Volume 179 — Kentucky Reports

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

<p>• Sales — Verbal Sale of Personal Property — Rights of Creditor of Vendor Who Retains Possession. — Where a purchaser of personal property verbally agrees that another person shall be the owner of it, this agreement will not affect the rights of a creditor or a mortgagee of the purchaser whose debts were created without notice of the verbal agreement while the property was in the possession of the purchaser.</p>

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

<p>1. Mortgages — Defeasance—Collateral Verbal Agreement. — A purchaser of improved real estate had it conveyed to a third party to secure payment to him of the purchase money advanced under a written agreement to pay to the purchaser $1,000 and take absolute title to the property, if the purchaser failed to redeem it at the time stipulated. Evidence held to establish a verbal agreement, collateral to the defeasance agreement, that whoever of them should become the owner of the property should reimburse the other for expenditures made upon the property by him and necessary to make it productive.</p> <p>2. Interest — Tender.'—The tender of an amount less than the indebtedness does not stop the interest on the debt.</p>

<p>Highways — Automobiles—Collision With Vehicle — Injury to Occupant — Negligence—Question of Law. — Where an automobile approaching from the rear comes in contact with a wagon which the driver of the machine sees, and his only excuse for the accident is that the wagon was in the way and he miscalculated the distance, he is guilty of negligence as a matter of law, and in an action by an occupant of the wagon for damages due to the collision, where no question of contributory negligence is presented, the trial court should so direct the jury and leave to its determination, only the question of damages under a proper instruction.</p>

<p>1. Railroads — Indictment Against for not Providing Suitable Waiting Room — -Evidence.-—A railroad company is required by section 772 of the Kentucky Statutes to provide a convenient and suitable waiting room, and by section 784-to keep its waiting room open thirty minutes before the schedule time of departure of trains. Under an indictment against the company for failing to provide a convenient and suitable waiting-room, evidence that it was not properly heated or ventilated should be limited to thirty minutes before the schedule time of departure of trains, and the instructions should conform to the evidence on this point.</p> <p>2. Railroads — Evidence of Incorporation not Necessary. — In a prosecution against a foreign railroad company for violating a statute it is not necessary to prove the incorporation of the company as it will he presumed that all railroad companies are incorporated in this state that operate railroads in the state.</p>

<p>1. Witnesses — Competency — Joint Interest — Statement of Person Since Deceased. — In an action against the joint makers of two promissory notes, one of them, though not served with summons, was not competent to testify for the other as to statements made by the payee’s agent who was then dead.</p> <p>2. Fraud — Stock and Stockholders — Sale of Stock — False Financial Statement. — Vice President and Director — Constructive Knowledge ■ — Actual Knowledge — Evidence.—Plaintiff, who was vice president' and director of a corporation, sold her stock to the president and others acting jointly with him. The president- had the bookkeeper of the corporation prepare a financial statement which it is claimed was false and induced the purchase. Held, in an action by plaintiff to recover on notes executed in part payment of the stock, that inasmuch as the transaction was a private one and involved the performance of no official duty on the part of plaintiff, she should not be charged with constructive knowledge of either the preparation, falsity, or use of the financial statement, and as there was no competent proof that she or her agent making the sale had actual knowledge of such facts, the defense of fraud and misrepresentation was not made out, and the trial court properly directed a verdict in her favor.</p>

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

<p>1. Criminal Law — Conduct of Jury — Trial.—Where some of the jury in a criminal case entered a store and bought tobacco, and others conversed briefly with friends upon the street, and all of said acts and conversations were within the presence of the sheriff and the other jurors and the conversations had no relation to the case upon trial, the defendant was not prejudiced 'and the trial court properly refused to discharge the jury.</p> <p>2. Trial — Instructions.—An instruction should not be given when there is no evidence upon which to base it.</p> <p>3. Criminal Law — Appeal and Error — Malice Aforethought. — It is not a reversible error in a criminal case for the trial court to fail to give an instruction defining “malice aforethought.”</p> <p>4. Criminal Law — Trial—Instructions.—Where, in a trial for murder the court gave an instruction on murder and another instruction on manslaughter, and the jury found the defendant guilty of manslaughter, 'the failure of the court to instruct the jury that if it had a reasonable doubt as to whether the offense committed was murder or manslaughter they should find the defendant guilty of the lesser offense, did not constitute a prejudicial error.</p> <p>5. Criminal Law — Trial—Submission .to Jury. — Where there is ' any evidence, however slight, tending to show the guilt of the accused the case should go to the jury.</p>

<p>1. Fraudulent Conveyances — Evidence—Burden of Proof. — In actions to subject property to tbe debts of one, where the title of the property is in another, upon the ground that the property is in reality that of the debter, but is being fraudulently held by another to prevent its subjection to the debts'of the real owner, the burden is upon him who charges the fraud to show that the property is owned by the debtor and has been fraudulently transferred to the other.</p> <p>2. Fraudulent Conveyances — Consideration—Burden of Proof. — Where it is charged that a deed was executed without consideration, and is therefore fradulent as to existing creditors, and the want of consideration is denieo, the general rule is, that the burden of showing the want of consideration is upon him who alleges it.</p> <p>■ Fraudulent Conveyances — Evidence—Burden of Proof. — In actions under section 1906, Kentucky Statutes, to set aside transfers of property and to subject it to the debts of some other than the apparent title holder, the burden shifts from the one alleging the fraudulent transfer to the parties to the conveyance to prove the good faith of tho conveyance, when it appears, that the transaction is attended with badges of fraud.</p> <p>4. Fraudulent Conveyances. — For one, against whom actions for tort or unliquidated damages are pending, to make transfers of his property is a badge of fraud, especially where the grantor is insolvent or considerably embarrassed with debts.</p> <p>• p. Fraudulent Conveyances — Burden of Proof. — Where it is shown that the grantor was never the owner of the property until the transfer was made, and the grantor, at the time, was embarrassed with debts or insolvent, the conveyance is attended with a badge of fraud, which shifts the burden to the grantee to prove that the conveyance was made upon a valid consideration.</p>

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

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

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

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

<p>1. Insurance — Assignment of Policy. — The assignment,' by the insured, of a policy óf insurance on his life to a creditor as collateral security for a note held against him by the latter, did not divest the former of all interest in the policy. He retained, at least, the right to obtain its restoration at any time during the existence of the note, by paying the note; while on the other hand the assignee had such legal title to the policy as gave her the right of foreclosure, which she might have exercised at any time after the maturity of the note, and the exercise of which would have divested the insured of all interest in the policy. '</p> <p>2. Insurance — -Surrender of Policy — Assignment.—Where a policy of insurance gave the insured the option, within thirty days after the payment of the last annual premium thereon, to make a legal surrender of the policy to the insurence company, and in writing request of it the issuance to him of a non-participating, paid-up policy on his life for $2,500.00, to run for a period of five years and seven months from the date of the payment of the last premium, provided there were no notes, loans or indebtedness due the insurance company from the insured, the right to exercise such option was one personal to the insured, which could not be exercised by the assignee of the latter without a written request from him to the insurance company, to issue the non-participating, paid-up, $2,500.00 policy. Hence, in the absence of such written request from the insured; the ' insurance company’s refusal to issue to the assignee of the latter such non-participating policy in lieu of the existing policy, was proper, as was also the judgmenteof the trial court in limiting the recovery of the assignee after the death of the insured to $998.00, . the cash surrender value of the existing policy.</p>

<p>1. Appeal and Error — Law of the Case — The opinion rendered on the first appeal is the law of the case in all subsequent proceedings covered by the opinion.</p> <p>2. Appeal and Error — Negligence—Submission to Jury. — Where a case is reversed for cause of an utter failure to produce evidence of a negligent jerking start of the train, and upon the subsequent trial plaintiff gave evidence of an unusual, violent and unnecessary jerk which precipitated him from the platform, and introduced a new witness who testified to similar facts, the trial court should have submitted the question of negligence to the jury.</p> <p>3. Carriers — Passengers—Submission to Jury. — In every case where a passenger is exercising ordinary care for his own safety and' is thrown from a train by an unusual and unnecessary jerk or lurch in the operation thereof, he is entitled to go to the jury.</p>

<p>1. Bills and Notes — Defenses—Trial.—'Where in an action upon a note one of the obligors, by answer, alleged that his signature to the note was procured by fraud on the part of the payee, and the evidence heard on the trial wholly failed to prove the alleged fraud, it was not error for the trial court to peremptorily instruct the jury to return a verdict against such obligor for the amount of the note.</p> <p>2. Bills and Notes — Pleading—Non Obstante Veridicto. — A motion of the defendant for a judgment in his behalf non obstante veridicto, based on the ground that the petition upon a note in which he was an obligor was fatally defective because of its failure to allege that the note was not “executed and delivered” by him to the payee, was properly overruled by the trial court. As the petition otherwise sufficiently alleged the execution of the note, that it was a renewal of others previously executed by the defendant and hig co-obligors, .that by its terms the latter promised and agreed to pay the amount of the note at maturity, that the note was accepted by the payee and was riot paid at maturity or at all, rendered unnecessary the additional allegation that it was executed and delivered to the payee. Moreover, the following allegation contained in the defendant’s answer: “He (defendant) denies that he made, executed or delivered said note,” cured the alleged defect in the petition. And the denial by the reply of this negative allegation of the answer, whether necessary or not, put in issue the fact whether the note was executed and delivered.</p>

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

<p>1. Court Commissioners — Reference of Complicated Case to — Practice. — Where a suit in equity involves the settlement of numerous complicated accounts, the chancellor should refer the ease to a commissioner to state the accounts and make a report.</p> <p>2. Court Commissioners — Appeal and Error — Necessity for Commissioner’s Report in Complicated Case. — Where a record involves a settlement of complicated accounts and the judgment of the lower court does not state the reasons for his allowance or rejection of disputed claims, this court will remand the case to the lower court with directions to refer it to a commissioner to state the accounts and simplify the questions so that this court may more readily understand and dispose of them. ■</p>

<p>1. Appeal and Error — Verdicts and Findings — Evidence.—Where the evidence is conflicting, and such as to produce in the mind of a reasonable person a doubt as to the truth, a verdict will not be set aside on the ground that it is flagrantly against the evidence, although it may be against what this court may believe is a preponderance of the evidence.</p> <p>S. Telegraphs and Telephones — Construction and Maintenance. — It is the duty of a telephone company in installing a telephone in a building to exercise reasonable care to so install it as to make it reasonably safe from the effects of lightning which might be conducted into the building over the wires of the telephone, and this duty to exercise reasonable care likewise extends to the proper maintenance of the telephone in the building after it shall have been installed. But if the installation is unsafe, or afterwards becomes so, and the patron of the telephone company has knowledge of it, it' would become his duty to notify the company of the fact and it should remedy the defect within a reasonable time thereafter.</p>

<p>Appeal and Error — Verdict—Sufficiency of Pleadings. — A verdict is not supported by tbe pleadings where a demurrer was sustained to one paragraph of an answer presenting' a defense entirely distinct and separate from defenses presented in the other paragraphs of the answer, upon which issue was joined and submitted to the jury.</p>

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

<p>1. Husband and "Wife — Guaranty or Suretyship. — Under the provisions of section 2127 of the Kentucky Statutes a married woman’s property will not be subjected to the payment of a debt contracted by her as surety for her husband or another unless- it shall have been set apart- for that purpose by a deed of mortgage or other conveyance. But it is not necessary that the purpose for which the property is set apart by the wife be stated or contained in the writing, it being sufficient that the setting apart be evidenced by the conveyance or other instrument executed by the ■ wife.</p> <p>2. Husband and Wife — Setting Apart Property. — Where the wife, in order to secure a debt for her-husband, endorsed in blank the certificate of stock held by her in a corporation and delivered it to her husband for the purpose of having him pledge it for his debt which he did with knowledge on the part of the creditor of the purpose of the wife’s endorsement: Held that this was a sufficient setting apart Of her property as required by the statute.</p> <p>3. Principal and Surety — Indulgence to Principal. — While an extension of time to the principal without the knowledge or consent of the surety will discharge the latter from the obligation, for the extension to have this effect it must be based upon a sufficient consideration so as to be enforceable between the principal and the creditor, and if it is merely an indulgence without any consideration it will not have the effect to release the surety, although the extension may be evidenced by the execution of a new note.</p>

<p>1. Gaming — Device or Implements — Slot Machines. — Whether a slot machine is a gambling device in the meaning of sections 1960, 1967, Kentucky Statutes, depends upon whether its use by the person playing it would enable him to lose or win money or other thing of value by a hazard or chance.</p> <p>2. Gaming — Device or Implements — Slot Machines. — If a slot machine is so 'constructed as that the dropping of a nickel therein will invariably return to the player a package of chewing gum and the dropping of a second nickel another package of chewing gum and, in addition, a chip or chips which may be of greater value than the nickel deposited and good for the purchase of anything of its value in the establishment of the owner of the slot machine, such machine is a gambling device, although the player may learn, before the dropping of the second or subsequent nickels in the machine, from an indicator attached to the machine, how many chips and their value, in addition to the chewing gum, he will receive for the nickel or nickels deposited. While upon depositing the first nickel the player might know exactly what he was to receive from the machine in return, yet the indicator at the end of the play might show that the next nickel deposited instead of drawing only a package of chewing gum, might draw, in addition thereto, as much as a dollar’s worth of chips.</p> <p>3. Gaming — Device, or Implements — Slot Machines. — The only difference between the slot machine here mentioned and that described in the opinion in Allen v. Commonwealth, 178 Ky. 250, is that the former indicates in advance the result of the next play. But that does not make it any less a gambling machine than the one denounced as such in the Allen case, for it is possible for a player to put a nickel in the slot and obtain from the machine a package of gum worth two or three, or even five cents, and checks good for merchandise of the value of one dollar. Consequently, the player would be little inclined to stop as long as the indicator would continue to point at trade checks, at a certainty of gain. Therefore, the player is enticed to continue by the fact that he is getting five cents’ worth of gum for each play with always the chance just ahead that the next presentation of the indicator will give him the opportunity of winning from one hundred to many times that per cent. So the lure is the opportunity to win from ten cents to one hundred cents by the deposit and expenditure of five cents.</p>

<p>Appea-l from Shelby Circuit Court.</p>

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

<p>Negligence — Children—Attractive Nuisance — Care to be Exercised by Owner of .Premises. — The owner of premises where there are dangerous places, appliances, or machinery, attractive to children, is under a duty to take reasonable precautions for the safety of trespassing children, considering all the surrounding conditions and circumstances; but he is not required to keep gates that are on his enclosed premises continually locked, or to build his fences so high that no person can climb over them, or to have his servants continually on the lookout.</p>

<p>1. Master and Servant. — Duty of Master to Injured Servant. — A railroad company is under a duty to exercise reasonable care to save tbe life of an injured servant by furnishing medical treat- . ment and attention.</p> <p>2. Master and Servant — Duty of Master to Injured Servant. — In the absence of a statute or contract imposing this duty, it arises out of a humane principle that forbids the master to neglect his injured servant, and it is immaterial whether the injury was caused by the negligence of the master or the conduct of the injured servant in the course of his employment, and the duty lasts until the emergency created by the injury has passed.</p> <p>S. Master and Servant — Duty of Master to Injured Servant. — -The same measure of duty and care exists when the company undertakes to assume control of the case, although under the conditions present at the time it might not have been under any duty to furnish medical aid, as would exist in a state of case in which it would, in the first instance, have been under such duty.</p> <p>4. Master and Servant — Duty of Master to Injured Servant. — The duty to care for and give medical aid to an injured servant should not be confined to the railroads, but should be extended to all corporations engaged in hazardous businesses.</p> <p>5. Master and' Servant — Duty of Master to Injured Servant. — The relation of master and servant does not terminate the moment the servant is made incapable of performing his duties by an injury. The master in the face of such a misfortune, no matter whose fault caused it, must exercise the same reasonable care to save his servant from further harm or death that he would have been required to exercise if his servant hád not been injured.</p> <p>6. Master and Servant — Duty of Master to Injured Servant. — If members of the family of the injured man are present when the accident occurs, or come to him before his removal by the company, or thereafter, and they express a desire to take charge, the servants- of the company should deliver over to them the care of the case and do what they advise; and so the wishes of the injured man should be observed if practicable. If, how- - ever, the company assumes control of the case, this assumption of control carries with it the duty of exercising the required care in its performance.</p> <p>7. Master and Servant — Duty of Master to Injured Servant1. — -The conductor of a railroad train, by which a servant is injured, has the authority to take such action as is necessary to afford relief and medical treatment, and the company will be bound by what be does.</p> <p>8. Master and Servant' — Duty of Master to Injured Servant.— Where an employe of a railroad company was injured by a train, and bis wife, wbo came to tbe place of the injury soon afterwards, consented that the conductor might take the injured man to a hospital some miles distant, where he died, the company should not be held liable in damages for his death on the ground that it was caused by his removal from the place of the accident to the hospital at a time when a doctor who had been summoned was on his way to the place of the accident.</p> <p>9. Master and Servant —Duty of Master to Injured Servant — Pleadings and Evidence. — Where the cause of action is founded on the ground that the death of the injured employe was caused by his removal from the place of the accident to a hospital, it was incumbent on the plaintiff to show that he would probably have lived except for the removal.</p>

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

<p>Judgment — Essentials in General. — A planjtiff must make out his case by competent evidence before he can have a judgment.</p>

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

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

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

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

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

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

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

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

<p>1. Judgment — Jurisdiction.—If the court rendering a judgment has jurisdiction by law of the subject matter of the' action and by proper process of the person of the defendant; the judgment, however erroneous, will not be void:</p> <p>2. Judgment — Void Judgment — Injunction.—A void judgment may be attacked or its enforcement prevented by injunction, even though the injunction be granted by a court other than the one in which the judgment was rendered.' On the other hand, a judgment that is not void, but only erroneous, cannot be attacked collaterally or its enforcement prevented by injunction.</p> <p>3. Judgment — Judgment in Criminal Proceeding — Collateral Attack.— A judgment in a criminal proceeding is immune from collateral attack to the same extent as other judgments. When the trial court has jurisdiction by law of the offense charged in an indictment or warrant, and of the party who is so charged, its judgment disposing of the case will be valid and can not be questioned for error or mistake in a collateral proceeding. It is a well settled rule that an error of law does not furnish ground for collateral attack on- a judgment. If a court is confronted with a question it has a right to decide, its erroneous judgment will not be subject to collateral attack, whether the mistake concerned or grew out of misapplication of' the common, statutory or constitutional law.</p>

<p>1. Appeal and Error — Not Permissible Against Co-appellee. — An appeal is only allowable in bebalf of an appellee against tbe appellant; it is not permissible against a co-appellee.</p> <p>2. Appeal and Error — Parties.—Section 739 of tbe Civil Code of Practice provides tbe method of designating parties to an appeal; and, a party wbo is not named in tbe statement for an appeal is not before tbe court on tbe appeal.</p> <p>2. Appeal and Eror — Amount in Controversy. — In cases involving as mucb as.$200.00 and less than $500.00, an appeal granted by tbe circuit court is not authorized by section 950, subsection 3 of the Kentucky Statutes; but the party to whom tbe appeal was thus improperly granted may abandon bis appeal and- apply for an .appeal by motion as provided by tbe statute; and tbe filing of the record without a motion for an appeal, or the granting of an appeal by tbe clerk, will be treated as a motion for an appeal as required by tbe statute.</p> <p>4. Appeal and Error — Finding of Chancellor. — Where tbe testimony is contradictory and tbe mind is left in doubt, tbe findings of fact by the chancellor will not be disturbed.</p>

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

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

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

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

<p>Malicious Prosecution — Probable Cause for Arrest — Question for Court. — Where the uncontr^adicted evidence shows that a person who procured the arrest of another was without malice and has such information as would induce a person of ordinary prudence to in good faith believe that the person arrested had committed the offense for which he was arrested, this will present.a good defense to an action for malicious arrest, and the court may take the case from the jury, although the evidence shows that the person arrested was, in fact, innocent.</p>

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

<p>1. Infants — Sale of Infants’ Land — Practice.—In a proceeding to sell land for the purpose of division among the joint owners, some of whom are infants and made defendants, an appearance by the statutory guardian who filed an answer in their behalf is sufficient to bring the infants before the court; but, notwithstanding their being before the court, it is necessary to prove the required allegations in the petition to the effect that the land can not be divided without a sale, and this may not be waived by the guardian agreeing that such were the facts, or that the proof might be taken by'affidavit.</p> <p>2. Infants — Sale of Infants’ Land. — Where the record discloses the quantity of land land tbe parts into which it must be divided so that each owner may get his proportionate part, and it should appear from these facts that it would be quite impossible to make the division in kind, the court is authorized' to presume. in the absence of proof, that the property can not be divided in kind and render a judgment ordering if to be sold and a division of the proceeds made, and this rule applies, although the defendants be infants, or laboring under other disabilities.</p> <p>3. Infants — Sale of Infants’ Land — Inadequacy of Price. — Since there is no appeal from the judgment confirming the sale, the question of inadequacy of price can not be considered.</p>

<p>Master and Servant — Master’s Duty — Place of Work. — A master is under no duty to use ordinary care to furnish a reasonably safe place for work to a servant employed to make a dangerous place safe.</p>

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

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

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

<p>1. Husband and Wife — Contracts Relating to Divorce — Public Policy. —A contract between a husband and wife for the purpose of facilitating the granting of a divorce, to one or the other of them, is contrary to public policy, and is void.</p> <p>2. Contracts — Covenants—Consideration.—If a consideration for several covenants is a legal one, the covenants, which are legal will be enforced, although one or more of the covenants is illegal and vicious and will not be enforced.</p> <p>3. Contracts — Covenants—Consideration.—If the consideration for a covenant is illegal and vicious, or if there be more than one consideration, and one of which is illegal, the covenant1 is void.</p> <p>4. Contracts — Construction—Illegal Covenants. — Where a contract consists of several covenants or agreements, and one of the covenants is illegal and vicious, if the illegal covenant dan be eliminated without impairing the symmetry of the contract, as a whole, the obnoxious feature will be eliminated, and the remainder enforced, but if the good and bad can not be separated without destroying the general meaning and purpose of the contract, the whole contract will be set aside, as void.</p> <p>5. Husband and Wife — Contract1 in Pursuance of Separation. — A contract between husband and wife, in the nature of an adjustment of their property rights, or a provision for the maintenance of the wife, made in contemplation of a continuance of a separation previously made, or in contemplation of an immediate separation, on account of disagreement between them, will be enforced in equity, for the benefit of the wife, if fair and just to her, under the circumstances of the case.</p> <p>6. Husband and Wife — Contracts Between. — A contract between husband and wife, which would be valid, at law, if made with a trustee for the wife, will be sustained, in equity, though there is no trustee, if it does not affect the rights of other persons.</p> <p>7. Husband and Wife — Statute—Contracts.—The statute of March 15th, 1894, with reference to the property rights of married women, did riot enlarge her powers with reference to contracts between her and her husband, except as provided in the statute.</p> <p>8. Husband and Wife — Contracts Between. — A contract between husband and wife will be enforced in equity, in favor of the husband, ■ where the husband has executed the covenants upon his part, and the facts and circumstances show clearly, that it would be inequitable not to enforce it for his benefit.</p> <p>9. Infants — Maintenance of. — The duty of maintaining a minor child rests primarily upon the husband, and he can not relieve himself, forever, from such obligation, by contracting with some other person for its custody and maintenance.</p> <p>10. Infants — Custody—Contracts.—It is not illegal for parents to contract with each other, that one of them shall have the custody and maintain the child, but, the court1 will not recognize such contract, unless it is for the best interests of the child, and will recognize it no longer than it is to the interest of the child.</p> <p>11. Infants — Custody—Contracts.—If a contract between parents for the custody and maintenance of their minor child is such a one, that the chancellor will approve of and recognize, beeping in view the welfare of the child, so long as it is recognized by the court it should be enforced according to its terms, as between the contracting parties.</p> <p>12. Infants — Custody—Contracts.—When parents contract with each ■ other for the maintenance and custody of their minor child, they must be considered, as having done so, in contemplation of tbeir legal obligations to the child, and the rights of the child.</p>

<p>1. Master and Servant — Dangerous Instrumentality — Motorcycle.—A motorcycle is not a dangerous instrumentality within the rule requiring the master who has entrusted such an instrumentality to his servant, to respond in damages for its negligent use.</p> <p>2. Master and Servant — Injury to Third Person — Scope of Employment — Liability of Master. — A gas and electric light • company which furnished motorcycles to its trouble men for use in answering calls while on duty, is not’ liable for injuries to a third person caused by the negligence of one of such employes while using one of its motorcycles for the sole purpose of reaching his home after his hours of service had ended, even though the machine was used for that purpose with the knowledge and acquiescence of the company.</p>

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

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

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

<p>1. Wills — Construction.—Where a will describes parcels pt real estate and declares it is to be set apart for the use of the testator’s son, J. W. C., rented out by the executor and the proceeds as collected paid to the son, J. W. C.; and “should my son (J. W, C.) die leaving no children, then the aforesaid property set apart to his use shall revert to my estate and be divided among my other children, one-third to each or the legal heirs of each,’’ the son, J. W. C., having died leaving no children, a sister of the latter whose death preceded his and who alSo died childless but leaving a will which devised her entire estate to her husband, had at the time of her death no interes» in the property devised her brother, J. W. C., by the will Of their father that could pass to her husband under her will; hence, the action of the circuit court in .so deciding was not error.</p> <p>2. Wills — Defeasible Fee. — Whether J. W. C. took a defeasible fee or a life estate in the property devised him by the will of his father is not necessary to be decided, as in either event the sister, because of her death occurring before that of J. W. C., had no such vested interest in the property as enabled her to dispose of it by will.</p> <p>3. Wills — Construction—Defeasible Fee. — Where there is no intervening estate and no other period to which the words “die without leaving children” can be reasonably referred, they must be held, in the absence of something in the will clearly indicating a contrary intention, to create a defeasible fee which is defeated by the death of the devisee at any time without children then living. And if 3. W. C. took under his father’s will a defeasible fee, under the rule stated, as he died without leaving children, the reversion of the property devised him to the testator’s estate provided for by the will, must be held to limit the division to the other children of the testator that were living at the time of the death of J. W. C., or the children of such of them as might then be dead. Therefore, the husband of the sister of J. W. C. who died childless and whose death preceded his, had no such interest in the property after his death, as she might have disposed of by will.</p> <p>4. Wills — Construction—Contingent Remainder. — If, however, J. W. C. took under his father’s will only a life estate in the property devised him thereby, it would nevertheless follow that the will of ' the sister, whose death preceded his, passed no interest in the property left by him to her husband; for her interest in the property was only a contingent remainder. In other words, an interest dependent' upon two contingencies: (1) that J. W. C. leave no children surviving him; (2) that she survive J. W. C.</p>

<p>1. Railroads — Crossing Accident — Negligence—Contributory Negligence. — In an action for tbe death of a traveler killed at a railroad crossing, evidence held insufficient to show as a matter of law that the decedent was guilty of contributory negligence in that he knew of the approach of the train and attempted to beat it over the crossing.</p> <p>2. Railroads — Crossing Accident — Contributory Negligence. — In an action for the (Death of a traveler in a collision at a railroad crossing, the question of his due care depends on a number of circumstances, such as the condition of the weather, the speed of the train, the giving of proper . signals, etc., and except in fare Instances where there is no conflict in the evidence and reasonable minds can draw but one deduction therefrom, it is uniformly held that the question of contributory negligence is for the jury.</p> <p>3. Railroads — Crossing Accident — Duty of Traveler — Duty of Driver of Common Carrier. — As between a railroad and the driver, the driver of a vehicle used for the transportation of the public, is not ..under the duty to keep a lookout for a train approaching a crossing, but merely under the duty to use ordinary care to learn of its approach and to keep out of its way.</p> <p>4. Railroads — Crossing Accident — Contributory Negligence. — In an action for the death of a driver of a bus caused by a collision with a train at a railroad crossing, evidence examined and the driver’s contributory negligence held to be a question for the jury.</p> <p>5. Trial — Instructions.—It is not error to refuse other instructions where the given instructions fully cover the law of the case.</p> <p>6. New Trial — When Granted — Inadequacy of Damages. — Where in an action for death, only general damages are sought by plaintiff and allowed by the jury, a new trial will not' be granted on account of the smallness thereof, in the absence of some other prejudicial error in the record.</p>

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

<p>1. Frauds, Statute of — Sufficiency of Description. — Where a check for $250.00 given by the drawer in part, payment of the purchase price for a house and lot to an agent of the owner of the property authorized to sell it, the endorsement made on the check by such agent and a letter thereafter written by the latter to the owner, when read together, described the property sufficiently to-designate and identify it;' and the letter, in addition, informed the owner that the price agreed to be paid for the property by the purchaser was what he had authorized the, agent to accept for it, and that’ the remainder of the consideration, $5,000.00, would be paid by the purchaser upon the delivery to him of a deed by the owner and his wife conveying the property to the purchaser’s wife: Held, that the check, endorsement thereon and letter, together, constituted such a memorandum of the contract as met the requirements of the statute of frauds.</p> <p>2'. Frauds, Statute of — Suficiency of Description. — The body of the check and endorsement thereon furnished of themselves a sufficient description of the real estate sold, and the letter from the agent to his principal advised the latter of all the terms of the contract of sale; and as the endorsement on the chock and letter to the seller were signed by the agent authorized to make the sale, both were, in the meaning of the statute signed by the party to be charged. Therefore, the check and letter, together, contained all the essential elements of a valid contract; the names of the parties, the description of the property, the consideration, all. the ■terms and conditions of the sale and the signature-of the authorized agent of the party to be charged.</p> <p>8. Frauds — Statute of — Sale of Real Property — Parol Authority of Agent to Make’Deed. — Though the agent to make a deed must be authorized by deed, yet the agent to enter into an agreement to convey is sufficiently authorized by parol only. Therefore, parol authority to the agent who made the sale of the real estate in this case, to make it, was all that was required.</p>

<p>Wills — Appeal and Error — Judgment—Collateral Attack — Res Judicata. — As by tbe judgment of tbe circuit court rendered in a previous action, to which tbe parties to tbe present action and appeal were also parties, tbe provisions of tbe will of their ancestor respecting tbe real estate here involved were held to devise it to tbe testator’s widow for life with remainder in fee to his son, the appellee’s deceased husband, and that part of tbe former judgment was not asked to be reviewed on tbe appeal prosecuted in tbe previous action, nor in fact appealed from, and has never been reversed, tbe attempt of the parties to obtain a second construction of tbe same devises in tbe present action in tbe circuit court and by this appeal, is but a collateral attack upon tbe former judgment. In other words,, tbe question of title tbe parties . asked to have determined .in tbe present action and appeal is res judicata.</p>

<p>Appeal from Knott Circuit Courts</p>

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

<p>1. Corporations — Subscriptions Obtained s by Misrepresentation— Fraud — Rescission.—When a person has been induced by the fraud and misrepresentations of the agents or officers of a corporation to purchase its stock, he may maintain an action to rescind the contract and recover hack any money which may have been paid if the corporation is solvent. But if it is insolvent and a receiver has been appointed to wind up its affairs and instituted proceedings for that purpose, a stockholder who has been guilty of laches by not proceeding to obtain relief for the fraud practiced on him will not be allowed a rescission to the prejudice of the creditors of the corporation.</p> <p>2. Corporations — Subscriptions Obtained by Misrepresentation— While it may be a fraud upon a subscriber for stock for the seller to misrepresent the value thereof, or to make promises beneficial to the subscriber, which were neither kept nor intended to be kept, as an inducement to obtain his subscription, or to misrepresent any fact pertaining to the corporate affairs, for all of which the subscriber’ might obtain relief if he applies for it in time, such matters will not constitute a defense in a suit to recover' the subscriptions after the corporation .has become insolvent and the subscriber is guilty of laches by failing to exercise diligence and 'to proceed beforehand. ’</p> <p>3. Corporations — Subscriptions Obtained by Misrepresentation.— Although to promise a subscriber as an inducement for him to subscribe for stock that he would be given a lucrative position with the company may.have been a part of the consideration for his subscription, still he should have proceeded before guilty of laches to have his contract reformed so as to express the true one, and he can not defend on this ground a suit to recover his subscriptions after he is guilty of laches and the corporation has become insolvent.</p> <p>4. Corporations — Insolvency—Action to Recover Subscriptions — Mismanagement of corporate affairs by its officers and agents is no defense to a suit to recover subscriptions after the corporation has become insolvent; nor can the fact that the corporation has surrendered its assets to other subscribers avail the defendant; neither is it a defense to such a suit that the corporation agreed to cancel the subscription and to surrender to the subscriber his obligation, as this would be not only a fraud upon creditors but upon other interested parties as well.</p>

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

<p>Powers — 'Construction—Sale of Devise in Fee. — A power of sale is not repugnant to a devise of property in fee, and where a testatrix devised a farm in fee and in a subsequent clause of the ■will empowered the executor “to sell all my estate at will and execute deeds therefor,” the devisee took the farm subject to the power, and the executor may sell it in order to pay the proceeds to the devisee in lieu of the devise.</p>

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

<p>Master -and Servant — Railroads—Negligence—Employe Engaged in Interstate Commerce. — There can be no recovery by an employe of a railroad company engaged in interstate commerce unless there is some evidence tending to show that the injuries sustained were caused by the negligence of the company.</p>

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

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

<p>1. Taxation — Sale of Land .for Non-payment of Tax — Regularity of Sale — Burden of Proof. — Under section 4030 of the Kentucky Statutes, which makes a deed executed by the sheriff in pursuance of a sale for taxes priina facie evidence of the regularity of the sale and of all prior proceedings and title in the person to whom the deed has been executed, the burden of proof is upon the person attacking the deed to show its invalidity.</p> <p>2. Taxation — Purchase of Tax Title by Joint Tenant. — The purchase of a tax title by one joint tenant is not void; it is voidable only at the election of the other joint tenants provided the election be seasonably made.</p> <p>3. Taxation — Tax Titles. — Where one joint tenant acquires a tax title to the common property, the other joint tenants may, within a reasonable time, elect to take the benefit of the tax title thus acquired by contributing their shares in the way of reimbursing the title holder for his outlay; but a failure by the other joint tenants to do so within a reasonable time will be taken as an election on their part to allow the owner of the tax title to take the benefit of his expenditure and the title he has thus acquired for his individual use and benefit.</p> <p>4. Taxation — Tax Titles. — Where one joint tenant acquired a tax title to the common property and his co-tenants delayed in making their election to take the benefit of his purchase for a period of eleven years and until after there had been a great enhancement in the value of the common property, the joint tenants will be held to have waived and abandoned their right to so elect and cannot maintain ejectment to recover their interest in the common property. •</p>

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

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

<p>1. Master and Servant — Employer Not' Insurer of Safety of Employee —instruction.—It is elementary law that an employer is not an insurer of the safety of his employees; he is. liable not because of danger in the employment, if it be dangerous, but only by reason of his negligence; and an instruction authorizing a recovery against the employer which is not predicated upon his negligence, is erroneous.</p> <p>2. Master and Servant — Personal Injuries — Specification.—Under the rule that a specification of personal injuries in a damage suit -precludes proof of injuries not alleged, it is competent for the plaintiff to prove injury to his kidneys and the passage of blood in his urine, under an allegation that the negligence of the defendants caused the plaintiff to be “permanenily injured in his back, ribs (several of which were broken), spine, head, arms, and legs, and also to be internally injured, and caused'him to be permanently injured in his nervous system and each and every member of his body to some extent.”</p> <p>3. Damages — Special Damages — Pleading.—The allegation of a petition that the plaintiff “had lost-months'of time to the value of $-” amounts to no allegation of special damages, and affords no basis for a judgment therefor.</p>

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

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

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

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

<p>1. Appeal and Error — Defective Pleading. — Even though the petition be defective and this question be made on the second or third appeal, it is unavailing where the same question was presented upon a former appeal even though the opinion upon the first appeal make no reference to the question.</p> <p>2. Appeal and Error — Law of the Case. — The opinion upon the first appeal is the law of the case not only with respect (1) to errors relied upon for a reversal upon the first appeal and which are • mentioned in the first opinion; (2) to errors relied on but not mentioned in the opinion; but (3) also to errors appearing in the first record that might have been but were not then relied upon.</p> <p>3. Boundaries — Possession—Junior Patent. — Where a daughter claims a boundary of land by inheritance from her father and which boundary is laid off from his landed estate and conveyed to her " by the other heirs, the deed describing the tract and the outside boundary being carefully surveyed and marked, the daughter’s residence within this boundary claiming the whole to exterior marked lines, is possession of the whole tract and junior patents afterwards issued covering portions of the boundary thus deeded to the daughter are unavailing.</p> <p>4. Costs — Non-Resident Plaintiff. — While a non-resident plaintiff may be required to execute bond for cost the court properly refused to require such bond in a case where the plaintiff, after the institution of the action, went for a visit to her son in West Virginia at the time entertaining a fixed purpose to return to. her home in Kentucky.</p>

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

<p>1. Insurance — Organization of Company — Policy Contract. — A member of a co-operative or assessment life insurance company can not plead an irregularity in its organization, or that his policy is an ultra vires contract, to defeat,a cause of action against him by the company or its receiver.</p> <p>2. Insurance — Co-operative or Assessment Company. — The members of a co-operative or assessment life insurance company may, by its by-laws and policy contract, limit the extent of the co-operation, when such limitation is not contrary to the statutes under which they are organized.</p> <p>Insurance — Assessment to Pay Indebtedness. — A life or casualty 3. Insurance company organized to make the insurance transaction contemplated by section 664 and 665, Kentucky Statutes, under the provisions of subdivision 3, of article IV., of chapter 32, Kentucky Statutes, and which has nothing in its articles of incorporation, bylaws, nor policy contract, by which one policyholder is made liable for the losses of, the company under the policies of other members, and where it is expressly provided in the by-laws and policy contracts, that no liability is assumed by a member, other than a stated annual premium provided for in the policy, is without authority to levy an additional assessment upon its policyholders to pay indebtedness of the company</p>

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

<p>1. Damages — Pleading—Issues—Proof and Variance. — In a personal injury action where plaintiff alleged that she was cut and bruised on the side of her head and bruised and injured about and over her body generally and received a great shock to her nervous system from which injuries she suffers and would continue to suffer great mental and physical pain, evidence of a skin eruption attributable to the nervous shock was admissible as an external symptom tending to show the effect and extent of the shock, especially in view of the fact that depositions concerning the skin eruption were taken several months before the trial and defendant could not complain of such testimony on the ground of surprise.</p> <p>2. Damages — Personal Injuries — Evidence.—Where in a personal injury action plaintiff claimed that a skin eruption was due to a nervous shock which she received, evidence that there was no blood taint in the family was admissible for the purpose of showing that such condition was attributable to some other cause.</p> <p>3. Trial — Instructions—Request—Necessity.—Where in a personal injury action against two joint tort feasors, a.given instruction authorizing a joint finding against both defendants on a separate finding against each was correct as far as it went, one of the defendants could not in the absence of a request therefor, complain of the court’s failure to give a more specific instruction apportioning the damages on the basis of each defendant’s participation in the wrong.</p> <p>4. Damages — Assessment—Pleading and Proof. — The admission of evidence of the amount plaintiff was obliged to pay for physician’s services in treating him for alleged injuries is not error, though ■ the reasonableness of the charges was not pleaded.</p> <p>5. Damages — Special Damages — Pleading—Sufficiency.—While special damages such as expenses incurred for physicians, nurses, etc., must be plea'ded, the rule is satisfied where the pleading is sufficient to apprise the defendant of the character and extent of the damages claimed.</p> <p>6. Damages — Special Damages — Reasonableness of the Charges— Evidence — Sufficiency.—In a personal injury action where it was , sought to recover special damages such as expenses incurred for physicians, nurses, medical supplies, traveling, etc.-, evidence of the character and extent of the services rendered, of the amount of medical supplies required, and the circumstances under which the traveling expenses were incurred coupled with the further proof that they were all necessary and that the bills therefor had actually been paid, was sufficient to make out a prima facia case that the charges were reasonable.</p> <p>7. Damages — Special Damages — Expenses for Physicians, Nurses, etc. — Reasonableness of the Charges — Instructions.—Where in a , personal injury action plaintiff sought a recovery of special damages such as expenses incurred for physicians, nurses, traveling, etc., plaintiff’s proof was sufficient to make out a prima facie case that the charges were reasonable, and there was no evidence to the contrary, no issue as to the reasonableness of the charges was presented, and the court did not err in authorizing a recovery to the extent of the bills paid if the jury believed it was necessary for plaintiff to incur such expenses, without submitting to the jury the question whether such charges were reasonable.</p>

<p>1. Insane Persons — Validity of Deed. — The deed of an insane per- • son is not void, but voidable only.</p> <p>2. Deeds — Cancellation—Insanity.—Tbe deed of an insane grantor will not be set aside unless, in addition to his insanity, there exist other equitable grounds warranting the cancellation of the deed.</p> <p>3. Deeds — Cancellation—Evidence—Insanity of Grantor. — In an action to cancel deed of an alleged insane grantor, there being such conflict in the evideee as to his insanity as to leave the mind in doubt, the finding of the chancellor that he was insane must be accepted as conclusive.</p> <p>4. Deeds — Cancellation—Evidence—Inadequacy of Consideration.— In such action, the deed being attacked for the fraud and undue influence of the grantee over the incompetent, by which the land was obtained for an inadequate consideration, evidence held insufficient to show that the price paid was inadequate.</p> <p>5. Evidence — Competency—Value of Lands. — In such action, evidence of the price at which were sold, in the same vicinity and at or about the same time, lands of like condition as to fertility and improvements as the farm sold, is admissible to prove the value of the land in question.</p>

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

<p>Husband and Wife — Resulting Trust — Deeds—Evidence.—In a suit by the wife to have a deed conveying land to her husband, or to her and her husband jointly, reformed upon the ground that her money paid for the land and it should have been conveyed to her, it is necessary to show that the money of the wife paid for the land, and that the husband committed a breach of trust by deceiving the wife into believing that the title would be or had been conveyed to her, or by agreeing that it should, be so conveyed and breaking the agreement without her knowledge or consent.'</p>

<p>1. Municipal Corporations — Electricity—Electricity Companies Owned by a Municipal Corporation — Duty to Trespasser on Private Premises. — A municipal corporation owning and operating an electric light plant, is under no duty to a trespasser on private premises outside the city to maintain its wires in safe condition.</p> <p>2. Landlord and Tenant — Judicial Sales — Authority of Purchaser to Bent Premises Before Confirmation of- Sale. — Since the purchaser at a judicial sale has neither the legal title nor the right of possession prior to the confirmation of the sale, he is without authority to rent the premises between the date of the sale and the date of its confirmation or even to receive the rent therefor during that period.</p> <p>3. Landlord and Tenant — Lease—Evidence—Sufficiency.—In an action against' a municipal corporation to recover for personal injuries caused by plaintiff coming in contact with the city’s electric wires on private premises outside the city, where plaintiff based his right of recovery on the ground that he was on the premises by the Invitation or permission of the owner’s tenants, evidence examined and held insufficient to show that the alleged tenants had rented that portion of the premises on which the accident occurred.</p>

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

<p>1. Insurance — Elevator Liability Insurance — Construction of Policy.— Where a liability insurance contract, indemnifying the proprietor of a building against elevator accidents, stipulated for exemption from liability in case the elevator at the time of the accident was being operated by a boy under the age fixed by law-for elevator attendants, the insurance company was not liable to the insured for damages paid to a passenger who was injured on account of a structural defect in the elevator while it was being operated by a boy within the prohibited class.</p> <p>2. Insurance — Elevator Liability Insurance — "Construction of Policy.— Where a contract exempts the company from liability if the elevator at the time of the happening of the injury complained of is being operated by a boy within the prohibited age, it is immaterial what cause produced or brought about the accident or injury, or whether it was caused by some act of omission or commission on the part of the elevator 'attendant or by some defect in the elevator.</p>

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

<p>1. Master ánd Servant — Duty of Master — Mine Props. — There is no duty upon the master to place temporary timbers in a mine to protect a coal miner against dangers, arising in the progress of his work.</p> <p>2. Master and Servant — Rules—Assumed Risk. — A coal miner assumes the risk of injury, due to his violation of rules requiring him to inspect the roof after each blast.</p> <p>3. Master and Servant — Rules—Inspection.—Sec. 2788b, Kentucky Statutes, providing that a mining company shall furnish its employes copy of the rules upon their request, a coal miner who has not made such request is not absolved from the duty required by the rules, of inspecting the roof after each blast made by him.</p> <p>4. Master and Servant — Falling Slate — Trial—Evidence—Peremptory. — In hn action by a coal miner for injuries sustained by slate falling from roof of mine after he had made a blast, the evidence showing that the slate, in part, fell from the roof he had exposed in the progress of his work and that he had violated the rule requiring him to inspect the roof after e'ach blast, it was error to overrule defendant’s motion for a directed verdict.</p>

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

<p>1. Elections — Contest—Statute.—Under section 1471 of the Kentucky Statutes providing that a voter may vote for a candidate hy writing his name under the designation of the office and placing a cross mark to the right of his name, the failure of the voter to place a cross mark to the right of the candidate’s name which he had written on the ballot did not satisfy the statute, and. the ballot should not be counted for any one.</p> <p>U Elections — Primary Elections — Nomination—Certificate of. — That portion of section 1453 of the Kentucky Statutes which authorized a nomination by petition to be printed under the device and title Of the candidate’s political party as if nominated by a convention, was repealed by the primary election law (sec. 1550 Ky. Sts.), which provides that all candidates for elective offices shall be nominated; (1) by a primary election held under that act; or, (2) by certificates of nomination by the governing authority of the political parties.</p> <p>3. Elections — Name of Candidate on Ballot' Without Authority. — Where a political party failed to nominate a candidate for magistrate in a primary election and á candidate for that office procured the county court clerk to print his name upon the official ballot and under the column headed by the device' of one of the political parties, the name of the candidate was placed upon the ballot without authority of law, and he was not entitled to have counted for him either the ballots on which the voter had stamped the cross mark under the emblem at the head of the' column, or those ballots on which the voter had • stamped the cross mark opposite to the printed name of the candidate.</p>

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

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

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

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

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

<p>1. Taxation. — Exemptions—Property . Used for Religious Worship— Liability of Owner. Receiving Compensation for. Its Use — Evidence.' — In a proceeding by the Commonwealth to assess church property as the property of the purchaser under contract of sale on the ground that interest on the advanced payments on the purchase price and the deduction of the usual real estate commission from the purchase price were allowed the purchaser as compensation for its use and occupation by the church, evidence examined and held insufficient to sustain the allegations of the petition.</p> <p>2. Evidence — Writing—Parol—Admissibility Against Third Person.— In a proceeding by the Commonwealth to assess church property as the property of the purchaser under a written contract to which the Commonwealth was not a party, on the ground that interest on advanced payments on the purchase price, and a deduction of the usual real estate commission from the purchase price were allowed the purchaser as compensation for the use and occupation of the property by the church, parol evidence of all the facts and circumstances attending the transaction was admissible for and against the Commonwealth for the purpose of stowing the real contract tetween tte 'parties and whether the contract was a mere device to escape taxation.</p>

<p>1. Husband and Wife — Alimony—Maintenance.—In an action for, alimony brought by the wife against the husband" the former is entitled to such an allowance for her maintenance pendente lite as may comport with her station in' life and with the financial' ability of her husband to pay same. -</p> <p>2. Husband and "Wife — Alimony—Maintenance.—In fixing-the amount’ of such an allowance the elements to be considered by the'Cóúrt' are: (1) The size of the husband’s estate and its productiveness; his income and earning capacity. (2) The wife’s age, health-,' . dependence and the station in life in which her marriage to the. husband placed her. (3) , If there are children and they are wholly or in part in the custody of the wife, though the husband be charged- with their maintenance, the allowance should .include some amount, however slight,' which, though not actually required for their maintenance, the wife’s motherly love may prompt her to expend in furtherance of their happines's and which, if so expended, would be of no hurt to their proper training or well being. (4) The particular cause that induced the -wife to sue for the. alimony. . ,, ;</p> <p>'3. Husband and Wife — Alimony—Allowance—Appeal and Error.-^-. An appeal may be taken from a decree making an allowance to support the wife pending the action. As the order possesses all the essential elements of a final judgment and may b'e enforced by rule or execution, it is in every respect independent of the final determination of the court as to the rights of the parties in regard to the question of alimony.</p> <p>4. Husband and Wife — Alimony—Pendente Allowance. — Upon the facts of this case a pendente lite allowance of $250.00 per month to the wife, the use free, of rent of the family residence, and $100.00 for expense money in preparing the case for trial are held reasonable.</p>

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

<p>1. Forcible Entry and Detainer — Review.—Civil Code, section 463. regulating-proceedings after an inquisition under a writ of forcible entry and detainer or either, provides an exclusive mode or remedy for obtaining a review of such proceedings.</p> <p>2. ’Forcible Entry and Detainer — Traverse—Appeal and Error. — As tbis section declares that “if either party conceive himself aggrieved by the finding of the jury (or court) he may file a traverse thereof with the judge or justice within three days next after the finding aforesaid the required traverse is the only prescribed mode of appealing to the circuit court. As there was in this case no traverse filed by the appellants in the court of the justice of the peace holding the inquisition, the circuit court did not err in dismissing the appeal.</p>

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

<p>3. Railroads — Duty and Care to be Exercised by at Places Where Children are Habitually Permitted to Get on Moving Trains. — At places where children are habitually permitted by the conductor to jump on and rid© on his train, the railroad company through its servants is under a duty to anticipate the presence of children about the train and to exercise ordinary care to discover their presence and to prevent injury to them.</p> <p>2. Railroads — Duty to Trespassing Children. — A railroad company in the operation of its trains is under no duty to anticipate that children will attempt to get on its trains, unless by its course of conduct in permitting them to do so it puts on itself this duty.</p> <p>3. Railroads — Trespassing Children May be Arrested. — Section 805 of the Kentucky Statutes makes it an offense for any person except passengers and employes to get on a moving train.</p> <p>4. Railroads — Duty to Children Trespassing on Railroad Train.- — -The only duty the train crew owe to a child, who is trespassing on a train moving or about to move, is to exercise ordinary care to prevent injury to him after his peril is actually discovered.</p> <p>5. Railroads — Liability to Injured Child on Account of Acts and Conduct of Conductor. — Where the conductor of a train permitted children, in violation of the rules of the company, to board it, the company was liable to a child who was injured while attempting to get off.</p> <p>6. Railroads — Children—Evidence as to Habits in Boarding Train.— In a suit to recover damages for injuries to a boy received when he fell from a moving train, it was competent to show that boys at the place where he was injured habitually got on the train in the presence of and with the consent of the conductor.</p> <p>7. Railroads — Children—Evidence That Conductor Was Warned Not to Let Boy on Train. — In a suit to recover damages for injuries sustained by a boy when he fell from a moving train, it was competent to show that the father of the boy had-warned the conductor to keep his boy off the train.</p> <p>8 Railroads — Children—Contributory Negligence. — Contributory negligence will not as a matter of law bar a recovery by a bright, intelligent boy eight years old who lived near a railroad and had been warned not to go about trains, who was injured when he fell from'a train on which he was riding.</p> <p>9. Railroads — Contributory Negligence — Capacity to Understand. — In cases where contributory negligence is in issue, ability to understand implies age, capacity and experience sufficient to appreciate ■and comprehend the full meaning and effect of what one does, and it is this degree of capacity that the law presumes men and boys of mature years to possess. But when it comes to children of immature years, the question is for the jury.</p>

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

<p>1. Deeds — Delivery—Manner of. — The delivery of a deed, to be effectual, need not be by manual delivery but may be made by words without acts, acts without words, or by both words and acts.</p> <p>2. Deeds — Acceptance—Possession.—It is not necessary to the legal acceptance of a .deed that grantee have actual possession of it.</p> <p>3. Deeds — Delivery and Acceptance — Presumption.—Where grantor signed and acknowledged a deed to his wife, and had it recorded after her death, for property, the purchase price of which she paid or contributed to, and the parties were childless, there is a presumption that grantor intended to and did deliver the deed to his wife and that she accepted it at the date of the deed.</p> <p>4. Quieting Title — Evidence—Sufficiency.—In an action to quiet title to land, evidence held sufficient to warrant a decree quieting plaintiff’s title.</p>

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

<p>Railroads: — Use of Spur Track to Coal Mine — Compensation.— Where the only question between the owner of a spur track and the owner of a mine, who wanted to use the track, was what compensation should be paid for the privilege, the amount of compensation should be fixed by the lower court.</p>

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

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

<p>1. Negligence — Actionable Negligence Does Not Exist Unless There is a Breach of Duty.. — There can be no actionable negligence unless there is a breach of duty, and the master can not be held responsible for the courtesies of his servant when the master is under no duty to extend the courtesies and. the servant renders them merely as a favor or accommodation.</p> <p>2. Negligence — Invitee or Licensee. — One who is injured while on . the premises of another as an invitee or licensee can not' maintain an action against the owner of the premises unless he has been guilty of some intentional or positive act of negligence that caused the injury complained of.</p> <p>3. Negligence — Extending Courtesy to Licensee! — Where a master for accommodation furnished a funeral train, he was not liable in damages to one of the party who fell from a plank on which she was walking from the car to the ground when the conductor let go her arm.</p>

<p>1. Highways — Establishment of Use — Burden of Proof. — Where the public generally have used a passway for fifteen years under a claim of right, and the owner of the servient estate then undertakes to close the passway, the burden is on him to show that the use was merely permissive.</p> <p>2. Highways — Established Passway — How Right to May be Defeated. — Where a passway has been once established by adverse use, the right of the public to use the passway can be defeated only by a prohibition of the public’s use thereof for a period of fifteen years or by a voluntary abandonment of its use by the public.</p> <p>3. Highways — Establishment by Use — Permissive Use — Evidence—1 Sufficiency. — In an action by plaintiff to enjoin the obstruction of a passway leading through plaintiff’s farm and the farm of the defendants, neither the fact that plaintiff objected to the use of the passway by a person who had shot his dog or by persons who had injured the passway by heavy hauling, nor the fact that a person many years ago had purchased the right to go over the defendants’ land by another route, was sufficient to show that the use of the passway was merely permissive.</p> <p>4. Highways — Passways—Adverse Use — Change of Location. — Where plaintiff showed that he and the public generally had used the passway over defendants’ land for a period of 40 years, the mere fact that the location of the passway was changed from time to time by mutual assent of the parties, was not sufficient to show that the use of tho passway was merely permissive.</p>

<p>1. Wills — Construction—Parol Evidence. — The general rule is that a will is to be construed from the written language of the instrument, and parol or extrinsic evidence is not admissible to add to, vary, or contradict its terms.</p> <p>2. Wills — Construction—-Ambiguity—Evidence.—Where the language of a will is uncertain and doubtful, or contains a latent ambiguity, extrinsic evidence may be admitted for the purpose of explaining the will, the situation of the testator, . and the facts and ■circumstances surrounding him at the time of the execution of the will; but such evidence is not admissible where the language of the will is plain and unambiguous.</p> <p>3.' Wills — -Construction—Meaning of Words. — The words of a will will be given their usual and correct meaning unless a contrary intention appears.</p> <p>4. Wills — Construction.—Where a testator directed that the residuuin of his estate be “divided between my nieces Fanny Harrington Mary Crosby Ella Parrott to receive $500.00 and W. L. Graves my nephew to receive $500.00 in trust and in no event is it to be liable for any debts he may have now or may contract,” Ella Parrott and W. L. Graves each took $500.00 and the rest of the estate is to be divided equally between Fanny Harrington and Mary Crosby.</p>

<p>1, Marriage — How Proved — Cohabitation, and Reputation. — The fact of marriage may he proved circumstantially by cohabitation, by the fact that the persons had children whom they acknowledged and to whom they gave the family name, by the alleged husband’s support of the alleged wife and children, or by acts or conduct of the parties probatively relevant.</p> <p>2. Slaves — Inheritance by or From Slave Marriage. — The children of a customary slave marriage are the legal heirs of their parents.</p> <p>3. Bastards — Inheritance—Bastards may inherit from their mother.</p> <p>4. Taxation — Sale of Land for Taxes — Interest of Purchaser. — Where land was assessed for taxation in the name of a widow who was In possession as dowoross of her deceased husband, the purchaser at a sheriff’s sale for taxes took only the interest of the widow.</p> <p>5. Adverse Possession — Limitation of Actions. — One who purchases the interest of a widow who was holding land as doweress of her deceased husband, and enters upoti the land, does not hold adversely to the deceased husband’s heirs during the life of the widow, and limitation against the heirs does not begin to run until after the death of the widow.</p> <p>6. Ejectment — Lien for Improvements. — Where a purchaser buys land in good faith but under a defective title, and improves the land believing himself to be the owner thereof, he will, upon- being ejected, be entitled to a lien for his improvements thus placed upon the land to the extent that they have enhanced the salable value of the land.</p>

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

<p>1. Bills and Notes — Action by Assignee. — An assignee of a negotiable note for collection only may maintain an action in his own name for recovery on the paper. ,</p> <p>2. Bills and Notes — Detached Undertaking — Carelessness in Delivery. —Where a long printed contract is executed as one agreement, and there is in the body thereof an undertaking which, if detached, forms a regular negotiable note, and this instrument is detached without /the knowledge or consent of the maker, in an action t¡y an innocent holder in due course upon the instrument, it is a question of fact for the determination of the- jury whether the maker of the paper in preparing of executing it was guilty of negligence or carelessness in delivering the instrument in such form that a corrupt subsequent holder could convert it into negotiable paper by detachment.</p> <p>3 t Bills and Notes — -Alteration—Innocent Purchaser for Value. — If the holder of a written contract alter or change it in a material part by detachment, the whole undertaking is rendered unenforceable, unless the maker by his carelessness put it' within the easy reach of the subsequent holder to make such alteration or detachment, and the paper in the usual course has come into the hands of an innocent purchaser for* value before due.</p>

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

<p>1. Deeds — Acceptance—Delivery.—A deed must be accepted by the grantee, before the title passes, and while an acceptance is a part of the delivery of a deed, the acts, which constitute the offer to deliver and the acceptance, do not necessarily occur at the same time.</p> <p>2. Deeds — Delivery—Acceptance.—If a deed is delivered to a third person for a grantee, with the assent of the grantee, it is an acceptance by him of the deed.</p> <p>3. Deeds — Exercise of Ownership — Acceptance.—An exercise of ownership over the property Conveyed or claim of title under a deed is an acceptance of it.</p> <p>4. Adverse Possession — Possession by Joint Tenant. — The possession by a joint tenant is the possession of his co-tenants, and can not be adverse to them, unless there is an actual ouster, and a holding adversely by the one in possession, with notice of it to his co-tenants, either actual nptice or a holding accompanied with' such acts and in such manner as to necessarily apprise the co-tenants of the adverse character of the holding.</p> <p>5. Deeds — Fraudulent ¡Conveyances as to Creditors — Not Void as to Parties. — The statute, which declares void a deed executed in fraud of the grantor’s creditors, is not void, as to the parties to the deed, and a grantor can not successfully resist the recovery of lands by a grantee, upon the sole ground, that he executed the deed in fraud of his creditors. •</p>

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

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

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

<p>CHARLES H. MORRIS, Attorney General, and JOHN C. DUFFY, Special Assistant Attorney General, for appellant.</p>

<p>1. Insurance — Life Insurance — Rebating—Does Not Affect Validity of Policy or Premium Note. — A rebating arrangement in violation of section 656 of the Kentucky Statutes between a soliciting agent and an applicant for insurance, by which the applicant procures insurance for a less premium than the established rate, will not affect the validity of the policy or the note executed for part of the premium.</p> <p>2. Insurance — Life Insurance — Premiums—Payment of by Note. — ■ Although a contract of insurance may stipulate that premiums shall be paid in cash, the acceptance of a note by the agent for the amount of the premium will answer the requirements of the contract.</p> <p>3. Insurance — Life Insurance — Construction of Contract — Change in Physical Condition of Insured. — Where the application provided that “any policy issued hereon shall not take effect until the first premium has been paid during my insurability,” a change in the physical condition of the insured between the date of thp application and the delivery of the policy, did not affect the validity of the policy.</p> <p>4. Insurance — Life Insurance — Estoppel to Rely on Change in Physical Condition of Insured Between Date of Application and Delivery of Policy. — Where an agent, before delivering the policy, was informed by the insured of an accident that happened to him after he had applied for insurance, and with this information the agent delivered the policy, the company was estopped to rely on the changed physical condition of the insured as a defense to a suit on the policy.</p> <p>5. Insurance — Life Insurance — -Estoppel to Rely on Change in Physical Condition of Insured Between Date of Application and Delivery of Policy. — When an insurance company, before it delivers a policy, or during the life of an insured, comes into the - possession of information that would put it on notice of a change in the condition of the insured, which if it had known of, the contract would not have been accepted, or if accepted, would have been cancelled, it must, if the information is received before the policy is delivered, refuse to deliver it, or if delivered, must within a reasonable time after receiving the information cancel the contract, and failing to do either of these things, it will be estopped after the death of the insured to contest the policy.</p> <p>6. Evidence — Conversation with Decedent. — In a suit by the beneficiary of a policy against the company to recover the insurance, the agent of the insurance cbmpany who secured the policy may . testify for the benefit of the estate as to conversations with the insured at the time the application was taken.</p>

<p>1. Homicide — Trial—Peremptory Instructions. — In a prosecution for homicide, the evidence of guilt being circumstantial and conflicting, that question was properly submitted to the jury.</p> <p>2. Homicide — Evidence—Admissibility.—Evidence of domestic difficulties and of explanations given by the husband leading up to them was competent to show motive and the feeling of the accused toward his wife, for whose murder he was indicted.</p> <p>3. Homicide — Evidence.—In such prosecution, evidence that a female witness was seen entering the house of an immoral woman was irrelevant to impeach the character of the witness, or to contradict her, she having admitted delivering butter and milk at such place.</p> <p>4. Homicide — Evidence.—Certain conversations of witnesses were inadmissible to contradict other witnesses.</p> <p>5. Homicide. — Evidence that witness was in the habit of drinking intoxicating liquors to excess was inadmissible.</p> <p>6. Homicide — Trial—Instructions—Whole Law of Case. — In a prosecution for homicide, the court gave instructions upon murder, reasonable doubt, and defining technical terms usedj and these covered the whole law of the case, there being no other issues made by the evidence.</p> <p>7. New Trial — Misconduct of Jury. — In such prosecution, where two of the jurors were out of the presence of the sheriff and other jurors for a few minutes only and did not then engage in conversation with outsiders or discuss the ease among themselves,' such misconduct was not prejudicial.</p> <p>8. New Trial — Waiver.—Where misconduct of the jury was known to the defendant before verdict and not presented to the court until after verdict in a motion for a new trial, defendant waived his right to rely upon such misconduct for a new trial.</p> <p>9. -Attorney and Client — Knowledge.—Knowledge of an attorney is knowledge of the client whom he represents.</p> <p>10. New Trial — Attorney and Client — Presumption.—In a prosecution for homicide, the attorney for the accused was in possession of information concerning misconduct of the jury, and it was his duty to impart that information to his client and to the court before verdict, and it will be presumed that he performed his duty and imparted the knowledge, to his client.</p> <p>11. New Trial — Grounds—Practice.—In criminal and civil cases, the issues as to grounds for a new trial should be made by affidavits of the parties and by supporting affidavits, and then upon motion of either party the court should set a day for hearing, summon the witnesses and orally examine them in open court.</p> <p>12. New Trial — Newly Discovered Evidence. — In a prosecution for homicide, evidence held not to authorize a new trial upon the ground of newly discovered evidence.</p>

<p>1. Forcible Entry and Detainer — Landlord and Tenant — Writ of May Run in Name of Agent or Owner. — Where a contract of renting is made with an agent of the owner of the premises, the agent may in his own name maintain a writ of'forcible detainer against the tenant, or the writ may run in the name of the owner of the premises.</p> <p>2. Forcible Entry and Detainer — Landlord and Tenant — Ejection of Tenant Who Fails to Make Improvements or to Labor for His Landlord.- — Under section 2327, of the Kentucky Statutes, providing that a tenant who holds premises by virtue of a contract in which he agrees to labor for his landlord and fails to do so may be ejected, a tenant who refuses to make improvements that he agreed to make may be ousted by a ,writ of forcible detainer.</p> <p>3. Forcible Entry and Detainer — -Variance Between Writ and Judgment. — :Only a general description of premises is necessary, and where the property rented was known as the “Blue Grass Inn,” ■there was no material variance between a writ setting forth that the tenant detained a building known as the “Blue Grass Inn” and a judgment putting the landlord in possession of “premises known as the Blue Grass Inn, containing about thirteen acres.”</p>

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

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

<p>1. _ Boundaries — Prima Facie Evidence — Report of Processioners.- — In an action to quiet title the report of the processioners theretofore - made under Section 2368, Kentucky Statutes, after notice to the adjoining owners, was prima facie evidence of the correct loca- . tion of the lines of plaintiffs’ patent, and in the absence of evidence to the contrary, the chancellor did not err in holding that the location made by the processioners was correct and that plaintiffs’ patent lapped on the land claimed - by the defendants.</p> <p>2. Deeds — Property Conveyed — Description—Sufficiency.—The rule is that a deed is not void for uncertainty if from.the description contained in the deed, the property can be located.</p> <p>3. ■ Deeds — Property Conveyed — Description—Sufficiency.—A description in a deed conveying “my undivided interest and-share to a certain tract or parcel of land by which my said father, Stephen Owens aforesaid, died seized and possessed, lying on the waters , of the Little South Fork of Cumberland river in Wayne county, containing about 365 acres in all,” is sufficiently definite to pass title.</p> <p>4. Adverse Possession — Requisites—Actual Possession. — Where the superior title holder is in possession of a portion of his land, though not within the. interference, his possession is actual and co-extensive with the boundaries of his patent, and the subsequent entry within the interference by a junior patent holder, will not divest the superior title holder of his prior and existing possession beyond the actual close of the junior patent holder.</p> <p>5. Adverse Possession — Description of Land Claimed — Statutory Provisions. — Under Civil Code of Practice, section 125, requiring the answer in an action to recover land to state whether defendant claims any part of the land and if so to describe that part claimed so as to identify it, an answer accurately describing a larger' tract embracing defendants’ enclosure will support a judgment awarding defendants the enclosed lands.</p>

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

<p>1. Evidence — Competency—-Impeachment of Writing. — It is competent to impeach the consideration of a writing by parol proof, but in order for the evidence to be sufficient for that purpose it should be clear and convincing.</p> <p>2. Evidence — Impeachment of Writing. — A writing presented for the ■ first time . upon the trial and introduced as evidence .without having been relied upon in the pleading may be impeached by the one against whom it is introduced for fraud or other invalidating facts without a pleading to that effect.</p> <p>3. Trial — Instructions—Defining Words. — Under the facts of this record it was not error for the court to decline to define the word “consideration.”</p> <p>4. Trial — Evidence—Scintilla Rule. — If the evidence upon an issue in contest is sufficient to raise a scintilla of proof, the court should not take the case from the jury by a directed verdict, although if one should be returned in favor of the litigant having only such scintilla it might be so flagrantly against the evidence as to authorize the court to set it aside upon that ground.</p> <p>6. Appeal and Error — Insufficiency of Evidence. — Evidence examined in this case and found to be insufficient to sustain a verdict for defendants in a suit upon a note where the defense was no consideration and that it was executed solely for the accommodation of the plaintiff.</p>

<p>Appeal and Error — Second Appeal — Former Opinion Law of Case.— Where, upon the second trial of a personal injury suit, no new pleadings were filed and no new evidence offered, except that which was merely cumulative, not of controlling importance and immaterial, the ruling on the' second appeal must he the same as that upon the first.</p>

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

<p>1. Corporations — Power of Officer — Personal Interest. — In the compromise and settlement of claims asserted against both a corporation and its president, as between the corporation and himself, the president can not represent both so as to be personally benefited at the expense of the corporation.</p> <p>2. Corporations — Officers—Account and Settlement. — In an action to settle accounts between a corporation and its president, where the president, representing the corporation and himself, compromised and paid off claims against both, each should contribute to amount paid in discharge of the compromise agreement in proportion to benefits received.</p> <p>3. Corporations — Preferred Stock — Rights of Holder. — Preferred' stock of a corporation, issued pursuant to its charter and by its terms redeemable six years after company’s organization, is, after maturity, an indebtedness which may be enforced against the corporation, it being solvent. .</p>

<p>1. Attorney and Client — Services—Fees.—An attorney may recover reasonable fees for reasonable and necessary services rendered an incompetent person; but it will not be presumed that the services were necessary because they were rendered at the instance of the incompetent person.</p> <p>2. Attorney and Client — Services—Fees.—The rule permitting an attorney to recover compensation for his services rendered an incompetent person, rests upon the fact that the services have been faithfully and intelligently performed and not upon the fact that they have been successful or beneficial to the client.</p> <p>3. Attorney and Client — Defense of Insane Person — Fees.—Where an unnecessary number of attorneys are employed by a person of unsound mind to defend him in proceedings to have him adjudged of unsound mind the court should make an allowance sufficient to cover the reasonable fees of ail the attorneys so defending, and apportion it among them according to the services rendered by them respectively.</p> <p>4. Attorney and Client — Defense of Insane Person — Fees—Allowance. — Where two attorneys sued to recover for services rendered to a person of unsound mind in a proceeding to have him adjudged restored to his senses, and made the other attorneys who had rendered similar services in the same proceeding parties defendant to their action, they properly brought before the court the whole question relating to attorneys' services rendered ta the incompetent and the court properly allowed them to recover for their necessary services so rendered.</p> <p>5. Insane Persons — Settlement of Estate — Management.—Where the estate of an incompetent person is in the custody of the chancellor for settlement or administration, no one can interfere with its management by suit or otherwise without leave of the court; and while it is the duty of a person seeking to bind an incompetent’s estate while in the custody of the court to first obtain the approval of the chancellor, his act in suing the incompetent may be subsequently approved by the chancellor’ if it be such a case that he would have given his approval had it been asked in advance.</p> <p>6. Attorney and Client — Insane Person — Services Rendered — Fees.— Where attorneys were employed by a person of unsound mind under an implied contract that they would be paid a reasonable compensation for their services, and represented the incompetent in several trials of an action, they may retire from further service, and their retirement will not defeat their right to recover for the services theretofore rendered.</p> <p>7. Evidence — Declarations Against Interest. — Written declarations against interest may be in any form capable of conveying thought; they may consist of solemn and formal documents such as deeds, mercantile papers, accounts, receipts, or casual papers such as loose memoranda.</p> <p>8. Attorney and Client — Services Rendered Insane Person — Payment. —Where an attorney rendered services to a person of unsound mind and received from him a check written by. the attorney with the memorandum, “in full of account to date,” on the face of the check, the attorney cannot recover for services theretofore rendered. '</p> <p>9. Attorney and Client — Services—Fees.—In estimating attorneys’ fees, in the absence of an express contract, it is competent to consider the amount and character of the services rendered, the labor, time, and trouble involved, the nature and importance of the litigation or business in which the services were rendered, the amount of money or the value of the property affected by the controversy or involved in the employment, the skill and experience called for in the performance of the services, and the professional character and standing of the attorney.</p>

<p>1. Mortages — Unrecorded Mortgage — Liens.—An unrecorded mortgage executed by the mortgagor to the mortgagee to indemnify the latter against loss as surety of the former, may give a lien superior to a lien or equity subsequently acquired by the levy of an attachment upon the mortgaged property in favor of a creditor of the mortgagor.</p> <p>2. Mortgages — Unrecorded Mortgage — Liens.—A mortgage, though unrecorded/ is valid against purchasers or creditors with notice. Therefore, the holder of an unrecorded mortgage upon personal property upon which another creditor of the mortgagor, has subsequent to the execution of the mortgage, levied an execution or attachment may, at’ any time before the sale under the execution or attachment, give notice to the execution or attachment creditor of his mortgage and arrest the sale and enforce his mortgage lien in preference to the lien acquired by the levy of the execution or attachment.</p>

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

<p>1. Wills — Construction—Estate Devised. — By the fourth clause of the testator’s will,.he made the following devise: “I give to my son, J. D. Staton, the Sixty acres above mentioned on the lower end for and during the term of his natural life Should he die before his son H. A. Staton becomes Twenty-One, I desire that his son shall have the rents and profits until he is Twenty-One, should he die before that time I want the land to go back to my estate and be equally divided among my legal heirs.”' Held, that the grandson took only the rents and profits until he became 21 or died before that time, and that thereupon his estate terminated and the land passed to the testator’s heirs.</p> <p>2. Wills — Construction—Estate Devised. — By the seventh clause of the testator’s will, he made the following devise: ‘T give to my Daughter, Dora Ann Christine Staton, the land North of the Military between said line and the line & dividing Wm. A. Griders land and it to have and enjoy it during the time of her natural life, provided she leaves no heirs, in the event she leaves heirs then them to receive the profits until they reach their majority, should they die before they are 21 years old, the property to be equally divided among my other children, I also give her ($1000.00) to be paid to her out of other assets that I have.” Held, that the only son of the testator’s daughter took only the profits until he reached his majority or died before that time, and that thereupon his estate terminated and the land passed to the testator’s heirs.</p>

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

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

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

<p>. Limitation of Actions — Husband and Wife — Proceeding to Subject Land of Wife to Debt. — Where proceedings were taken under an execution by a creditor to subject land conveyed to a debtor’s wife more than five years before the execution was levied, the wife’s plea of five years’ limitation is not avoided by the fact that the creditor attacked the conveyance to the wife as fraudulent in another suit filed within three years after the deed was made.</p>

<p>1." Appeal and Error — Statement.—An appeal is prosecuted by making the statement required by section 739 of the Code of Practice and paying, the tax thereon.</p> <p>2. Appeal and Error — Parties—Appellee.—Where several parties who have recovered separate judgments are jointly named as appellees in one statement of appeal and one tax is paid, there is only one appeal; and, the party first named as an appellee is the only appellee.</p>

<p>1. Highways — Abutting Owners — Fee to Soil Under Road. — The presumption will be indulged, in the absence of anything to the contrary, that' the abutting landowner along a public highway owns the fee in the soil under the road.</p> <p>2. Highways — Grant of Right to Build Tramway — Basement.—The fiscal court and county authorities have no power to grant an individual or company the right to build and maintain a tramway along the right-of-way of the public road where the county has only an easement and does not own the fee, except by the consent of the fee holder. ■</p>

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