequence, and not vague, uncertain or irrelevant matter not carrying the quality of proof or having fitness to induce conviction.</p>

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

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

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

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

<p>1. Intoxicating Liquors — Indictment Against Carrier — Date of Delivery. — The Commonwealth has a right to show the delivery of - the quantity of liquor specified in the indictment to the consignee named in the indictment at any time within one year before the indictment is found.</p> <p>2. Intoxicating Liquors — Variance Between Indictment and Evidence. —The Commonwealth must show the unlawful delivery of the quantity of liquor specified in the indictment to the consignee named in the indictment. If there is a material variance between the indictment and the evidence in respect to the name of the consignee or the quantity of liquor delivered, it will, if prejudicial, be fatal to the prosecution.</p> <p>3. Intoxicating Liquors — Variance—When Not Reversible Error. — A variance between the indictment and the proof will not be reversible error unless it appears that the substantial rights of the carrier were prejudiced by the variation.</p> <p>4. Intoxicating Liquors — No Limitation on Amount That Carrier May Deliver for Personal Use. — The statute does not limit the amount of liquor that the carrier may deliver for the personal use of the consignee.-</p> <p>6. Intoxicating Liquors — Evidence—Sufficiency of to Sustain Conviction — Personal Use. — When the liquor is properly marked for personal use and there are no incriminating facts or circumstances tending to show that it was not intended for personal use, the carrier cannot be convicted on evidence alone of the delivery of as much as 14 gallons of whiskey at one time.</p>

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

<p>1. Municipal Corporations — Damages—Measure of in Action for Change in Grade of Street. — Where a municipal corporation changes the grade of an established street and the abutting property owner seeks to recover damages for injury to his property caused by the change, the measure of damages to which he is en-. titled is the difference between the fair market value of the property just before it was generally known that the change would ba made and the fair market value of the property just after the change was made.</p> <p>3. Municipal Corporations — Damages—Change in Grade of Street — ■ Improvements at Cost of Abutting Property Owner to be Disregarded in Estimating. — Where the grade of an established street has been changed to the injury of an abutting property owner, in estimating the damages to which he is entitled, the court should instruct the jury to disregard any enhancement in the value of the property due to improvements made at the cost of the property owner after the change was made.</p> <p>3. Appeal and Error — Instructions—Harmless Error in. — Although an instruction on the measure of damages given in a suit against a city to recover damages for a change made in the grade of a ' street was erroneous, the error was not prejudicial on account of the form of the questions asked the witnesses who testified on the subject of the alleged injury to the -property. ></p>

<p>1. Appeal and Error — Partial Transcript. — In the absence of a transcript of the evidence, only the sufficiency of the pleadings to support the judgment can be considered on appeal.</p> <p>2. Pleading — Dismissal.—The dismissal of a pleading leaves the party filing it .in the same position'as if the pleading had not been filed.</p> <p>3. Appeal and Error — Harmless Error — Principal and Surety.— Where the jury found that a defendant, maker of a note, was not a surety, a holding insufficient, on demurrer, his defense of surety and discharge by the surrender, without his consent, of collateral securities pledged to secure the note, is not prejudicial and will not authorize .a reversal.</p> <p>4. Bills and Notes — Pleadings—Judgment.—In an action on a promissory note, pleadings held sufficient to support judgment.</p> <p>5. Bills and Notes — Holder in Due' Course — Payee of a negotiable promissory note, to whom the note was issued, is not a holder in due course, as. defined in Negotiable Instruments Act, section 52.,</p> <p>6. Principal and Surety — Collateral Securities — Discharge of Sure-' ty. — Between original parties, the surrender, without the consent of the surety, of collateral securities given to secure payment of a negotiable promissory note, releases the surety; and this defense is not affected by the Negotiable Instruments Act.</p> <p>7. Principal and Surety — Application of Deposits — Corporations.—A . ..bank, having on deposit funds to the credit of corporations, whose entire capital stock is owned by the principal maker of a note held by it, cannot apply such funds to the payment of the note, at its maturity; and a surety on-the note is not discharged by .'reason of its failure to make such application.</p>

<p>1. Estoppel — Persons Estopped. — One may not rely upon an estoppel growing out of conditions which he created over the objections and against the consent of the one sought to be estopped.</p> <p>2. Contracts — Title to Property — Consideration.—The settlement of adverse claims asserted against one’s title to property is a sufficient consideration to support a contract with reference to the property.</p> <p>$. Contracts — Release—Consideration.—Where one is claiming property under a decretal sale, and another is claiming part of it by independent title, and all of it under sales made under executions issued on the decretal sale bonds, a contract whereby each party agrees to release a portion of the property to the other is sufficiently supported by a consideration to enable the courts to enforce it, and the proof is sufficient to establish that a written contract was entered into to that effect.</p>

<p>1. Principal and Agent — Negotiable Instrument Law. — Under the Negotiable Instrument Law, an agent, in order to bind his principal as a party to a negotiable instrument, must possess written authority from the principal to do so.</p> <p>:2. Principal and Agent — Ratification.—In order to ratify the unauthorized acts of an agent the principal must possess either actual or implied knowledge of such unauthorized acts, as there can be no ratification in the absence of knowledge upon the party sought to be charged of the acts to be ratified.</p> <p>:3. Principal and Agent — Ratification.—Where the facts upon which the principal acts which it is claimed constitute ratification are consistent with, the ag.ent having observed his actual authority, no implied or constructive knowledge will be imputed to the principal of any violations by the agent of his authority so as to bind the principal under the doctrine of ratification.</p> <p>■4. Principal and Agent — Ratification.—Where the agent for an insurance company, with authority only to sell stock in that company and to remit to his principal therefor, in violation of his authority undertakes to bind his principal as an endorser upon a note executed by a purchaser1 for stock, and afterwards discounts the note in bank and remits the proceeds to the principal, the Hatter having no knowledge of the unauthorized act of the agent, and the principal issued and delivered the stock upon the receipt of the certificate of deposit: Held that there was no ratification by the principal of the unauthorized act of the agent in attempting to bind it as an endorser upon the note arising from the fact of the principal accepting and appropriating the deposit evidenced by the certificate which the agent sent him.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>1. Master and Servant — Evidence—Indemnity Insurance. — In a personal injury suit, evidence that defendant was protected against loss from accident to its employes is incompetent, and its admission is reversible error.</p> <p>2. Negligence — Specific Instructions. — Upon the trial of a personal injury suit, each party offering evidence in support of his theory of the proximate cause of the accident, and the evidence beng controverted, the question should be submitted to the jury by instructions, presenting in concrete form the several such theories.</p> <p>3. Trial — Instructions—Requests.—Where, in a personal injury suit, a party offers ■ an instruction upon his theory as to the proximate cause of the accident, the court should, by proper instruction, present that question to the jury.</p> <p>4. Master and Servant — Independent Contractor — Contributory Neg- . ligence — Question for Jury. — In a personal injury suit, held that the questions as to whether plaintiff was an independent contractor or guilty of contributory negligence were in issue in the evidence and were properly submitted to the jury.</p> <p>5. Appeal and Error — Review—Fellow Servants. — Where the ques- ■ tion was not raised in the lower court, a party cannot complain on appeal that the trial court did nof submit to the jurytlie question of fact whether or not plaintiff was a fellow servant of other1 employes alleged to have caused the injury.</p>

<p>1. Master and Servant — Automobiles- — Ownership and Agency. — Where an automobile was injured in a collision with a truck, a subsequent written demand upon the owner of the automobile.for indemnity for repairs to “our machine,” to which the name of the defendant was signed by the driver of. the truck, is some proof of the ownership of the truck by the defendant and the driver’s relation of agent of the defendant company, with authority to manage its business.</p> <p>2.' Master and Servant — Servant’s' Tort' — Scope of Employment.— Where the chauffeur in charge of a truck was engaged in his own personal affairs, when the truck collided with an automobile and injured it, the owner is not liable for the injuries. ■ •</p> <p>3. ■ Master and Servant — Relation.—The owner of an automobile, negli- ., gently operated by his employee and causing injury, is not prima • facie negligent, unless it appears that the employee was. driving the automobile with the owner’s authority, express or implied.</p> <p>4. Master and Servant — Agent’s authority. — The agent’s authority of the master to drive an automobile at the time of an accident is implied when, under the terms of his employment, it is his duty generally to drive the automobile.</p> <p>5. Master and Servant — Trial—Burden of Proof. — Upon proof of de- ■ fendant’s ownership of an automobile and that his chauffeur negligently operated it, causing injury, raises the .presumption that the chauffeur was acting within the scope of his authority, since a chauffeur is a person employed to operate an automobile, whereupon the burden shifts to defendant to show that the chauffeur was not then acting for him.</p> <p>6. Master and Servant' — Trial—Question for Jury. — In an action for damages against the owner of a truck for colliding with plaintiff’s automobile, where there was evidence that the defendant .owned-the truck, that its manager negligently operated it, at time of the accident, causing injury to plaintiff, it was error to direct a verdict for defendant since authority of the manager to operate the automobile is implied.</p>

<p>1. Insurance — Accident Insurance — Construction' of Policy — Injufies —Loss of Life. — The policy contract of an accident association insured a member against bodily injuries resulting from accidental means, and specified the amount it would pay in the event the insured “lost his life” by accident.. In'the exemption clause it was provided that the insurance should not- cover any loss due to “the act of any person done to injure the insured.” The- insured w¿s intentionally hilled. Held thát- the word “injure” . in the exemption clause should be confined to non-fatal, injuries and , did not include loss of life by accidental means.</p> <p>2. Insurance — Construction of Policy — Definition"' of Word “Injure.” —The""word ‘injure” is not a technical word.it has a popular and well understood meaning and is customarily confined to injufies that aré not fatal.</p> <p>3. Insurance — Construction of Policy — Doubtful Word's and Glauses Will be Construed in Favor of the Insured. — Ambiguities, and words, •sentences or clauses of doubtful meaning, will be construed against the company and in favor of 'the insured.</p>

<p>1. Trusts — Sale of Trust Property — Cestui Que Trust. — A trustee having the power to sell the trust property cannot buy it from himáelf' unless tliie cestui qué trust is sui juris and''it'-clearly appears', from the evidence'-'that the trustee acted in good faith, that •the consideration was adequate, and that the ce'stui qu% trust consented'to the sale with full knowledge of all material facts'and consciously and intentionally acted upon his independent thought, uninfluenced by any fact either stated, or withheld by the trustee, and unless such facts appear the purchase by the trustee is always subject to be avoided by the. cestui que trust, and this is so in every case where the latter is not sui juris.</p> <p>2. Trusts — Cestui Que Trust. — The remedy of the cestui que trust in súch á case is either to treat the property in the hands of the trustee as still being held by him in trust, or if he has sold it to adopt the sale and seek an accounting from the trustee of the profits which he realized from his sale of the property after he had purchased it.</p> <p>3. Trusts — Sale of Trust Property. — A court has no authority in a suit brought for that purpose only to adopt or approve of a private sale of the trust property by the trustee as such to himself individually, although the sale was consented to by the cestui que trust, and especially is such authority wanting where the cestui que trust is an infant and the proceedings to obtain a judgment of approval are ex parte, the infant being made a party thereto by his guardian or next friend joining in the ex parte proceeding and also making the infants petitioners therein, and a judgment So rendered is void and wholly ineffectual to give validity to the trustee’s purchase.</p> <p>4. Trusts — Cestui Que Trust — Accounting.—Trustees under a will were empowered to sell the trust property, but not sooner than three years after the testator’s death, nor longer, than ten years thereafter. Within a little over three years after that event, with the consent of a cestui que trust having only a life interest in the trust property, they bought it themselves- and- within less than three years thereafter sold it for more than two and one: half times the amount they gave for it: Held that the cestui ques trust' were entitled to an accounting as against the trustees in a suit brought for that purpose of the profits which the trustees realized.</p>

<p>•1. Covenants — Breach of by Eviction — Remedies.—A convenant of ' general warranty creates a liability upon the warrantor, and where the convenant is executed prior to the acquisition of a homestead. ■ by the warrantor, the homestead is subject to the warranty claim,, although the eviction occurred after the homestead had been ae- ■ quired. When the covenant of warranty has been broken by eviction, the liability on the warranty does not then accrue, but the caiise of action then accrues on the liability which the vendor assumed by .his convenant of warranty when the deed containing same was executed. For that reason, where the vendee has been, evicted, he is entitled to recover the money which he paid and interest thereon from the date of the deed containing the warranty, not interest from the date of the eviction.</p> <p>2. Judgment — Collateral Attack.- — In a collateral proceeding attacking the validity of a judgment, the rule is well established that, where the record in- which the judgment was rendered shows the ' service of a summons, it imports such absolute verity as to make ■ it conclusive until reversed in some direct proceeding.</p> <p>S.-"-Husband and Wife — Rights of Married Woman Precluded by Default Judgment. — The rights of a married woman are préeluded by '• a default judgment rendered against-her:. Therefore, she will not bé permitted to show the character '.of the .liability on' which -it was rendered and thus defeat its enforcement. If she can be sued. -, and is capable of making a defense to the action, then whatever -judgment may be rendered against her is binding although she , might have prevented the recovery of.the judgment if she had. made defense.to' the action after being summoned. She must. he relieved from the effects of the judgment and the consequences' of it in the same way that a single woman would get relief.</p>

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

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

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

<p>Mechanics’ Liens — Trusts.—If the terms of the instrument, which creates a trust in a dwelling house, aré such as to authorize the trustee to fully manage and control the dwelling house, a mechanics’ lien cannot be imposed upon it, by contract with the cestui que trustent, alone, and without a contract with the trustee, and without his consent and approval.</p>

<p>1. Judgment — Entry.—It is necessary to the validity of a judgment of a court, that, it be entered in a book, provided for that purpose, and after being so entered, signed by the presiding judge of the court.</p> <p>2. Insurance Policy Upon Life of Husband Procured by Wife— Divorce. — A policy of insurance upon the life of a husband, which is procured by, the premiums paid by, the policy issued to the wife, and payable to her, in the event of the death of the husband, as provided by section 654, Kentucky Statutes, is not the property cf the husband, and the title, of the wife to its proceeds, is not affected by a divorce from the husband, nor by the provisions of section 2133, Kentucky Statutes, where the only contest is between the wife or her representatives and the representatives of the husband.</p> <p>3. Insurance — Beneficiaries—Divorce.—A policy of insurance upon the life of a husband, obtained by him and of which his wife is made the beneficiary, is usually property obtained by the wife, from or through the husband by reason of the marriage and in. consideration thereof, and in the event of a divorce from the bonds of matrimony, the wife will lose her right to the proceeds of the policy.</p> <p>4. Insurance — Beneficiaries.—Where a husband obtains a policy of' insurance upon his life, and of which the wife is made the beneficiary, and by the terms of the policy, the husband is empowered to change the beneficiary, but never does so; in the event of his death, the right to the proceeds of such policy is the property, of the wife, and is not forfeited under the provisions of section 2133, Kentucky Statutes, as by the provisions of that statute, the' property of the offending wife or husband is not forfeited to the-other, because of adulterous conduct, although the property was obtained by or through the other, by reason of the marital relation.</p> <p>C. Insurance — Beneficiaries—Statutes.—Under the provisions of sec-' tion 2133, Kentucky Statutes, the offending party does not forfeit ' his or her own property, but only the -rights, which he or shé1 irlky ’-'have in the,'property of the other. • '</p>

<p>1. Action — Action in Individual Capacity — Action in Fiduciary Capacity — Election.—One suing in ills individual capacity and as committee of an idiot, is properly required to elect which, cause of action he will prosecute.</p> <p>2. Insane Persons — Idiots and Lunatics — Pauper Idiot — Allowance to — Court Costs — Commissions—Committee.—The allowance by the state of $75.00, to each pauper idiot, is for the sole and’ exclusive benefit of such idiot, and no part thereof may be used to pay court costs or commissions to a committee.</p> <p>3. Insane Persons — Idiots and Lunatics — Pauper Idiots — Allowance by State — Surplus—Effect.—Where upon a settlement by the-committee of a pauper idiot, it appears that the allowance made by the state for the previous year was more than sufficient for the maintenance of the idiot, that fact should be certified to the Auditor, and the allowance for the succeeding year diminished by the balance in the hands of the committee.</p> <p>4. Insane Persons — Idiots and Lunatics — Right of Committee to' Recover Sums Illegally Retained by Former Committee — Application of Such Sums. — A committee of a pauper idiot may recover from a former committee, during the lifetime of such idiot, any sums illegally retained by the latter. Such sums will not become the property of the idiot to be disposed of as the committee may see fit, but should be used, solely and exclusively for the maintenance of the idiot, and no further allowance will be made by the state until such sums are exhausted.</p> <p>5. Insane Persons — Idiots and Lunatics — Death of Pauper Idiot— Right of Administrator to Recover Sums Illegally Retained by Former Committee — Right of State to Recover. — Since the allowance made by the state to a pauper idiot, is solely and exclusively for his proper maintenance, sums illegally retained by a-former committee are not assets of the idiot’s estate to be administered for the benefit of others, and no recovery thereof can be had by his administrator, but the right of action lies in the state alone.</p>

<p>1. Indictment and Information — Description—Sufficiency.—Where an indictment is for a statutory offense, the description of the offense, in the accusative part of the indictment, is sufficient, if it designates the offense by a brief general description, in the language of the statute, or sufficiently so, as to, apprise a person of ordinary understanding of what is meant.</p> <p>2. Indictment and Information — How Meaning Ascertained. — The meaning of an indictment is to be ascertained from the entire instrument, and not from any particular part of it, alone, and if its averments contain all the necessary things to constitute the offense, and are sufficient to apprise a person of ordinary under-, standing of what is meant and intended and of what the accused is called upon to answer,' the indictment is not bad upon demurrer.</p> <p>3. Gaming — Slot Machine. — A slot machine is a gambling device, where the one, who plays it, stands to lose money, checks or trade by a hazard or chance.</p> <p>4. Gaming- — What Constitutes Device. — It is not necessary that both parties should stand to lose, in order to make or constitute a device a gambling one.</p>

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

<p>1. Telegraphs and Telephones — Care Required to Keep Poles and Wires i;i Condition. — The law imposes upon a telephone company the duty of exercising ordinary care to keep its poles, wires and appurtenances in such- a condition as will make their presence along a public highway reasonably safe for persons traveling thereon.</p> <p>2. Negligence — Pleading.—When specific acts of negligence are charged, a recovery will not be permitted for other acts of negligence not charged.</p> <p>S. New Trial — Instructions.—Where the instructions to the jury are so contradictory as to nullify each other a new trial will be granted.</p>

<p>1. Wills — Construction.—Where a will devised to the widow of the testator his entire estate, with power to sell and convey the property or any part thereof, and provides that at her death certain specified parcels of real estate shall become the property of his three daughters; and that the residue of the estate shall at the widow’s death be divided among the daughters by his executors. Held, that the widow takes a life estate in the whole of the property with power to sell and convey any part thereof, the remainder to go at her death to the daughters.</p> <p>2. Wills — Construction—Remainders.—When a devise to a pérson is declared to be in fee with full power to sell or dispose of the property by will, a devise over is void; but if the power of disposition is limited to a mere right to sell and convey the property devised or any part thereof, and there is a remainder over, such person will in that' event take only a life estate in the property and cannot, therefore, dispose of it by will. . .</p>

<p>1. Pleading — Amendment of Caption- — Service of Summons. — In an-action to recover the amount of a note which had been indorsed by her testator for the accommodation of the defendant, and -which the plaintiff, following the death of the testator, was compelled as his executrix to pay, the amending of the petition by interlining in the caption thereof, following the name of the plaintiff, words showing that she sued as executrix of the testator; and in the body thereof other words to the effect that she paid the note as executrix of the testator, made no such material change in the claim sued upon or cause of action, as required the issuance or service upon the defendant of another summons; the only object and effect of the amendments being to perfect a cause of action already imperfectly stated in the petition.</p> <p>2. Pleading — Amendments—Process.—It is a well recognized rule that new process is not necessary on an amended petition, unless the amendment materially changes the grounds of complaint, or sets up a cause of action different from that originally stated. Ordinarily, a defendant served with process, is bound to take notice of all subsequent proceedings in the action.</p>

<p>Contracts — Breach of Contract — Pleading.—In an action upon a-contract the petition must ayer a breach of contract by the de-, fendant; it is not sufficient for the petition to allege that a-third person broke his contract with the plaintiff and that the defendant knew of the breach at the time he contracted with the plaintiff.</p>

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

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

<p>1. Judges — Objections to Judge and Proceedings Thereon — Affidavits. —An affidavit filed under the provisions of section 968 of the Kentucky Statutes to require the judge to vacate the bench must state facts from which it must appear that the judge, on account, of bias or prejudice, is disqualified to preside at the trial of the case, and such facts are not sufficient if they only show that the judge has erroneously made some adverse ruling against the affiant, or that he entertains a conviction upon a principle of law-involved in the case; a fortiori are they insufficient if they show a. disposition on the part of the judge to prosecute, and, if found, guilty to punish others charged with similar conduct to that for which affiant is being tried.</p> <p>2. Attorney and Client — Disbarment.—Conduct which would be sufficient to prevent one from' being admitted to the profession of an attorney at law will be sufficient to disbar one after he shall have been admitted, and this conduct need not be such as would render the attorney liable to a criminal prosecution. If it is such as to show him to be an unfit or unsafe person to enjoy the privileges and to manage the business of others in the capacity of an attorney and to .render him unfit to discharge the duties of his office or unworthy of confidence, the court would be authorized tn strike his name from the roll of attorneys and to revoke his license to practice law.</p> <p>8. Attorney and Client — Disbarment.—Where an attorney stands convicted of employing different agents at different times to solicit clients for him and to represent to the prospective clients that the one whom the agent represents and for whom he is soliciting, business is a person other than his principal, the offending attorney, and this course is pursued for a long time, resulting in the procuring of many cases, and in addition he is convicted of withholding evidence within his knowledge favorable to a litigant until he was given employment in the case, the court did not abuse; a sound discretion, in adjudging that he should he disbarred from the practice of his profession.</p> <p>4. Continuance — Affidavit for. — :Where a litigant agrees that an affidavit filed for a continuance might he read as the testimony of the absent, witness, he can not complain of the. introduction of the affidavit on the ground that it was insufficient in law to authorize a continuance.</p>

<p>1. Bills and Notes — Negotiable Instruments Act — Construction.—A3 between tbe original parties to a negotiable instrument, the provisions of the negotiable instruments act declare the prima facie effect of the instrument; as between a holder in due course and prior parties, the effect of the act is absolute.</p> <p>2. Bills and Notes — Negotiable Instruments Act — Defenses.—Where the' maker of a negotiable promissory note added to his signature 7 thereon the word “trustee,” without disclosing his principal, he * is, under section 20, negotiable instruments act, prima facie liable thereon to the original- payee or to one not a holder thereof in due course; and in an action thereon by such party, he may interpose any defense permissible under section E8 of the act.</p> <p>3. Bills and Notes — Ambiguity—Extrinsic Evidence. — The signature -to such note is ambiguous, and in an action thereon by one not a ‘ holder in -due course, extrinsic evidence is admissible to show whether the signer, in executing the note, intended to bind him- • ‘s'eif■ individually or another for whom he' was acting in a representative capacity.</p> <p>4. Bills and Notes — Defenses—Mistake—Trial—Weight of Evidence. — ■. Where, in an action on such note, the defense was that the note was-: executed for a church, of which -defendants were trustees, but that by mistake in the draft of the note, it failed to disclose ■the true principal, evidence held to support the finding of the chancellor that the note was the obligation of the church, and that by mutual mistake of the parties such principal was not disclosed in the note as was intended by the parties when the note was executed and delivered.</p> <p>6. Bills and Notes — Finding of Chancellor — Effect.—In such action the recital by the chancellor in his finding that from the facts and circumstances enumerated by him, “plaintiffs should not recover against defendants anything” is in effect a holding that the mistake was mutual.</p>

<p>1. Evidence — Self-Serving Declarations — Admissibility.—In an action under section 2089, Kentucky Statutes, by the widow against the heirs of a decedent to'establish and enforce a lien claim upon real estate descended to them, statements of the decedent, not in the presence of the wife, that he was out of debt and paid with his own money the purchase money lien notes, which the widow alleged were assigned and delivered to her to secure payment of the money loaned by her -to her husband for their payment, were incompetent as self-serving declarations.</p> <p>2. Appeal and Error — Finding of Chancellor. — Where, upon a consideration of the evidence, there is a preponderance in favor of the finding of the chancellor, this court is not authorized to disturb such finding upon appeal.</p> <p>3. Executors and Administrators — Proof of Claim and Demand. — In such action, under section 2089, Kentucky Statutes, no demand upon the personal representative of the decedent for payment is necessary; but, before the .claim may be allowed by the commissioner or a judgment rendered thereon, it should be verified as required by section 3874, Kentucky Statutes.</p> <p>4. Appeal and Error — Executors and Administrators — Proof of Claim —Estoppel.—In such action, where a party fails in the trial court to take the steps necessary to secure a verification of a claim against a decedent’s estate, as required by section 3874, Kentucky Statutes, he is estopped on appeal to complain that such demand was not so verified.</p> <p>5. Executors and Administrators — Proof of Claim — Practice—Waiver. —The proper procedure to secure verification of a demand against a decedent’s estate, sued on, is to move for a rule to require verification of the claim; and the right to require such verification is waived by filing a demurrer to the pleading in which the demand is asserted, or by pleading to the merits of the claim.</p>

<p>1. Divorce — Appellate Jurisdiction. — This court has no jurisdiction to reverse a judgment for divorce, but it may look into the testimony upon which the divorce was granted in order to determine the correctness of the judgment for alimony or whether any such judgment should have been rendered.</p> <p>.2. Divorce — Grounds—Cruel and Inhuman Treatment. — Cruel and inhuman treatment- on the part of the husband furnishing grounds for ■ a divorce by the wife is a relative term, since conduct which might create it in one case would not in another, and where the wife is so diseased and afflicted as to render her nervous and irritable, with a partial loss of mentality, her conduct should not be given the fore© and effect to charge her with being guilty of “like conduct” as to deprive her of the right to obtain a divorce upon like grounds on the part of her husband, the evidence being sufficient to show his guilt.</p> <p>. 3.’ Divorce — Alimony—Discretion of Court. — Th© amount of alimony to be allowed the wife is a question for the sound discretion of the court, and in exercising it he cannot be influenced by the sufficiency of alimony to support the wife, but must b© governed by the amount of property owned by the husband and his ability to pay, his circumstances and conditions considered.</p>

<p>Evidence — Declarations of Party Litigant — When Incompetent Because Self-Serving. — Where a witness on his examination in chief related a declaration by the defendant which was against his interest, it was incompetent to allow him to testify as to a declaration made at another time and place by the defendant which was contradictory of his first declaration and favorable to his interest, although if both of the declarations had been made at the same time and in the same conversation, both would have been admissible.</p>

<p>1. Wills — Construction.—In construing a will the whole of the instrument, including all codicils, will be considered in arriving at the intention of the testator.</p> <p>2. Wills — -Vesting of Estates. — The vesting of estates is favored by the law, and it is a well recognized -rule that in cases of doubt the law favors a fee rather than a lesser estate. Therefore, an estate once given in fee will not be defeated by subsequnt provisions apparently limiting it to a smaller estate, unless the intention of the testator, as shown by the language of the will, so requires.</p> <p>3. Wills — Vesting of Estates. — Where an estate is given by will which may be defeated upon the happening of a contingency, and there is no other period apparent or intended, in which the event shall occur, it will be made to refer to an event happening within the lifetime of the testator. So where a testator by his will -devised his entire estate to his widow and two sons, each to take a third thereof, and a subsequent clause or clauses of the will provide that in the event of the death of the widow, the interest devised her should go to the two sons, but that in the event either of the sons should die without a child or children his interest should go to his surviving brother, and in the event of the death of both sons without child or children the interest devised them should go to their mother, the testator’s widow. Held: That the words of survivorship must be regarded as referring to the death of the devisees during the life of the testator, it being the intention of the latter to provide against the contingency of the death of the objects of his bounty in his lifetime, or, at any rate, before the time fixed in the will for the ■division between them of the estate devised.</p>

<p>1. Municipal Corporations — Ordinances—Inspection of Foods — Application of Ordinance. — An ordinance of the city of Louisville, providing for the inspection of meats, examined and held to apply to meats sold by a non-resident packer to customers in that city, on orders which were to become binding when approved at his home office, where in pursuance to such orders he agreed to deliver the meats to such customers.</p> <p>2. Municipal Corporations — Ordinances—Inspection of Foods — Application of Ordinance. — An ordinance of the city of Louisville, providing for the inspection of meats, examined and held to provide for the collection of inspection fees from the seller.</p> <p>3. Commerce — Meat Inspection — Municipal Regulations — Constitutionality. — Inspection fees fixed by a local ordinance for inspecting imported meats, are prima facie reasonable, and in the absence of an allegation that they are excessive, their collection will not he enjoined on the ground that they constitute an unlawful interference with interstate commerce; the mere fact that such fees, together with fees charged for inspecting intrastate meats, are placed in a common fund and used to pay the cost of both intra and inter state inspection, not being sufficient to raise the presumption that the fees for interstate inspection are unreasonable.</p>

<p>1. Contracts — Breach—Insolvency and Failure of Personal Performance as Breach. — Where the consideration of an assignable contract of sale of a limited license to manufacture and sell a :' hoisting engine, protected by patent owned by grantor, was that $1,000.00 was to be paid to and- used by grantor in manufacturing a model engine for demonstration purposes, and the grantee •should furnish all additional capital to develop the invention and promote its manufacture and sale, and where the assignee of grantee is complying with the terms of the contract, there was no breach of the contract of sale because the grantee became insolvent or did not personally perform the contract.</p> <p>2. Contracts — Assignment—Ratification.—Where grantor in a contract of sale of a shop right knew and consented to an assignment of the contract and accepted from the assignee, through the grantee in the contract, $1,000.00 part consideration of the contract, he thereby ratifies the assignment.</p> <p>3. Contracts — Assignment—Substitution.—Where an assignment of a contract of sale of shop right is valid, the grantor in such contract cannot be substituted to the rights of the assignor secured by the transfer. .</p>

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

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

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

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

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

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

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

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

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

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

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

<p>1. Judgment — Final and Appealable Order — What Is. — A judgment is not final because it decides some question relating to final relief, or because it decides what are the rights of the parties to such relief. A judgment to be final must not merely decide that one of the parties is entitled to relief of final character but must give that relief by its own force, or be enforceable for that purpose without further action by the court, or by process for contempt.</p> <p>2. Judgment — Final and Appealable Order — What Is Not. — In a suit by a city to recover damages for the alleged unlawful use of its streets by a gas company, an order entered by the court merely deciding that the gas company was unlawfully using the streets, was not a final or appealable order.</p>

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

<p>1. Criminal Law — Evidence—Weight and Sufficiency of for Jury.— We have written in many cases that we will not interfere with the verdict Of a properly instructed jury on a question of fact, unless it is so flagrantly against the weight of the evidence as to appear at first blush that the jury in making it were influenced by passion or prejudice.</p> <p>2. Criminal Law — New Trial — Misconduct of Counsel or Jury. — The affidavit of counsel for the defendant in a criminal prosecution, based on the alleged statement made to them by the sheriff in charge of the jury as to what the verdict would be and based on the alleged fact that the sheriff said he had furnished the jury with whiskey during the trial, will not be sufficient to authorize the granting of a new trial when it is contradicted by the affidavit, of the sheriff and all the jurors and is unsupported by other facts or circumstances.</p>

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

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

<p>Appeal and Error — Finality of Order. — An order overruling a motion to re-docket a cause that, by oversight or mistake of the clerk, had not been placed on the docket and had been apparently abandoned, is not a final order and is not appealable.</p>

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

<p>1. Vendor and Purchaser — Title Eonds-^-Conditions and Restrictions. — Where the owner of a subdivision of lands, who had acquired it by deed imposing conditions and restrictions as to its use, sold certain lots therein, giving to purchaser bonds of title containing identical conditions and restrictions, he is bound, in. his possession and disposition of the unsold lots, to do no act that would violate any of these conditions or restrictions.</p> <p>2. Vendor and Purchaser — Title Bonds — Rescission by Purchaser.— Where vendors, owners of such subdivision, gave bonds of title to purchasers and later sold lots to others for the benefit of a railroad company, for a right of way for its railroad, they violated their covenant that, the lots would be used for residential purposes only, and the purchasers are entitled to a rescission of the contract of sale of lots to them.</p> <p>3. Vendor and Purchaser — Eminent Domain — Covenants—Discharge.. —Vendors of such lots are not absolved from their covenants as to conditions and restrictions as to usé of the lots, because they sold lots to a railroad company, with power of eminent domain,, for a necessary public use, where there is no evidence either of the necessity, or a condemnation, for such use.</p> <p>4. Eminent Domain — Public Use — Evidence—Presumption.—There is-no presumption of -necessity for a public use of lots from the fact that a -railroad company has built its tracks thereon; but such necessity must be proved before rights of private ownership give, way to public use.</p>

<p>1. Witnesses — Depositions — Production of Books and Papers — Notary Without Power to Compel — Contempt.—The Civil Code, section 501, does not confer upon a county judge, justice of the peace or notary public who may be commissioned under its provisions by the court of another state to take depositions in this stale to be used in an action or other judicial proceedings in such other state, any power to compel by the process known as subpoena duces tecum the production of books or papers by a witness. The. section treats exclusively of the taking of depositions of witnesses and confers on the officer authorized to take the depositions only such powers as will compel the attendance of the witnesses and the giving of. depositions by them. The only kind o£ subpoena that can be issued by such officer is the subpoena ad testificandum, and for the failure of the witness to attend before him in obedience to such subpoena, or his refusal to be sworn or to testify, the witness may by the county judge, justice of the peace, or notary public be declared guilty of contempt and punished' for such'contempt as prescribed by section 591.</p> <p>2. : Witnesses — Depositions—Subpoena Duces Tecum — How Issued. —The subpoena duces tecum is' a writ which, though in form not unlike the subpoena ad testificandum, must, in addition, include, a command requiring the witness to bring with him and produce to the court books, papers, etc., in his hands tending to elucidate’ the matter in issue. The subpoena ad testificandum which merely commands the personal attendance and giving of testimony of the witness is issued, as a matter of right to the applicant, by the clerk, of the court in which the testimony of the witness is required in an action therein pending, but if the attendance of the witness be’required for the taking of his deposition, the subpoena is'issued by the ministerial officer before whom the deposition is taken. The subpoena duces tecum, however, is never issued Without an order of the court, or the judge thereof, in which the' ■action is pending, which power has always been exercised by the courts of this state under authority of the common law, but is now expressly conferred by Civil Code, section 528, which is but-declaratory of the common law, the provisions of which expressly confine the authority tó issue the subpoena duces tecum to the court in which the action requiring such subpoena is pending, or to the judge of such court.</p> <p>3. Evidence — Production of Books and Papers. — The court of a foreign state is without jurisdiction to make or enter >an order requiring the issuance of a subpoena duces tecum by a judicial or ministerial officer of this state requiring the production of books, papers or other thing intended for use as evidence in an action pending in such foreign court.</p> <p>4. Witnesses — Production of Books and Papers — Contempt—Notary Without Power to Punish. — A notary public authorized by a commission from the court of another state to take depositions in this state for use in an action pending in such court, being without authority to issue a subpoena duces tecum compelling a witness to produce before such notary books or documents for inspection or as evidence, his action declaring such witness in contempt for refusing to produce the books or documents, and attempting to punish him therefor, was illegal and void; nor can such action of the notary be given any legal force or effect by any order that may be entered by the judge of the county court an approval thereof.</p> <p>6. Injunction — Production of Books and Papers — Notary Enjoined From Compelling. — As such action on the part of the notary public and county judge in this state was unauthorized and, therefore, woid, the enforcement of :any order made by them, or either of them, in regard thereto may be prevented by injunction issued by the circuit court of the county in which such action was taken.</p>

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

<p>1. Appeal and Error — Cross-Appeal—Review.—Where the circuit court dismissed the petition and failed to pass upon the counterclaim, a cross-appeal by the defendant based upon his counterclaim will not be reviewed by the Court of Appeals, since there is no decision upon that question for the court to review.</p> <p>2. Appeal and Error — Proof.—Proof unsupported by an issue made by the pleadings will be ignored.</p> <p>3. Adverse Possession — Parol Contract — Title—Validity.—When one-enters upon land under a parol contract, claiming it as his own and holding it adversely to all the world for fifteen years, he acquires a valid title thereto and cannot be dispossessed for want of a paper title.</p>

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

<p>1. Master and Servant — Negligence—Damages.—'Where plaintiff, a railroad station agent, was assisting in unloádiñg baggage from a car, and while so doing the train without warning or signal started, causing the trunk which plaintiff was unloading to fall so as to injure him, the railroad company was guilty of negligence authorizing the plaintiff to recover damages which he sustained, because of the injury.</p> <p>2. Trial — Evidence—Scintilla Rule. — While the scintilla rule will not 1 authorize a submission of the case when plaintiff’s testimony is inherently impossible and at variance with established and universally recognized physical laws, still the testimony in this case did not bring it within that qualification prohibiting its submission and the court did not err in refusing a peremptory, instruction upon that ground offered by the defendant.</p> <p>3. Negligence — One Guilty of Liable for Damages. — The one guilty of negligence is liable for the damages produced, although the injured person may have been suffering from an existing ailment, even a similar one, or if the injury develops a latent ailment and the damages to be recovered include all of the results and consequences proximately produced by the negligent injury complained of.</p>

<p>1. Criminal Law — Evidence.-—A general rule is, that when an accused is put upon trial for one offense, he is to suffer conviction, if at all, by evidence, which shows that he is guilty of that offense, alone.</p> <p>2. Criminal Law — Other Offenses — Trial—Evidence.—The proof against one upon trial for a crime, of independent, distinct and unconnected offenses from the one being tried, is, ■ in nearly all cases, prejudicial, and the exceptions to the rule are, where the accused has committed several criminal acts, which are so connected with regard to time and place, as to form one transaction, and without proof of them all, it is impossible to present the evidence of his guilt of the one under trial; or when the accused' substantially admits the act charged, but seeks to avoid its consequences by a claim of a lack of guilty knowledge or intent, then other criminal acts, similar to that of which he is accused, is< admitted to show guilty knowledge or intent; or where the proof tends to show, that the accused has committed another crime to enable him to commit or conceal the one for which he is being tried; or when a crime is committed by novel means, or in a particular manner, it may be shown; that the accused has committed' other distinct offenses, in the same manner, for the purpose of identifying him as the perpetrator of the one for which he is being tried.</p>

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

<p>X Bills and Notes — Pleas of Non Est Pactum — Evidence—Sufficiency. — In an action on a promissory note, evidence on a plea of non est factum examined and held to make a question for the jury.</p> <p>2. Bills and Notes — Consideration—Evidence—Question for the . Jury. — In an action on a promissory note, evidence that the note was executed without consideration, held to make a question for the jury.</p> <p>•3. Bills and Notes — Actions—Pleadings—Consideration—Necessity of Alleging and Proving. — Under our statute and decisions, a promissory note imports a consideration and it is not necessary for the holder in declaring on such a note, either to allege or prove the consideration.</p> <p>4. Bills and Notes — Actions—Proof—Consideration—Necessity.—If in an action on a promissory note which imports a consideration, the pleader unnecessarily alleges the consideration, it must be proved.</p> <p>5. Bills and Notes — Actions—Want of Consideration — Burden of Proof — Effect of Exhibit. — In an action on a promissory note, the mere filing of the note which recited the consideration for which it was given, did not have the effect of placing on the holder the burden of proving the consideration.</p> <p>6. Bills and Notes — Actions—Consideration—Instruction.-—In an action on a promissory note, an instruction apparently placing the burden of proving the consideration on the holder, held not prejudicial.</p> <p>7. Witnesses — Bills and Notes — Transaction With Decedent — Competency of Payee and Assignor. — The payee and assignor of a note is not rendered competent to testify that he was present and saw the decedent sign the note, by the fact that' the decedent’s executrix and devisee testified that the signature on the note was not in the handwriting of the decedent; her evidence being the mere expression of an opinion and not relating to the transaction concerning which the payee and assignor'offered to testify.</p>

<p>1. Infants — Action by Guardian for Sale of Land. — An infant may . sue for the sale of lands owned by him, jointly with others, under Section 490, Civil Code, by his guardian, and if, at the time the suit is instituted, the guardian has been duly appointed and qualified, a judgment for the sale of the lands is not void, although the record evidence of the guardian’s appointment and qualification is not on file at the time of the rendition of the judgment, as the infant is before the court, and the court has jurisdiction of him, . if the pleadings make the proper averments, as to the authority i of the guardian.</p> <p>2. Infants — Sale of Infant’s Lands — Deed to Purchaser. — A purchaser, - at a sale of an infant’s lands, under Section 490, Civil Code, where the infant sued by his guardian, can not be required to accept a deed and pay for the property, until it is made to appear upon the record, that the guardian has been duly appointed and qualified.</p> <p>3. Infants — Sale of Real Property — Judge Ordering Sale Cannot -Become Purchaser. — A judge of a court, who has the ordering, conducting, or confirming the sale of an infant’s real property, is a trustee for the infant, and can not become the purchaser of the property at the sale, and, if he does so, the sale will.be void and will be set aside upon exceptions by the infant or his proper representative.</p>

<p>1. Judicial Sales — Policy of the Law. — The law favors tbe division and allotment of land, in kind, rather than a sale for division of proceeds.</p> <p>2. Judicial Sales — Division of Proceeds. — In an action for the sale of land and a division of the proceeds, one of the joint owners of three tracts may ask and have allotted to him his entire share of the three tracts to be laid off, in kind, from one of the three tracts adjoining a fourth tract owned individually by him, if this can be done without materially injuring the vendible value of the residue of the three tracts.</p> <p>3. Judicial Sales — Allotment—Division of Proceeds.- — Even though a division of land among fourteen different co-owners would materially, injure the estate, yet in an action for a sale for division of the proceeds, one co-owner may be allowed to have an allotment, in kind, of his share provided the saleable value of the residue be not injuriously affected.</p>

<p>Adverse Possession — Boundaries.—Where one is mistaken as to the location of his line and makes his enclosure extending beyond the true line with the intention of claiming only to thé true line, his claim will extend only to that line, but if he contends that the true line is beyond his enclosure and he makes it with the intention of claiming to the true line and continues to hold land claim the land thus enclosed for the statutory period of fifteen years, he will obtain a title to all of the land within the enclosure by adverse possession, since it is the intention with which the holding and claim are made that governs in determining whether it is adverse or 'amicable.</p>

<p>1. Bills and Notes — Parol Evidence. — A written instrument, suclt as tbe note in controversy in this case, can not be attacked or varied by parol evidence, unless fraud or mistake is alleged.</p> <p>2. Principal and Surety — Defenses.—In order to be available, the defendant who relies upon his suretyship, must plead affirmatively in his answer, the terms of the contract by which defendant was induced to become surety, and aver the omission of the same or some part thereof from the writing, otherwise proof of the existence of such contract is incompetent.</p> <p>3. Bills and Notes — Negotiable Instruments Law. — As between the original parties to a note the maker may plead an equitable defense as the negotiable instrument law has no application.</p>

<p>1. Homicide — Dying Declarations — Competency.—It is essential to the competency of the dying declaration of a victim of a homicide, as evidence, of who was the -perpetrator of the homicide, and the manner of its doing, that, at the time, the declaration was made, he was then under the belief that death was impending and his dissolution near, and when he had given up all hope of recovery.</p> <p>2. Homicide — Dying Declarations — Self Serving Declarations. — Declarations of one, who is accused" of a homicide, made before the tragedy, as to the relations between him and his victim, and not in the presence of the victim, are self serving, and are not competent evidence, in his behalf, upon the trial.</p> <p>3. Criminal Law — Threats—Evidence.—Where one speaks a threat indirectly or by innuendo, but where all the circumstances show to whom the threat refers, it is provable against the utterer.</p> <p>4. Homicide — Clothing Worn by Deceased — Evidence.-—The clothing' worn by the victim of a homicide is not admissible, as evidence, against one accused of his murder, unless it is first proven that the clothes offered are the same as worn by the deceased at the. time he received the fatal wounds, and are in the same condition as then, but, their admission, without proof of their unchanged. condition, is not prejudicial, unless it appears, that some improper use of them was made, or they had been changed, which was prejudicial to the accused.</p> <p>5. Criminal Law — Appeal and Error. — It is not a reversible error to refuse to allow a witness to answer a question, where there is no avowal of what answer the witness would make, if permitted to do so. •</p> <p>6. Criminal Law — Threats—Evidence.—Where the issue, in the trial of one for a felonious homicide, is, whether the accused or deceased began the encounter, threats of violence made'by the deceased against the accused are provable, whether they have or have not been communicated to the accused previous to the homicide.</p> <p>7. Criminal Law — Self Defense — Evidence.—Upon the trial of one accused of a felonious homicide, especially, where the defense is self defense, the relations of the parties to each other is always competent, as evidence, and relevant, and the relations may be shown by proof of previous quarrels and hostile acts, but, the de* tails of previous quarrels and acts are- not ordinarily provable for that purpose.</p> <p>35. Criminal Law — Hostile Acts and Quarrels-1 — Evidence.—For the purpose'of proving, whether an unfriendly or revengeful spirit is borne by one party to a homicide against the other, when sufficient latitude is allowed, in the proof of the circumstances of hostile acts and quarrels, to show the animus of the parties, and to what extent, one of the participants may reasonably be apprehensive of danger, at the hands of his adversary, the purpose of the evidence is accomplished.</p> <p>3. Criminal Law — Evidence—Prejudicial Error. — The rejection of evidence offered by a defendant, which is merely technically competent and relevant, is not a ground for reversal of the judgment of conviction, but the rejected evidence must, also, have been important for the defendant, and its rejection such as amounts to a prejudice to his substantial rights, in view of the entire case, as presented.</p> <p>10. Appeal and Error. — The Court of Appeals is a court of review, and upon appeals, its duty is restricted to the determination of the soundness and correctness of the decisions and actions of the tribunals of original jurisdiction, from whose judgments appeals are prosecuted, and the correctness of the judgments is determined from the records made in the courts of original jurisdiction.</p> <p>11. Criminal Law — Change of Venue in Felony Case. — The circuit court can not order, a change of venue for the trial of a felony, unless one or the other of the parties desires it, and makes a motion or files a petition therefor; nor can the Court of Appeals reverse a judgment, because a change of venue was not ordered, when the defendant did not seek it in the trial court.</p>

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

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

<p>1., Intoxicating Liquors — Soliciting in Local Option Territory — Where Not in Violation of Law. — The mere soliciting, in local option territory, of orders for the sale of spirituous, vinous or malt liquors for the personal use of the purchasers, where the sales are in fact made hy the delivery to a common carrier of the liquor in wet territory hy the licensed dealer, on receipt of the order and the money therefor, for shipment to the purchaser and consigned to the latter, is not an offense against the local option law.'</p> <p>2. Intoxicating Liquors — Soliciting in' Local Option Territory — When > in Violation of Law. — Where, however, the solicitor of such orders is under employment from the liquor dealer, and, in addition to obtaining them and receiving the money for the liquors, forwarding the orders and accounting to the liquor dealer for the money, receives the liquor following its shipment at the place of destination, delivers it in person to the several purchasers and thereafter gathers up and returns to the liquor dealer the casks or bottles in which the liquors were received .by the purchasers, such facts, together with proof of his having in his possession in local option territory within twelve months before his indictment, 200 casks of beer, each containing 10 dozen bottles of beer, warranted his conviction of the offense charged in such indictment, namely: of having in his possession such liquors for the purpose of selling same in local option territory; and this would be so though the liquor were shipped from another State.</p> <p>3. Intoxicating Liquors — Local Option Law — Sale—Statute.—If any part of a transaction ending in a sale of intoxicating' liquors occurs in local option territory, though some essential part is done elsewhere for the purpose of evading the penalty of the statute, it is to be deemed, in prosecutions under the statute, that the whole transaction occurred within the prohibition district, if the effect or result is that the seller furnishes the liquor to the buyer so that he at last gets it in that district by reason of the whole transaction; and such proof as would, in the state of case above indicated, authorize a conviction for the selling of such liquor in local option territory, would, with the added proof of the defendants having in his possession in local option territory an unusual quantity of such liquors, warrant his conviction of the offense denounced by section 2557b, subsection 2, Kentucky Statutes.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, No. 4).</p>

<p>Petition for Rehearing.</p>

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

<p>1. Executors and Administrators — Limitation—(Right to Set Off Debt Due by Heir Against His Share. — In a suit' to settle the estate of an intestate, a demand against one of the distributees that is barred by the statute of limitation cannot be deducted from his distributable share, but a debt that is not barred by limitation may be deducted.</p> <p>■2. Limitation of Actions — When Not Bar to Defensive Plea — CounterClaim. — In a suit on a contract the plea of limitation is not available in bar of a defense growing out of the contract or transaction that is the basis of the suit.</p> <p>3. Limitation of Actions — Set Off.- — A debt barred! by the statute of limitation cannot be pleaded as a set-off.</p>

<p>Fraud — In Execution of Deeds — Sufficiency of Evidence. — When it is sought to overthrow a deed upon the ground of fraud or deceit, the evidence must he clear and convincing.</p>

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

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

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

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

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

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

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

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

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

<p>1. Railroads — Trespasser on Bridge — Duty Owing to. — The only duty that trainmen owe to a trespasser is to exercise ordinary care by all the means at command to avoid injury to him, after his presence is actually discovered. The same rule applies on a bridge or trestle as to trespassers at any other place. The fact chat the engineer if he had been looking might have discovered his presence sooner than he did, will not make the company liable, as no lookout duty is due to trespassers.</p> <p>2. Railroads — Notice to Employe That Trespasser Is on Track— When Under Duty to Warn Engineers. — Where a station agent knew that a person in a drunken and helpless condition was on • the track, it was his duty to warn a passing train of the presence of the trespasser, when he had opportunity to do so; but a watchman at a bridge was under no duty to give warning to the engineer of the fact that a sober, intelligent man was on the bridge, when he had previously warned the man that a train was coming and not to go on the bridge.</p> <p>3. Railroads — Trespassers on Bridge — Notice to — Duty of Engineer.— Where an engineer saw a man on a bridge whom he believed to be a bridge carpenter who would get out of danger as soon as he ' was warned, he was not remiss in his duty because he did not apply his emergency brake until after he had sounded the alarm whistle and discovered that the man was a trespasser and not a bridge workman.</p>

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

<p>d.. Negligence — Contributory Negligence — Question for Jury. — A chain carrier, directed by the mine engineer to wait until bis return, placed himself in front of a loaded coal car on a steep grade held in position by a prop, which the engineer brushed against or stumbled over upon his return, after which the car started and injured the chain carrier. In an action for damages for his injuries, the chain carrier is held to have been in the line of his duty ‘ and the question of his contributory negligence was for the.jury.;</p> <p>;2. Master and Servant — Negligence—Fellow Servant — In such'action,, the mine engineer held to be a fellow servant of plaintijf and his-;. superior in authority, and for his injuries plaintiff could recover-for the gross negligence of the engineer.</p> <p>3. Master and Servant — Negligence—Trial—Instructions.—In such-action, an instruction making defendant’s liability to depend on. -willful rather than gross negligence was error.</p> <p>4. Master and Servant — Negligence—Proximate Cause — Trial—Instructions — In such action, instructions held erroneous in failing to» define and submit the questions whether the proximate cause of. the injury was the negligence of the defendant in propping the car or of the mine engineer in knocking the prop from it.</p> <p>6. Negligence — -Pleading.—An allegation of negligence includes-gross, as well as ordinary, negligence.</p>

<p>1. . Master and Servant — Injury to Servant — Safe Place to Work — ! Command of Master — Effect.—Although a mining company is under no duty to furnish a miner engaged in pulling, stumps, a safe place to work, yet if the miner protests against proceeding with the work and intends to stop, and the company’s foreman gives him a, direct command to go on with the work, the mere giving of the command, if negligently done, is sufficient to impose liability on the company, although no other negligence is shown'.'</p> <p>2. Master and Servant — Safe Place to Work — Command of Master— Negligence. — In a miner’s action for personal injuries, evidence of the mine foreman’s negligence in commanding plaintiff to proceed with the work considered and held sufficient to take the question to the jury.</p>

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

<p>1. Trespass to Try Title — Proof.—In an action of trespass to try title, plaintiffs proved title under the Hudson and Wait patent of 1855 based on warrants issued by Whitley county, and also under patents issued August 8, 1882, on separate surveys of 200 acres each after the land in controversy was located in Whitley county by “an act to establish the dividing line between the counties of Wayne and Whitley in this State,” which became a law April 22, 1882, acts 1881-82, vol. 2, page 815. No grant prior to these subsequent patents other than the Hudson and Wait patent, was shown: Held, that even if the Hudson and Wait patent was void as to the land in controversy because the land, then lay in Wayne county and not in Whitley county which issued the warrants, a question not necessary to be decided, plaintiffs proved a good title of record under the subsequent patents of 1882 issued on surveys made after the land was clearly located in Whitley county by the act referred to.</p> <p>2. Adverse Possession — Color of Title — Deed—Delivery—Possession. —Even if an unrecorded deed may constitute color of title, a question not decided, it is necessary that the grantee take and hold possession thereunder.</p> <p>3. . Adverse Possession — Color of Title — Deed—Delivery—Presumption. — While it is the rule that a deed found in the possession of . the grantee, will be presumed to have been delivered on the day ,of its date and its mere subsequent acknowledgment does not change this presumption, this presumption may be overcome by other circumstances.</p> <p>4. Adverse Possession — Color of Title — Deed—Delivery—Presump- - tion. — Where there is no proof of the delivery of a deed except that arising from its acknowledgment and recording, and it appears that the grantor had no title, that the deed was not acknowledged and recorded until about • eleven years after its date, and that the grantee immediately reconveyed to the grantor, and that the grantor two years after the date of the deed sold the land to . another, who retained possession for two or three years and then delivered the possession to the grantor, these facts are sufficient to overcome the presumption that the deed was delivered, on the day of its date and to raise the presumption that it was not delivered until it was acknowledged.</p> <p>5. Adverse Possession — Extent of Occupancy — Color of Title. — The only way that an adversary entrant on land may extend his possession beyond his close as against the superior title holders, is to claim and hold the remainder of the land, either under color of title or to a well marked boundary for a period of fifteen years.</p> <p>6. Adverse Possession — Extent of Occupancy — Color of Title-Well ' Marked Boundary — Evidence.—In an action of trespass to try title, evidence that defendants, who had entered upon and enclosed a portion of the land, claimed and, held the remainder either under, color of title or to a well marked boundary for a period of 15 years, examined and held insufficient to make a question for the jury. .</p>

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

<p>JL Appeal and Error — Dismissal.—While Civil Code, section 734, declares that an appeal shall be granted “as matter of right to a party or privy against a party or privy by the court rendering the judgment,” it is equally mandatory in its requirement that the party or privy desiring the appeal must ask or move the court for the granting of such appeal during the term at which the judgment is rendered; otherwise the appeal must be applied for to the clerk of the Court of Appeals by filing in his office a copy of the judgment from which the appeal is taken. As in this case neither of the methods for taking the appeal provided by section 734 was followed the appeal must be dismissed.</p> <p>3. Appeal and Error — Dismissal—Damages—Supersedeas Bond. — ■ The dismissal of the appeal, however, does not, in this case, entitle the appellee to the ten per cent, damages asked by reason of appellant’s execution in the circuit court of a supersedeas bond. As there was no appeal granted by that court the taking of the supersedeas bond by the clerk thereof was' unauthorized. Civil Code, section 749. Therefore, the bond, as well as the supersedeas issued thereon, was void. Hence, damages cannot be awarded appellee on the bond.'</p>

<p>1. Mortgages — Deeds—Absolute Deed-on Face as Mortgage. — It is. a generally established rule that a deed absolute upon its face may be shown, by parol testimony, to have been intended as a mortgage; and, contrary to the general rule, this relief may be had in Kentucky without an allegation of fraud, accident or mistake.</p> <p>2. Mortgages — Deeds—Writing Construed as Mortgage. — When a. doubt exists as to whether a writing is a deed or a mortgage, that doubt will be resolved in favor of the debtor and the writing construed to be a mortgage.</p> <p>3. Vendor and Purchaser — Option—Conditional Sale. — Where land is sold with an option reserved to the vendor to repurchase it by the payment of a certain sum within a specified time, the sale is-known as a conditional sale, and will become absolute upon the failure to pay the stipulated sum at the time specified.</p> <p>4. Vendor and Purchaser — Mortgage—Conditional Sale. — The test as. .to whether a conveyance is a mortgage.or a sale is to ascertain whether it is a security for the payment of money, or for the per-' formance or non-performance of an act or thing. If the transaction resolves itself into a security, whatever be its form, it is, in equity, a mortgage. If it is not a security then it is either an absolute sale or a conditional purchase. If the debt is extinguished, leaving the grantor to pay or not, as he chooses, and thereby entitle himself to a reconveyance, the transaction is a conditional sale.</p>

<p>1. Guaranty — Absolute Guaranty — Nature of Liability. — Where the principal obligor agrees to purchase goods from the obligee and pay the account as’ charged at wholesale prices, and by the same instrument the performance of the contract is guaranteed by the defendants, the guaranty is absolute, and the guarantors are unconditionally bound to satisfy the obligation at its maturity, and prior legal proceedings by the obligee against the principal debtor are not necessary to a recovery against the guarantors.</p> <p>2.. Guaranty — Conditional Signing — Fraud of Principal. — If one sign an instrument as surety or guarantor and place it in the hands of the principal to be delivered only on the condition that it be signed by another surety or guarantor and the principal delivers the. instrument to the obligee without complying with such condition, the surety or guarantor is nevertheless bound unless the obligee has notice of the condition or information sufficient to put a person of ordinary prudence on inquiry.</p> <p>3. Guaranty — Fraud of Principal — Notice—Agency of Principal Obligor. — Where it is necessary for the principal obligor to have his contract guaranteed by others before it becomes binding on (the parties, he acts for himself in obtaining the signatures of the (guarantors and not as agent of the obligee and notice to him of (.the conditional signing by the guarantors, is not notice to the obligee.</p> <p>4'. Guaranty — Fraud of Principal — Conditional Signing — Notice-Evidence. — In a suit on a contract of guaranty, certain circumstances examined and held insufficient to show either actual or constructive notice on . the part of the obligee of the conditional .signing by the defendant guarantors.</p> <p>5. Pleading — Amended Answer — Conforming Proof — Rejection.—An amended answer presenting the plea of estoppel and tendered for the purpose of conforming to the proof, is properly rejected when not sustained hy the evidence.</p>

<p>1. Husband and Wife — Guaranty or Suretyship. — A married woman can not assume the debt of her husband, nor of any one else, nor be bound as a surety, except in the way and manner designated by the statute, section 2127, Kentucky Statutes.</p> <p>2. Husband and Wife — Mortgage—Joinder of Husband. — A married woman, her husband joining with her, is authorized to mortgage her -real property to secure the husband’s debts, and the mortgage will be binding upon her, if voluntarily made and fairly understood.</p> <p>3. Husband and Wife — Guaranty or Suretyship. — It does not matter what the form of the undertaking is or what the parties'may call the undertaking of a married woman, if it is, in fact, an assumption by her of the debt of another, she will not be bound, unless she makes the undertaking in the manner provided by the statute, and in such transactions the court will look to the substance and not the form of the undertaking.</p> <p>4. Contracts — Duress.—Duress will not avail as a plea to defeat a contract, unless the one who is seeking to enforce the contract or his agent imposed the duress; or it must be done with his knowledge and taken advantage of by him to secure the contract.</p> <p>5. Contracts — Consideration.—A consideration sufficient to uphold a contract is some benefit to the promisor or some loss, forbearance or detriment to the promisee.</p> <p>6. Appeal and Error — Clerical Misprision. — An appeal will not lie from a judgment because of a clerical misprision, until after a motion is made to correct it, in the court, which rendered it.</p>

<p>Attachment — Pleading.;—In order to have an attachment in a case where the amount claimed is more than fifty dollars, a written, petition must he filed before the order of attachment is issued.</p> <p>2. Attachment — Affidavit for — Amendment.—A defective affidavit for attachment, if amended, will not relate back to the time of its filing so as to prejudice the rights of intervening attaching creditors.</p> <p>3. Attachment — Appeal and Error. — Although several small claims may not be added to give the court jurisdiction, yet where one attaching creditor has a claim for eight hundred dollars, and three other attachments are issued and served, prior to his, amounting in the aggregate to more than two hundred dollars, and the lower court adjudges the three smaller attachments prior to the greater, this court will entertain the appeal because as to the larger claimant the amount in controversy is the total of the smaller claims adjudged prior to his.</p>

<p>1. Contracts — Consideration.—If any part of a single consideration or one or more or several considerations for a single promise are illegal and vicious, the entire promise is void, and will not he enforced.</p> <p>2. Contracts — -Consideration.—If the consideration or several considerations for several promises are legal and valid, and some of the promises are legal and others illegal, and the performance of .the legal promises can be separated from the illegal ones, the legal promises will he enforced, and the illegal ones held void.</p>

<p>Carriers — Action Against for Lost Baggage. — A traveling salesman, or his principal, who checks his trunk of samples as baggage, may-have a recovery for the loss thereof, if it appear that the railroad company received and checked the trunk as baggage, at the time knowing the contents thereof; or, where, by universal custom, the railroad company carries drummers’ samples as baggage,</p>

<p>1; ' Taxation — Property Within Jurisdiction of State — Commerce.—A state cannot tax the privilege of carrying on commerce’ among ■ the states: neither can it tax property outside of its jurisdiction belonging to persons domiciled elsewhere. But it can tax prop- • erty permanently within its jurisdiction although belonging to- • persons domiciled elsewhere and used in commerce among the-states; and when that property is part of a system and has its actual uses only in connection with other parts of the system, that . fact may be considered by the state in taxing, even though the-, other parts of the system are outside of the state.</p> <p>2.' Taxation — Gross Receipts of Corporation — Commerce.—While a state cannot levy a tax upon the gross receipts of a corporation • doing interstate business, or require the payment of a tax as a. ’ condition precedent to the doing of such business, it may use such gross receipts, or like elements, fairly to measure a tax in itself lawful, and without the necessary effect of burdening interstate-commerce.</p> <p>3.’ Taxation — Corporations Engaged in Interstate Commerce. — Corporations and companies engaged in interstate commerce should, bear their proper proportion of the burdens of the governments , under whose protection they conduct their operations;- and, taxation on property, collectible by the ordinary means, does not affect interstate commerce otherwise than incidentally, as all business is affected by the necessity of contributing to the support of 'government.</p> <p>4.; Taxation — Foreign Steamboat Corporation. — A foreign steamboat < corporation doing interstate business in this state, and owning-i tangible property therein, is liable to the payment of a franchise-tax provided by section 4077 of the Kentucky Statutes.</p>

<p>Appeal from' Christian Cirenit Court.</p>

<p>1. Mandamus — Executors and Administrators — Inventory of Estate. —The requirements for the filing of an inventory by the personal representative of his decedent’s estate before the county court as required by section 3855 of the Kentucky Statutes is mandatory, and the duty of the county judge to compel it to be filed is purely ministerial, he having no discretion to refuse it, and such ■duty on his part may be compelled by mandatory process.</p> <p>0. Mandamus — Discretion of Officer. — Mandamus is a proper remedy to compel an officer to perform a purely ministerial act or to exercise discretion lodged with him, or to render a judgment in a matter pending before him, but it cannot be employed to control his discretion, or to direct him to render a particular kind of judgment.'</p> <p>3. Mandamus — Executors and Administrators — Inventory of Estate.— Where the inventory, required by section 3855 had been filed and it was sought by. rule against the administrator to have it corrected so as to include other property which the administrator : insisted should not be included, the correctness of which depended upon the determination of certain facts brought in issue, the county judge can not be compelled by mandamus to require the personal representative to amend his report so as to include the alleged omitted property, since his action in declining to do so is judicial and involves the exercise of discretion.'</p> <p>4. Mandamus — Executors and Administrators. — The action of the county judge in declining to issue a rule against a personal representative under circumstances included in the preceding paragraph is an order from which an appeal may be prosecuted under the provisions of section 978 of the Kentucky Statutes, as it is a part of. the settlement of an estate of a decedent, being a step therein, and because of this the circuit court properly, declined to grant a mandatory writ compelling the county judge to issue, the rule asked requiring the personal representative to include in his inventory the alleged omitted property.</p>

<p>1. Master and Servant — Safe Place to Work — Assumption of Risk.— It is the duty of the master to furnish the servant a reasonably safe place in which to perform his work. But, notwithstanding this, if the danger is so imminent or obvious that a person of ordinary prudence would not have undertaken the work, and the servant with such knowledge undertakes to use the place in the performance of his work, he will be deemed to have assumed the risk, and, if injured, the master will not be liable.</p> <p>2. Master and Servant — Contributory Negligence. — Although a place may be one where the servant in the performance of some parts of his duty may have a right to be, yet if he is injured at that place at a time when his immediate duties do not require him to be at that place, and at a time when it is obviously and necessarily dangerous, he will be charged with contributory negligence so that neither he, if injured, nor his administrator, if he is killed, may recover therefor from the master.</p> <p>3. Master and Servant-^-Assumption of Risk. — Contributory Negligence. — The servant was fireman of the boiler on a locomotive crane which was adjusted upon a flat car so that it would revolve when being operated, and could also be made to revolve when the car' was operating up and down the track. Besides firing the boiler, a part of the duties of the fireman was to throw switches when the crane was engaged in unloading Or loading other cars. While thus engaged the crane was moving along the track for a distance of about eighty feet, and at the same time it was being revolved so as to get the boom in position, and while doing so the servant was caught by the boiler end of the crane, between it and the side of the car, sustaining injuries .from •which he died. At the place of the injury the servant was riding on the car, but it was one of imminent and obvious danger, and was not a place where it was his duty to be at the time — Held that if the place was one where the servant had a right to be it was a .risk which he assumed, because of the obvious danger, and if he had no right to be there he was guilty of contributory negligence, and in either event the master was not liable.</p>

<p>X. Statutes — Contemporaneous Construction. — Where contemporaneous construction of a statute by administrative officers and circuit courts is not uniform, it is without weight in the construction of an ambiguous statute. -</p> <p>2. Statutes — Contemporaneous Construction. — Only in the event of ambiguity of a statute may resort be had to the rule of contemporaneous construction by administrative officers.</p> <p>3. States — Claims—Circuit Clerks — Statutes.—Under section 355, Kentucky Statutes, allowing claims to be paid out of the State treasury for' excusing jurors, circuit clerks- cannot charge for excusing persons summoned, but not accepted for jury service, upon special'venire, because (1) the term “juror” having a dual meaning, the legislature never intended that meaning which would result in an inequitable allowance to clerks, and (2) because it is neither necessary nor usual to enter an order excusing jurors who have never been accepted and sworn as such.</p> <p>4. Statutes — Words and Phrases — Juror.—The term “juror” as used in section 355, Kentucky Statutes, has reference only to such, jurors as are actually accepted and sworn.</p> <p>S. Overruled Cases. — Auditor of Public Accounts v. Cain, 22 Ky. L. R., 1888, is overruled.</p>

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

<p>1. Municipal Corporations — Pavements—Plan for Construction of — r Liability of City. — Municipal authorities in adopting and executing plans for street improvements have broad latitude and discretion, and unless the improvement when made according to' the plan is unsafe and dangerous for the use for which it was. intended the city will not be liable for accidents caused by plan.</p> <p>2. Municipal Corporations — Pavements—Plan for Construction of— Duty and Liability of City.. — A city is under a duty to keep its. pavements in reasonably safe condition for public travel, and. if, pursuant to a plan adopted it so constructs them as that they are not reasonably safe for public travel, its liability will be the-same as if, after their construction, it had permitted them to' become unsafe for public travel.</p> <p>3. Municipal Corporations — Pavements—Plan for Construction of — ■ Duty and Liability of City. — The duty of a city to keep its streets- and pavements in reasonably safe condition for public travel is a continuing one, and it is immaterial whether the unsafe and dangerous condition is due to a defective plan, or to conditions that the city permits to come up after the construction of the street pursuant to the plan.</p> <p>4. Municipal Corporations — Pavements—Plan for Construction of — • Duty and Liability of City. — When a pavement is reasonably safe for public travel and is maintained free from dangerous defects or obstructions the city is not liable for accidents to travelers merely because the plan or method of construction was not as safe or accessible or convenient as it might have been.</p> <p>5. Municipal Corporations — Streets and Pavements — Grade to Natural Surface. — A city may build its streets and pavements on a grade to conform to the natural surface of the ground, or on an artificial grade, without by reason of this fact alone subjecting itself to liability to persons who may fall on account of th» grade.</p> <p>C. Municipal Corporations — Streets and Pavements — City Not Insurer of Safety of Travelers; — A city is not the insurer of the safety of persons who travel its streets or pavements.</p> <p>7. Municipal Corporations — Streets—Action for Negligence — Question for Jury. — If upon the facts there are reasonable grounds-for difference of opinion concerning the proposition whether the city exercised ordinary care to keep its streets or pavements in. reasonably safe condition for travel, the question is for the jury, but where there is no ground for reasonable difference of opinion, the question is for the court.</p> <p>S. Municipal - Corporations — Streets and Pavements — Action for Damages — Contributory Negligence. — Where there is a defect in. the pavement the question of contributpry negligence is generally for the jury; but when the defect is so obvious as that a traveler in the exercise of ordinary care could not fail to discover it in time to -avoid the danger, his contributory negligence will defeat a recovery.</p> <p>9/ Municipal Corporations* — Notice of Defective Condition of Pavement — Sufficiency of. — Where a pavement was permitted to remain in an unsafe and dangerous condition for three years, the city will be charged with notice of its condition.</p> <p>10. Municipal Corporations — Pavements-—Smooth, Slippery Concrete Surface — Dangerous Condition of — Question for Jury. — Where a city constructed or permitted to be constructed a concrete pavement with a smooth, slippery surface on a grade of two inches to the foot, and numbers of persons slipped or fell on this pavement, it was a question for the jury whether the pavement was maintained in a reasonably safe condition for public travel.</p> <p>11. Municipal Corporations — Evidence—Other Accidents. — In a suit to recover damages for personal injuries caused by a dangerous and defective pavement, it is competent for the plaintiff to show that other persons met with accidents at the same place.</p>

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

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

<p>1. Homicide — Trial—Verdict—Evidence.—Where accused was found guilty of murder, evidence that he, having had a quarrel with a teamster over a trivial matter, left him and in about three-quar- ; ters of an hour returned with a shot gun and shot and killed the teamster without further or any provocation, shows malice and supports the verdict of guilt.</p> <p>2.. Homicide — Evidence—Malice.—The fact that, at the time of the killing, the accused was slightly intoxicated, or that’ previous thereto he and his victim were friends, cannot be held as a matter of law to refute an inference of malice.</p>

<p>1. Principal and Agent — Automobiles—Negligence.—Whether a person who hires from an employe of a motor car company an auto- • mobile standing on the street in front of its garage, without making inquiry as to whether the motor company is the owner of the machine, has the right to look to it for indemnity in the event anything happens, due to the negligence of the driver or the defective condition of the car, is a question raised but not decided.</p> <p>2. Principal and Agent — Automobiles—Negligence.—Where a machine standing on the street in front of a garage, was hired by • • an employe of the garage to- a stranger who made no inquiry ' concerning who owned the machine or in whose employ the chauffeur was, and the uncontradieted evidence shows that- the machine company did not own the machine, or keep it for hire, ©r hire it, or have anything to do with the employment of the chauffeur, the machine company was not liable for the negligence ©f the chauffeur or for defects in the machine. Any person may keep his machine in a garage, and hire or authorize its hiring to anybody that he pleases; and when he does so and engages a chauffeur to run it, the owners of the garage will not be liable for what happens merely because the machine was kept.in their garage, or because one of their employes, who was authorized to do so by the owner of the machine, engaged a chauffeur for him to run the car.</p>

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

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

<p>1. Master and Servant — Appliances—Simple Tool. — An ordinary ax is a simple tool, and where the mode of operating an implement is so simple that a person of ordinary intelligence and experience can at once perceive the safe and proper mode of operating it, and he voluntarily holds and uses it in such a way as to receive injury, and there is no reason why he should so hold or use it, he can not recover damages from the master even though it he defective.</p> <p>2. Master and Servant — Appliances.—A master is under no obligation to examine a tool, such as an ordinary chopping ax, for defects or instruct the servant who has had experience in handling such tools, as to the manner of using same.</p>

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

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

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

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

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

<p>1. Taxation — Review, Correction or Setting Aside of Assessment.— Under section 4128, Kentucky Statutes, a taxpayer who feels himself aggrieved by the action of the board of supervisors, may, within thirty days after the final adjournment of the board, appeal to the quarterly court, and from the judgment of the quarterly court, he may appeal to the circuit court, and to the Court of Appeals, as in other civil cases.</p> <p>2. Taxation — Assessment—Fair Cash Value. — In determining the “fair cash value” of property for taxation, the constitution and statute provide, that it “shall be estimated” at' the ,price that “it would bring at a fair voluntary sale,” and this makes necessary the contemplation of the willingness of the owner to sell and a purchaser willing to buy.</p> <p>3. Taxation — Assessment—How Value Estimated. — Where no recent voluntary sales of similar property have been made from which ' can be estimated the value of property for taxation, where the valúe must be estimated at the price it would sell for at a “fair voluntary sale,” the assessing authorities will táke into'consideration the conditions and circumstances, which surround each particular case, including the extent and location of the property, its-accessibility to market, transportation facilities, cost of construction and equipment, if recent; adaptability to its purpose, and. every element, which will have an influence in appreciating or depreciating its value, and thus determine its “fair cash value, estimated at what it would bring at a fair voluntary sale.”</p> <p>4. Taxation — Equality of Burden. — Equality, as well as uniformity, is a fundamental essential to the lawfulness of the imposition of tax burdens in this state.</p> <p>6. Taxation — Constitutional Law. — Where the property of an individual is valued for taxation at its “fair cash value,” and all other property in the taxing district is valued for one-half or one-third of its “fair cash value,” and a uniform rate of taxation is imposed - upon all, the constitutional essential of equality is violated, and. the individual is denied the equal protection of the laws.</p> <p>6. Taxation — Assessment—Review—Reduction.-—Where, upon appeal from the action of the board of supervisors, it appears that the-property of an individual is valued for taxation at its full value, and .the property of the other taxpayers in the taxing district has . been systematically assessed at one-third or one-half of its value, ' the court being without power to otherwise- produce equality in the tax burdens, will order the assessment of the individual’s-property to be reduced from its full value and assessed at the same per centum of its value as at which the property of the other - taxpayers is assessed, although the statute provides, that all propérty' shall be assessed at its “fair cash value.”</p>

<p>1. Railroads — Trespassers — Action for Death of — Pleading.— Where in an action to recover of a railroad company damages-for the death of the plaintiff’s intestate, caused by her collision with a passenger train in attempting to cross the railroad track after passing between the engines of two freight trains standing with their attached cars on a side-track, the petition alleges that the death of the decedent was caused by the negligence of the railroad company’s servants in charge of the two freight trains in failing to warn her of the approach of the passenger train; and that the' coming of the passenger train was known to them but was not known to her: Held, that the failure of the petition to allege that the decedent could not, by the exercise of ordinary care, have discovered the approach of the train before it struck her, and that her peril from the approaching .passenger train was discovered by the railroad company’s servants on the freight trains at such time before her collision with the train as that, by the exercise of ordinary care, they could have warned her of the danger and thereby prevented her death, rendered the petition fatally defective. Hence, the action of the circuit court in sustaining a demurrer thereto was not error.</p> <p>2. Railroads — Trespassers—Lookout Duty — Pleading.—Being a trespasser upon the railroad company’s tracks, the servants of the latter on the freight trains were under no duty to keep a lookout for the decedent or for her safety; therefore, the railroad company could not be made- liable for the failure of its servants on the freight trains to warn the decedent of the coming of the passenger train and of her danger therefrom, unless the peril resulting to her from going upon the track was discovered by these servants at such time as that they could, by the exercise of ordinary cafe, have prevented her death. Considered as a whole, the petition, as amended, fails to sufficiently show that the decedent’s death was not caused by her own negligence, and does not state a cause of action against the railroad company.</p>

<p>Trial — Instructions.—When an issue of fact is being tried before a jury, and there is evidence which conduces to prove the affirmative of the issues, and, also, evidence conducing to disprove the affirmative of the issue, it is the duty of the court to submit the» decision of the issue to the jury, under proper instructions.</p>

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

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

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

<p>1. Easements — Passway—Implied Grant — Obstructions.—By tbe sale , and conveyance of a part of a tract of land, connected with the county road only by a passway over the unsold part of the land, there was an implied grant of right to use such passway, appurtenant to' the land conveyed; and the owner of the dominant estate may enjoin the owner of the servient estate from obstructing such passway.</p> <p>:2. Easements — Passway—Inconsistent Uses. — The erection by the owner of the servient estate of bars or a gate across such passway upon the boundary line between the two estates, is not inconsistent with the rights of both parties under the easement.</p> <p>3. Easements — Passway—Termination.—The owner of the servient estate cannot defeat such easement by the cultivation of the passway for one year, or by immaterial changes in its location, or by its adverse possession for less than the statutory period.</p>