Volume 180 — Kentucky Reports

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

<p>1. Taxation — Inheritance Taxes — Five-year Statute of Limitation.— An action to collect an inheritance tax is an action upon a liability created by statute within the meaning of section 2515 of the Kentucky Statutes and is barred within five years next after the cause of action accrued.</p> <p>2. Limitation of Actions — Statute of — Inheritance Taxes. — Under section 2523 of the Kentucky Statutes providing that limitation runs against the Commonwealth, an action to recover an inheritance tax is -barred in five years from the date the cause of action accrued.</p> <p>3. Taxation — Inheritance Taxes — When Collectible by Suit'. — Under section 4281h of the statutes inheritance taxes retained by or paid to an executor, administrator or trustee must be paid over by him within thirty days thereafter, and suit may be brought to recover such taxes at the expiration of thirty days.</p> <p>4. Taxation — Inheritance Taxes — When Collectible by Suit. — Subject to the exception in section 4281h, inheritance taxes are not collectible by suit until eighteen months after the death of the decedent.</p> <p>5. Taxation — Inheritance Taxes — Liability of Executor, Administrator or Trustee. — -An executor, administrator or trustee is liable on his official bond for an inheritance tax in every state of case without reference to whether or not the property subject to the tax comes into his possession or control. His liability attaches if there passed to any person real or personal property of any kind or character subject to the tax through or out of the estate of which he is executor, administrator or trustee.</p> <p>6. Taxation — Inheritance Taxes — Executor, Administrator or Trustee —Remedies of to Collect Tax. — An administrator, executor or trustee having in charge any legacy or property for distribution may deduct the inheritance tax therefrom before paying over the money or delivering the property. He may also sell so much of the property of the decedent as will enable him to pay the taxes.</p> <p>7. Taxation — Inheritance Taxes — Liability of Person Receiving Property. — Whether the person who receives the property subject to the tax can be proceeded against after the Commonwealth has exhausted its remedies against' the executor, administrator or trustee, or whether the Commonwealth has a lien on the property subject to the tax to secure its payment, are questions not decided.</p> <p>8. Taxation — Inheritance Taxes — Liability of Person Receiving Property. — Where there is no executor, administrator or trustee, the Commonwealth may proceed directly against the person receiving the property subject to an inheritance tax and collect it from him.</p> <p>9. Taxation — Inheritance Taxes — Suit Against Person Receiving Property. — If there is an executor, administrator or trustee, a suit in the first instance against the person receiving the property subject to the inheritance tax to recover it directly from him should he dismissed.</p>

<p>1. Easements — Permissive Use — Burden of Proof. — Where the use of a passway has extended over a long period of years, very slight' evidence will he sufficient to show that it was enjoyed under a claim of right; and when the owner of the servient estate undertakes tojclose the passway, the burden is on him to show that the use was merely permissive and to explain away the presumption that its uninterrupted enjoyment for more than fifteen years was exercised under a claim of right.</p> <p>Basements — Adverse Character of Use — Permissive Use. — The pernissive use of a passway for any number of years does not deprive the owner of the servient estate of the right to close it at any time; and when the use is originally acquired by permission, the character of the passway is established and such use continues to be permissive until something is done to bring notice to the owner of the land that the character of the use has been changed.</p> <p>3. Basements — Adverse Use — Presumption—-Permissive Use — Evidence. — In order..to overcome the presumption arising from the long and uninterrupted use of the passway that it was enjoyed under a claim of right, there must be satisfactory evidence that its use was originally acquired by permission.</p> <p>4. Easements — Adverse Character of Use — Permissive Use — Evidence —Sufficiency.—In an action to enjoin the obstruction of a pass-way, evidence examined and held insufficient to show that the original use of the passway was acquired by permission.</p>

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

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

<p>Application for Writ of Prohibition.</p>

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

<p>Appeal and Error — Instructions.—A reversal will follow the giving of erroneous instructions when they are prejudicial to the substantial rights of the complaining party.</p>

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

<p>1. Contracts — Independent Contractor — Messenger Boy. — Where a messenger boy, who owned his own bicycle and was paid a commission for each message, delivered and received, was employed by a telegraph company to deliver and receive messages for it, being told by his employer when and where to go and when to return, but being permitted to exercise his own discretion as to the speed at which he traveled and the route he took, he was the servant of the company and not an independent contractor, and it was liable for his negligence while delivering a message.</p> <p>2. Appeal and Error — Demurrer—Evidence Supporting Ruling of Court in Sustaining Demurrer. — Generally the sufficiency of a pleading must be determined by an inspection of it, but where a pleading sets out facts stronger than the evidence justifies, it will not be prejudicial error to sustain a demurrer to the pleading when evidence admitted without objection shows that if the demurrer had been overruled the court would have been justified at the conclusion of the evidence in declining to submit to the jury the ‘ issue made by the pleading.</p>

<p>1. Wills — Signature of Testator. — A testator may sign his name to his will by writing it out in full, or by abbreviating it, or by writing his initials or his Christian name, or by using an assumed name when done without intent to deceive.</p> <p>2. Wills — Signature of Testator — Requisites and Validity. — Where a testatrix named Nancy Wilson Hendrix caused her will to be</p> <p>her</p> <p>signed “Nancy Wilson X Whaley” it satisfied that requirement</p> <p>mark</p> <p>of section 4828 of the Kentucky Statutes providing that no will shall be valid unless the name of the testator is subscribed thereto.</p> <p>3. Wills — Witnesses—Subscription by. — Where the witnesses to a will subscribed their names at the request of the testatrix and left the room as the testatrix approached the table on which her will lay, with pen in hand but before she did anything more, it cannot be said that she signed the will either in the actual or constructive presence of the witnesses.</p> <p>4. Wills — Acknowledgment—Witnesses.—In general it may be said it is not necessary that the acknowledgment of a will should be in any particular formal words, or in words at all; it may be by acts or conduct, provided the testator indicates to the witnesses, with unmistakable certainty, that the signature is his. A request by the testator to the witnesses to witness the document or signature may be a sufficient acknowledgment, especially when accompanied by a declaration that it is the declarant’s will.</p> <p>5. Wills — Witnesses—Acknowledgment.—Where a testatrix requested two friends to call at' her home and witness her will, and they in obedience to the request called upon the testatrix for that purpose and were asked by the draftsman of the will, in the presence of the testatrix, if they had come to witness her will and they answered that they had come for that purpose, and they then signed the will as witnesses in the presence of the testatrix, who said nothing, her conduct under all the circumstances constituted an acknowledgment of the will.</p> <p>6. Wills — Subscription of Testator’s Name — Parol Evidence. — The fact that a testator’s name was subscribed to his will by some other person in the testator’s presence and by his direction may, like any other fact, be shown by circumstances, parol and indirect evidence, provided it be sufficient to convince one that the signature was so signed.</p> <p>7. Wills — Acknowledgment—Witnesses.—Where the name of a testatrix was subscribed to her will by the draftsman thereof who was dead when the will was offered for probate, and the will was acknowledged by the testatrix in the presence of two witnesses, these facts satisfied that provision of section 4828 of the Kentucky Statutes which requires that' when the name of the testator is not subscribed to the will by himself, it must be so subscribed by some other person in his presence and by his direction.</p>

<p>1 Partnership — Accounting for Profits. — If a partner uses partnership funds in an enterprise of his own, or secures a contract for himself, which it was his duty to secure for the partnership, or purchases property, which he should have purchased for the partnership, or without the consent of his co-partners, engages in a business similar to the partnership business, so as to be in competition with it, he may be required to account for the profits.</p> <p>2. Partnership — Accounting for Profits. — Although the partnership contract requires a partner to give all of his time and exertions to the partnership business, if he engages with his own means in an enterprise, which is not within the scope of the partnership, he can not be made to account to his partners for the profits, but they may have relief against him by some other proper remedy.</p> <p>8. Partnership — Settlement.—A settlement between partners, of the partnership business, is binding and conclusive upon the partners, except where it may be avoided upon the ground of fraud or mis take.</p> <p>4. Partnership — Settlement—Fraud or Mistake. — Where one of the partners knows all about the partnership business, and the other has little or no knowledge of it, less evidence is required to open the settlement for relief for fraud or mistake, in behalf of the one with little knowledge of the business, than would be necessary if both parties were acquainted with all the facts, and repose n^ special confidence in each other.</p> <p>6. Partnership — Settlement—Belief.—Where the facts of a partnership transaction lie exclusively or nearly so within the knowledge of one partner, and he secures án advantage in the settlement by a concealment', the other may have relief against it, although n.o misrepresentations were made.</p> <p>6. Partnership — Settlement—Mistake—Relief.—A partner induced to accept a settlement by a misrepresentation of the other, although innocently made, may have relief because of the mistake, where he sustains a substantial injustice by reason of the mistake induced by the mistaken misrepresentation.</p>

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

<p>1. Appeal and Error — Amount in Controversy — Piling of Transcript.— Where the judgment recovered in the circuit court is in amount as much as $500.00 or more, the unsuccessful party is entitled to an appeal as a matter of right, and, if prayed, must he granted by the circuit court. But if the appellant fail to file the transcript in the office of the clerk of the Court of Appeals at least twenty days before the first day of the second term of that' court next after the granting of the appeal, unless the Court of Appeals extends the time for the filing thereof, as for cause shown it may do, the appeal, upon motion of the appellee, will be dismissed, and the latter awarded ten per cent damages upon the amount of the judgment superseded.</p> <p>2. Appeal and Error — Supersedeas Bond — Dismissal—Damages.—If, in taking an appeal from a judgment of the circuit’ court to the Court of Appeals, the appellant would stay proceedings on the judgment pending the appeal, he must execute a supersedeas bond with approved security to be given before and accepted by the clerk of the circuit court. If, however, the appellant should wish to supersede only a part of the judgment, he may do so, and the bond varied so as to secure the part superseded, in which event the supersedeas issued would only stay proceedings on that part of the judgment superseded. In such state of case upon the dismissal of the appeal for failure to file the transcript in the office of the clerk of the Court of Appeals, as stated in the first paragraph, the appellee will be awarded damages.on only that part of the judgment superseded.</p>

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

<p>1. Homicide — Dying Declarations. — Although a statement made by a dying man is improperly admitted as his dying declaration upon the trial of the accused, yet this is not reversible error if other witnesses competent to testify upon the subject detail the same facts to the jury.</p> <p>2. Homicide — Dying Declarations. — Where one mortally wounded by a gunshot, and who in great agony inquires if the doctor has come and says: “If he don’t come pretty quick I can not stand it in this shape;” and further uses expressions that indicate what he will do to his assailant in case of his recovery, his statement as to how the shooting took place is not admissible evidence upon the trial of the accused as his dying declaration although he die shortly thereafter.</p> <p>3. Homicide — Evidence—Instructions.—An instruction which directs the jury to find the accused guilty of willful murder although the jury believe from the evidence beyond a reasonable doubt that the shot, which took the life of the deceased, was fired in sudden heat of passion or sudden affray by one jointly indicted with the accused, if the jury further believe from the evidence beyond a reasonable doubt that the accused willfully, feloniously and with malice aforethought aided, abetted and incited the killing, properly presents the law of the case.</p> <p>4. Homicide — Evidence—Degree of Offense. — One may be found guilty of willful murder even though he be guilty only of aiding, abetting and inciting the killing, if his acts were done with malice aforethought and this, too, though the shot was feloniously fired by his co-defendant in sudden heat of passion or sudden affray and without previous malice.</p> <p>5. Homicide — Evidence—Degree of Offense. — One may be found guilty of willful murder even though he be only an aider and abetter, if his acts proceed from malice aforethought, and his principal who fires the shot in sudden heat of passion or sudden affray, be guilty only of manslaughter.</p>

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

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

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

<p>Appeal from Franklin Circuit Cour;fc.</p>

<p>1. Wills — Intention of Testator. — The intention of the testator, as gathered from the entire will, as to when an estate is to vest, is the rule by which to determine when it does vest.</p> <p>2. Wills — Contingent Remainder. — Where the remainder is not to vest until the termination of the particular estate, and its vesting at all, depends upon the contingency of the remainderman being alive at that time, it is a contingent remainder.</p> <p>3. Wills — Vested Remainder. — A vested remainder is an estate, which may he inherited, but a contingent remainder, which never vests, because the contingney never occurs upon which it is to vest, it perishes with the owner.</p> <p>4. Infants — Sale of Infants’ Real Estate — Debt Contracted by Parents or Guardian. — Neither parents nor guardian can secure a judgment for a sale of infant’s real estate to pay a debt contracted by them for the education or maintenance of the infant.</p> <p>5. Infants — Sale of Infants’ Real Estate — Education or Maintenance. ■ — A court of equity may, however, when applied to, order a sale of infant’s real estate and direct the proceeds to he expended for his education or maintenance, if for the best interests of the infant.</p>

<p>1. Municipal Corporations — Construction of Sewers — Limitation Upon Indebtedness. — Under subsection 9 of section 3490 of the Kentucky Statutes providing that the board of council in cities of the fourth class shall have power to construct and maintain sewers, bridges, and culverts within the city without limitation, except as to the amount of the indebtedness that may be incurred, a determination of the council of a city that the construction of sewers is necessary, is conclusive on the inhabitants.</p> <p>2. Municipal Corporations — Indebtedness—Constitutional Law. — In determining the amount of a city’s annual indebtedness when compared with its annual income, under section 157 of the constitution, an indebtedness created pursuant to a vote of the people is not to be considered; but in such a case it is proper to take into account only the sums necessary to pay the annual running expenses, the annual 'interest, and a sum necessary to create a sinking fund sufficient' to discharge the indebtedness upon its maturity.</p> <p>3. Municipal Corporations — Bonds—Sinking Fund — Levy of Tax.— Where a municipal bond issue has been authorized by a vote of the people of a city of the fourth class, the municipal taxing authorities have the right, under section 159 of the constitution, to levy an additional tax, over and above that required for current expenses, if it be necessary to provide for annual interest on the bonds and for a sinking fund for the payment of the principal, even though it should be necessary to exceed the rate of seventy-five cents on the one hundred dollars authorized by section 157 of the constitution.</p>

<p>1. Pleading — Sufficiency.—A petition that set forth a contract between the plaintiff and the defendant, the defendant’s breach thereof, and the plaintiff’s consequent damage, stated a cause of action.</p> <p>2. Contracts — Action Upon Contract — Entries—Evidence—Appeal and Error. — Where a trial court refused to permit a defendant to read from his account book which he kept in connection with his business to show the recorded terms of a contract between him and the plaintiff, he cannot complain upon appeal when he failed to make an avowal showing what' he would have proved by his books if he had been allowed to read the entries in evidence.</p> <p>3. Contracts — Action for Breach of — Evidence.—Upon the trial of an issue as to the breach' of a contract for the sale of goods, plaintiff may show the breach by the defendant’s discharged employee, although such proof may show bad faith upon the part of the defendant and thereby inflamo the minds of the jury.</p> <p>4. Contracts — Action for Broach of — Measure of Damages. — Where a breach of contract consists of the failure to deliver goods of the quality contracted for, the buyer is entitled to compensation for the injuries suffered because of the defect, and generally the measure of damages is the difference between the market value of the goods contracted for and the market value of the goods delivered.</p>

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

<p>1. Fraudulent Conveyances — Suit by Creditor — Burdén of Proof— Tbe burden of showing that a conveyance was made in fraud of creditors is on the creditor attacking the conveyance.</p> <p>2. Fraudulent Conveyances — Evidence—Sufficiency.—In an action by an execution creditor against his debtor’s son to subject the latter’s land to the execution debt on the ground that the land was paid for by the debtor and conveyed to his son to defraud his creditors, evidence examined and held insufficient to support a finding in favor of plaintiff.</p>

<p>1. Courts — Creation and Constitution and Court Officers. — To constitute a legally equipped court for the hearing and determining of causes there must be a presiding officer or officers, usually denominated judges, a time and place as designated by law; and if a court is attempted to be held by one not such presiding officer, or at a time or a place not designated by law, it is without authority to adjudicate cases, and this effect is not cured by the cleric of the court under direction of the presiding officer who is absent adjourning to another day, since the opening of court under such circumstances would be illegal, which the cleric could not vitalize by his attempted adjournment.</p> <p>2. Courts — Creation and Constitution and Court Officers. — At common law no officer was authorized to open court in the absence of the duly elected and qualified judge. It is competent for the legislature to regulate such matters, but in this state the only statutory provision that has been made is that at a special term of court, if the presiding officer at the time appointed for it to convene is absent, that the cleric shall certify that fact to the Governor, who shall in the manner provided hy law appoint a special judge to hold that term (sub-section 2 of section 971, Kentucky Statutes), and if that' method is not pursued the specially called term lapses and ends and proceedings attempted to he had by the regular judge on a future date to which the clerk attempted to adjourn the term are void unless perhaps the matter is waived.</p> <p>3. Judges — Trial—Void Judgment. — The regular judge at a regular term by orders duly entered called a special term for a fixed day. On that day he was sick and absent from the county, but directed the clerk to open the term, submit the cause and adjourn the court to a future named day, which the clerk did. On that day the ease was tried by the regular judge, over the objections and exceptions of one of the litigants, based on the ground that the term was not regularly called and had no legal existence in fact. Held that the objections should have been sustained and the judgment rendered in the case is void.</p> <p>4. Judgment — Void Judgment — Appeal and Error. — Where the judgment is void no appeal can be prosecuted from it until a motion has been made and overruled in the trial court to set it aside.</p>

<p>Costs — Interest.—Under the facts and circumstances of this case the costs in lower court should he paid hy appellee and the cost's in this court equally divided, and no interest allowed the appellant.</p>

<p>Eminent Domain — Compensation—Action for Value of Land Taken but not Condemned — Findings—Evidence—Sufficiency.—In an action by a property owner against a railroad company to recover compensation for land taken but not condemned, evidence examined and held to sustain a finding that no more land was taken than was condemned.</p>

<p>Ejectment — Judgment — Collateral Attack — Evidence.'—'The averment of an amended petition that an infant defendant to that action was over fourteen years of age, at the time of filing of the original petition and service of summons upon her is conclusive as'to the age of the infant at that time and will defeat her right to recover in ejectment lands sold in that action, as no infirmity in the judgment ordering the sale is established by the record in such action.</p>

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

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

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

<p>1. Master and Servant — Safe Place to Work — Question for Jury.— Plaintiff’s intestate, employed in widening a canal, was walking on top of an old rock wall used as 'a cofferdam, when it collapsed throwing him into the river where he was drowned. In an action for damages for his death, evidence that the wall after removing the supporting soil, was without sufficient strength to withstand the force of the imprisoned waters, was sufficient to t’ake the case to the jury.</p> <p>2. Death — Conflict of Laws — Evidence.'—By the acts of the legislature yielding the sovereignty of the state to the United 'States over the place where intestate was killed, the cession was made contingent upon other events happening thereafter, and the record is without evidence as to when, if at all, the United States exercised its sovereignty over the canal property.</p> <p>3. States — Jurisdiction—Death.—in such action, the presumption is that the law of the state is co-extensive with its territorial limits until an exclusion is shown hy one claiming it; and to defeat plaintiff’s cause of action it was incumbent upon defendant to plead and prove that the place of the accident was upon territory theretofore ceded by the state to the United States in the manner and for the purpose stated in Art. 1, Sec. 8, constitution, viz.: forts, arsenals, dockyards, and other needful buildings.</p> <p>4. Trial — Tender of Amended Pleading. — Defendant’s offer of an amended pleading tendering a distinct defense from that contained in its answer made at the conclusion of plaintiff’s testimony was properly rejected by the trial court.</p>

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

<p>Clerks of Courts — Compensation—Clerks of Fiscal Courts — Fees —Statutory Provisions. — Section 1835, Kentucky Statutes, and section 3, Acts 1916, chapter 72, page 598, providing that the clerk of the county court shall by virtue of his office be clerk of the fiscal court and for his services the fiscal court shall annually make him a reasonable allowance to be paid out of the county levy are exclusive, and the clerk of ’a county court while acting as clerk of the fiscal court, is not entitled to charge a fee of thirty cents to be paid by each claimant for issuing warrants against the county treasurer on claims in excess of $5.00 allowed by the fiscal court against the county, as prescribed by section 1720, Kentucky Statutes.</p>

<p>1. Appe'al and Error — Law of the Case. — Upon a second appeal the opinion rendered on the first appeal is the law of the case, bind-ing both upon the trial court and this court.</p> <p>2. Appeal and Error — Res Judicata. — Where a question of proximate cause of an injury is presented and considered upon the first appe'ai, it becomes res judicata upon the second appeal.</p> <p>8. Trial — Instructions.-—It is not error for the trial court to exclude evidence tending to establish a custom among a certain class of workers when the court at the time announces his purpose to give, and does in fact give to the jury an instruction directing them to find' for defendant if plaintiff spoke the words which defendant contends was evidence-of the custom.</p> <p>4. Damages — When Verdict Not Excessive. — Where the injury complained of to the leg is permanent and reduces the earning power of complainant, a verdict of two thousand dollars can not be said to be excessive.</p> <p>5. Damages — Personal Injuries — Surgical Operation. — One is not required to undergo a serious surgical operation in order to repair an injury wrongfully inflicted by another in order to minimize the damage, but he must exercise ordinary care not to aggravate or increase the injury.</p> <p>6.Damages — Recovery—Physicians and Surgeons — One who exercises ordinary care to secure a competent physician and surgeon to treat him for an injury is not chargeable with any neglect or unskillfulness of the physician or surgeon, and his recovery will not be reduced on that account.</p> <p>7.Damages — Surgical Operation — Elements of Damages. — Where a surgical operation is necessary in order to repair an injury to a limb inflicted through the negligence of another in order to minimize the resulting damage and reduce the recovery, the pain, suffering, loss of time and expenses incident to such operation are elements of damage which may be taken into consideration in a suit to recover for the negligence.</p>

<p>1. Insurance — Life Insurance — Application—True Copy — -What Constitutes — Admissibility in Evidence. — Where the application for insurance consists of parts A and B which are signed by the applicant, and parts C, D and E, and the report of inspection, on the reverse side of the page, which was signed by the examining physician, the latter portion constitutes no part of the application as signed by the applicant and the omission thereof from the copy of the application ^attached to the policy will not have the effect of rendering such copy inadmissible in evidence.</p> <p>2. Insurance — Life Insurance — Action on Policy — Defenses—Fraudulent Representations — Effect.—An application for insurance contained the following: “Wherever nothing is written in the following paragraphs it is agreed that the declaration is true without exception.” Succeeding this provision was the following: “I have never had any of the following diseases: Apoplexy, appendicitis, asthma, bronchitis, cancer or other tumor, consumption, . . . except-.” Following this paragraph nothing was written. Held, that ’as the declaration was unqualified, the applicant represented to the company that he had never had the consumption; and as the uncontradicted evidence showed that this representation was not only false but material, the company was entitled to a directed verdict.</p> <p>3. Contracts — Validity—Fraud or Mistake — Application for Insurance — Signing Without Reading. — One who can read, and has an opportunity to read, an application for insurance which he signed without reading, is bound by the fraudulent representations therein contained unless it appears that he was misled as to the nature or contents of the application or his signature was obtained by fraud.</p>

<p>1. Witnesses — Leading Questions. — The leading questions complained of examined and held not prejudicial to any substantial right of appellant.</p> <p>2. Criminal Law — Continuance—Absent Witnesses. — It is well settled that the defendant in a criminal prosecution is not entitled to a continuance on account of the non-attendance of witnesses in the absence of a reasonable showing of diligence to procure their attendance.</p> <p>3. Criminal Law — Trial—Instructions.—In a prosecution for a violation of the local option law the offense charged in the warrant and for which appellant was convicted was one denounced by section 2557 of the Kentucky Statutes, and the instructions were properly based upon this statute.</p> <p>4. Criminal Law — Trial—Evidence.—The record furnishes no ground for the complaint that the verdict is not supported by the evidence.</p>

<p>Appeal and Error — Law of the Case. — The opinion of the Court of Appeals upon the first appeal of a case is the law of the case in subsequent trials.</p>

<p>1. Easements — Establishment of Passway — Evidence.— Passways being like all servitudes, limitations of, or deductions from, another person’s ownership and dominion over his land, should be clearly established by the proof before the landowner should be thus deprived of his property.</p> <p>2 Easements — Right of Passway by Prescription. — A right to a passway by prescription is founded upon the presumption of a grant which can only arise from the adverse, uninterrupted, and continuous use of the passway, by the • person asserting the right, or by his predecessor in title, for a period of 15 years; but the presumption of the grant from a mere user, though con-tinned for a period longer than 15 years, will not avail the claimant if the use was permissive only.</p> <p>3. Basements — Passway—Permissive Use. — Whenever the use of a passway is interrupted or controlled by the owner of the servient -estate, as a matter of right, such interruption and control is evidence that the use was permissive only.</p> <p>4. Easements — Implication in Favor of Passway. — Where a tract of land is conveyed which is separated from the highway by other lands of the grantor, or which is surrounded by his lands or by his lands and those of third persons, there arises by implication in favor of the grantee a way of. necessity across the premises of the grantor to the highway.</p> <p>5. Easements — Implication of Grant. — Necessity does not of itself create a right of way; but it is evidence of the grantor’s intention to convey one, and raises an implication of a grant.</p> <p>6. Easements — Passway.—If one has an outlet over his own land, although less convenient, he cannot claim a passway over the premises of another; or, if there already exists a road accessible to him though very inconvenient or in very bad condition, a w'ay of necessity cannot ordinarily be implied.</p> <p>7. Easements — Implied Grant of. — On the conveyance of one of several parcels of land belonging to the same owner, or upon a partition of land in a judicial proceeding between the heirs of a, deceased owner, there is an implied grant or reservation of all apparent and continuous easements or incidents of property which have been created or used by the owner during the unity of possession, though they could then have no legal existence apart from his general ownership.</p> <p>8. Easements — Passway—Partition of Land. — The passway in use at the time a partition between the heirs was made is the pass-way the parties will be deemed to have agreed upon; their successors in title cannot claim a different outlet or passway upon the ground that it would be more convenient.</p>

<p>1.- Deeds — Action, to Correct — Fraud.—Evidence examined and held insufficient to support ’appellants’ contention that the deed for the house and lot in controversy was, through the fraud of appellee, made to her instead of to her husband under whom appellants claim.</p> <p>2. Limitation of Actions — Action to Correct Deed — Infants.—While the statute of limitation does not run against hn infant, it does begin to run as soon as he attains his majority, and since this action was not instituted to correct the deed and have relief against fr'aud for more than ten years after the youngest child became twenty-one years of age, the statute of limitation interposed by appellee was properly sustained.</p> <p>3. Executors and Administrators — Settlement.—In a case where by the provisions of a will the life tenant, who is hlso executrix without bond, is entitled to the absolute use and control of all the property of the estate during her natural life, upon proper application a court will require the executrix to settle her accounts, and this though she he not required to pay over any part thereof or ’account to the remaindermen.</p>

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

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

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

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

<p>1. Carriers — Passengers—Action for Assault) — Evidence—Admissi. bility. — In a passenger’s action against a carrier for an assault by its brakeman, evidence of plaintiff’s physical condition was inadmissible, there being no claim that plaintiff was struck or injured by the brakeman.</p> <p>2. Carriers — Passengers—Action for Assault — Evidence—Admissibility. — In a passenger’s action for assault by a brakeman, evidence that certain women left the stopping place because of the language employed by the brakeman was properly excluded, though evidence that the assault took place in the presence of the women was admissible.</p> <p>3. Carriers- — Passengers—Action for Assault by Brakeman — Leaving Train and Carrier’s Premises at Intervening Stopping Place —Assault by Brakeman — Liability of Carrier. — Where, according to custom, a passenger left the train at an intervening stopping place to await the train’s return from a nearby station, and then repaired to a bakery located several yards from the stopping place and off the carrier’s right of way, the relation of carrier and passenger was suspended, and the carrier was not liable for an assault by its brakeman occurring in the bakery.</p> <p>4. Carriers- — Passengers—Action for Assault by Brakeman — Instructions. — In a passenger’s action for an assault by a brakeman, it was error to instruct the jury to find for the defendant if they believed from the evidence that the insulting language used by the brakeman was the result of mutual altercation between the plaintiff and tlie brakeman, willingly engaged in by both of them, since there was no evidence on which to base the instruction.</p>

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

<p>1. Elections — Corrupt Practices Act — Piling Statement of Expenditures — Time.—The provisions of sec. 4, Corrupt Practices Act, requiring statements of campaign expenditures to be filed fifteen days before ’and thirty days after an election, are directory as to the time in which they are to be filed, requiring a reasonable and substantial rather than a literal compliance; but otherwise they are mandatory.</p> <p>2. Elections — Election Commissioners — Duties — Injunction. — The duties of election commissioners are purely ministerial, confined to a tabulation of votes and the issuance of certificates of nomination or election to candidates, shown by the returns to be successful, who have filed the required statements of expenditures; and, by mandatory injunction, they may be compelled to perform these duties.</p> <p>3. Elections — Mandatory Injunction to Issue Certificate — Parties— Interest. — An unsuccessful candidate can not, except in a contest filed in the time and m'anner prescribed by law, question the validity of an election on the ground of a violation, of any of the provisions of the Corrupt Practices Act.</p>

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

<p>1. Criminal Law. — Review—Jurisdiction.—Criminal Code, section 281, deprives the Court of Appeals of jurisdiction to review, on appeal, any error, however prejudicial to the defendant, committed by the trial court in the summoning or formation of the jury.</p> <p>2. Criminal Law — Review..—Criminal Code, section 281, does not take from the defendant any right guaranteed to him by the Constitution of the state, nor by the Fourteenth Amendment to the Federal Constitution. The right to have reviewed by the Court of Appeals the decisions of a trial court is not one inherently possessed by the defendant; but it is a matter of grace to be granted or withheld by the legislature.</p>

<p>1. Indemnity — Consideration for Execution of Bond of — Subsequent Execution. — Where a bond of indemnity is executed simultaneously with the undertaking of the indemnitee, or is subsequently executed pursuant to an agreement or arrangement made between the indemnitee and the indemnitors, at the time or before the indemnitee assumed liability there will be sufficient consideration for its execution.</p> <p>2. Indemnity — Subsequent Execution of Bond of — When Not Binding on Indemnitors. — If a bond of indemnity is executed subsequent to the time when the indemnitee became liable upon the undertaking for which he wants indemnity, and without a new consideration, the indemnitors will not be liable on the bond unless it was executed pursuant to a prior arrangement.</p> <p>3. Indemnity — Scope and Effect of Bond of — Liability of Indemnitors. — Where a bond of indemnity undertook to indemnify the indemnitee against any loss or damage he might suffer on account of his suretyship in a sheriff’s bond, the indemnitors became liable to the indemnitee for the amount he was required to pay as such surety in satisfaction of a judgment against him, unless he had by negligence or laches released the indemnitors from liability.</p> <p>4. Indemnity — Bond of — What Laches or Negligence of the Indemnitee Will Release the Indemnitor. — The laches or negligence of the indemnitee that will release the indemnitors on a bond of indemnity conditioned like the one here in question must be the direct result of some act or conduct on the part of the indemnitee but for which he would not have suffered any loss. In other words, when the indemnitee is sought to be made liable on his undertaking he must not by his laches or negligence put upon the indemnitors a burden they would not otherwise be compelled to bear, but this duty does not go to the extent of obliging the indemnitee to bring suit against his principal or third parties to protect the indemnitors or to take any steps to recover from his principal or third parties the fund for which he has become liable on his undertaking. It is the business of the indemnitors to resort, for their own protection, to remedies like these if they desire to do so.</p>

<p>1. Criminal Law — Evidence—Opinion.—An undertaker, wlio prepared for burial tbe body of tbe victim of a homicide, having testified that he had been an undertaker for nearly twenty years and had quite a bit of experience in examining gun shot wounds upon the bodies of human beings, was qualified, after describing the appearance of the several wounds in the body of the deceased, to state his opinion from such appearances as to which of the wounds resulted from the entrance or exit of a bullet.</p> <p>2. Jury — Separation.—Where one of a jury, accepted to try a homicide case, in the presence of the jury, court, accused, and counsel, approached a spectator in the court room to ask him to look after his horse, and was, at the beginning of his conversation, intercepted by the sheriff and returned to his seat, there was not a separation of the jury.</p>

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

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

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

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

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

<p>1. Exemptions — Not to Extend to Other Articles. — When a specific article of personal property is made exempt, hy statute, from seizure and sale, for the payment of the debts of the owner, the courts are not authorized, hy construction, to extend the exemption to another or different article.</p> <p>2. Exemptions — Determined hy Statute. — As in the absence of a statute creating exemptions, all property is subject to execution, the right of the debtor to an exemption is determined by the statute which creates it.</p> <p>3. • Exemptions — Construction of Statute. — The true rule of construction of a statute, which creates exemptions of property from Coercive sale for the payments of debts, is to ascertain the intent of the legislative authority in enacting it, as in the con- ■ struction of other statutes.</p> <p>4. Exemptions — Statute—Crop of Tobacco. — A crop of tobacco is not “income earned by labor,” within the meaning of section 1697 Kentucky Statutes, and is not exempt from coercive sale for the p'ayment of the owner’s debts, except when the debtor has not provender on hand suitable for the maintenance of his live stock, the tobacco or a sufficiency of it may be exempted in lieu of the necessary provender not on hand.</p> <p>5. Exemptions — Income Earned by Labor. — The “income earned by labor,” contemplated by' section 1697, Kentucky Statutes, is an income, which can be measured in denominations of money, per month, the receipts being similar in character to that received from a salary or wages, although not necessarily payable at fixed times or in fixed amounts, but, at the times and in the amounts, the proceeds of labor may be received, as in the case of proceeds from the occupation of a mechanic may arise, and such like.</p>

<p>1. Appeal and Error — Application for Appeal — Requisites.—Under Kentucky Statutes, section 950, subsection 3, where the amount in controversy is more than $200.00 and less than $500.00, the practice to obtain a review is by a motion for an appeal and not by an appeal granted by the clerk; but where an appeal improperly granted below has been dismissed, the subsequent filing in time of the record without a motion for an appeal, or the granting of an appeal by the clerk of this court, will be treated as a motion for an appeal as required by the statute.</p> <p>2. Appeal and Error — Separate Actions for Damages — Joint Trial— Reversal of One Judgment — Effect on the Other. — Where on a joint trial of two separ'ate actions against the same defendant for damages growing out of the same negligent act, judgments were rendered in favor of the defendant, and on appeal by one of the plaintiffs, the judgment against him was reversed, the subsequent application of the other plaintiff for an appeal will be granted and the judgment against him reversed for the same reason.</p>

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

<p>Appeal and Error — Amount in Controversy — Jurisdiction—Dismissal. — The amount in controversy not being sufficient to authorize an appeal, the motion for an appeal is denied.</p>

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

<p>1. Appeal and Error — New Trial — Motion for. — Where the evidence heard upon a motion for a new trial based upon the ground of implied bias of a juror is not supported by t'be affidavit of tbe defendant nor any of it made a part- of the record in any manner prescribed by the law, the action of the trial court in overruling the motion cannot be reviewed on appeal.</p> <p>2. Criminal Lav/ — Trial—Right to be Confronted by Witnesses — ■ Waiver. — It is competent for a defendant in a criminal prosecution to waive his constitutional privilege of being confronted with the witnesses against him “face to face,” and if he in person consents that' the testimony of such witnesses may be introduced without being present, he thereby waives such privilege and cannot insist upon it as a ground for reversing the judgment finding him guilty and fixing his punishment.</p>

<p>1. Evidence — Testimony of Physician as Expert. — Where a physician has held for several years the office of county health' officer, is shown to be a skilled and reputable physician of several years’ experience, and his acquaintance with a septic tank and sewerage system used by a city, together with his knowledge of sanitary matters, enable him to understand the conditions likely to produce disease, he is qualified to testify as an expert respecting the conditions existing in and about the septic tank, and to express an opinion as to whether the tank is inadequate in capacity to dispose of the sewage flowing into it; and also whether the conditions existing at and about it are a menace to the health or comfort of the residents of the community.</p> <p>2. Criminal Law — Submission to Jury — Appeal and Error. — In the trial of a criminal or penal case the rule is well established that where there is any evidence, however slight, conducing to show the guilt of the accused, the case should be submitted to the jury; and the Court of Appeals will not reverse a judgment on the ground that it is against the evidence, unless it is flagrantly so.</p> <p>3. Evidence — Submission to Jury — Nuisance.—The evidence in this case, wherein appellant was convicted of maintaining a nuisance, examined; and held sufficient to authorize the submission of the case to the jury.</p>

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

<p>1. Principal and Agent — Subsequent Grant of Authority Will Not Validate Prior Acts of Agent.. — Where a person assuming, without authority, to act for another, does something in the name of the other, his act will be void as to the principal, and the fact that the principal may subsequently authorize the party, acting without authority, to do such things as he did without authority, will not impart validity to his acts prior to the giving of the authority to perform them.</p> <p>2. Principal and Agent — Subsequent Grant of Authority Will Not Validate Prior Acts of Agent. — Where B, without authority so to do, conveyed a tract of land to C as the agent of A, the fact that A subsequently, and without knowledge of what B had done, authorized him to convey the land, did not impart validity to the previous conveyance made by B. It was void.</p> <p>3. Principal and Agent — Ratification — Definition of. — Ratification implies knowledge and without knowledge there can he no ratification. A party cannot he estopped by some act or conduct of another that he did not authorize and never knew anything about.</p> <p>4. Vendor and Purchaser — Title Subsequently Acquired Will Inure to Benefit of Vendee. — If a party who has no title to land sells and conveys it with covenant of general warranty, and thereafter comes into the title to the land so previously sold, his title will inure to the benefit of the grantee.</p> <p>5. Estoppel — Laches—When Party Not Estopped by. — A party can not be estopped by his laches or failure to act unless he was under some duty to take notice of the matter in controversy, and the owner of land is under no duty to take notice of its sale by a stranger, and is not estopped by length of time to set' up title to his land that was wrongfully sold in the absence of notice of its sale.</p> <p>6. Deeds — Constructive Notice — Scope and Limitations of. — The purchaser of land from the owner who had theretofore granted power of attorney to another party to sell it, is only charged with constructive notice of what the agent did subsequent to the power of attorney, and is not charged with notice of what the agent may have theretofore done, and at a time when he had no authority to do anything.</p> <p>7. Adverse Possession — Adjoining Landowner. — Where the owner of a tract of land of which he is in the actual possession under a good title gets a deed to an adjoining tract' from a person who had no title, and thereafter includes the land to which he had title, as well as the land to which he had no title, in a marked boundary, he cannot assert title by adverse possession to the land to which he had no title, as against the real owner of it, unless he actually enters upon and takes possession of the land to which he had no title.</p>

<p>Appeal and Error — Findings.—In an action at law when a trial by jury is waived by agreement of the .parties and the case submitted to the trial court upon the law and facts, the court's; findings of fact must be given the same weight that' would be: accorded the verdict of a properly instructed jury. Therefore, a, judgment rendered by the circuit court on conflicting evidence; will not be disturbed on the claim that it' is not sustained by the; evidence, unless it is clearly and palpably against its weight.</p>

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

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

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

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

<p>1. Seduction — What Commonwealth Must Prove — Sufficiency of Evidence. — In a prosecution for seduction under section 1214 of the Kentucky Statutes, it is only necessary that the Commonwealth should prove first, the act of seduction, and second, that it was accomplished under and by reason of a promise of marriage, and a conviction may be had upon the evidence of the prosecuting witness alone, no corroboration being necessary.</p> <p>2. Seduction — Evidence of Pregnancy or Birth of Child Incompetent. —In a prosecution under the statute for seduction, evidence of pregnancy of the prosecuting witness, or the fact that she gave birth to a child is incompetent, and the exhibition of the child, alleged to be the' offspring of the seduction complained of, as the child of the defendant is inadmissible.</p> <p>3. New' Trial — Misconduct of Attorney — Argument of Incompetent Evidence. — Where the Commonwealth’s attorney, in his argument before the jury, commented on incompetent and prejudicial evidence permitted to be introduced against the defendant, it was reversible error.</p>

<p>1. Wills — Ademption of Legacy.' — The ademption of a legacy is effected when by some act of the testator its subject matter has ceased to exist in the form in which it is described in the will, so that on his death there is nothing answering the description to be given to the beneficiary; or when the testator, during his life, satisfies the gift either in whole or in part by giving the beneficiary what was designed for him under the will; or when under the terms of the will, advances made during the life of the testator are to be deducted from the portions given to the beneficiaries by the will.</p> <p>2. Wills — Ademption of Legacy — Gifts.—An ademption contemplates the substitution of one gift for another, and can have no application to the settlement of business demands between the parties.</p> <p>3. Wills — Trial—Argument of Counsel, — The act of the trial court in improperly placing the burden upon the defendant which carried with it the right to the concluding argument did nob prejudicially affect the defendant’s substantial rights.</p> <p>4. Wills — Construction—Rule of. — The general rule is that a will ■■ is to be construed from the written language of the instrument and that parol or extrinsic evidence is admissible to add to, vary or contradict its terms; it is only where the language of a will is uncertain and doubtful, or contains a latent ambiguity, that 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.</p> <p>5. Appeal and Error — Trial—Instructions.—Although an instruction to the jury is subject to criticism for want of clearness it will not constitute a reversible error if it substantially submitted the issue and was not calculated to mislead the jury.</p>

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

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

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

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

<p>1. Elections — Contest—Practice.—A contestee may demur to tha sufficiency of the petition of contestant, but if he elects to do so he must file the demurrerf as well as any other defense he may desire to rely upon, within twenty days after the service of the summons upon him.</p> <p>2. Elections — Contest—Pleading.—A petition, which states the grounds of contest with sufficient certainty to apprise the eontestee of the grounds of the contest, is sufficient to sustain the action, under section 1596a, sub-section 12, Kentucky Statutes.</p> <p>3. Elections — Parties—Pleading.—A plaintiff, to whose petition there is no defense, is entitled to the relief which can be granted within the fair scope of the allegations and prayer of the petition.</p> <p>4. Elections — Certificate of Election — Injunction.—A person, to whom the proper authorities have regularly issued a certificato ci election to an office, can not tie enjoined from qualifying and performing the duties of the office.</p>

<p>1. Railroads — Fires—Evidence.—Circumstantial evidence will suf- , flee to sustain an allegation of negligence in the operation of trains, or in the equipment of smoke stacks with spark arresters, and a verdict, holding a railroad company liable for damages by fire alleged to have been started by sparks from a passing engine, will not be disturbed even though the plaintiff be unable to show by direct evidence that sparks were emitted from the engine if the circumstances be such as to warrant the conclusion that the fire originated in that way.</p> <p>2. Railroads — Fires-—Negligence.—If a railroad company negligently allows combustible material to accumulate and remain upon its right of way adjacent to the track, it will be liable for damage by fire to adjacent property where the fire originates in said combustible matter upon its right-of-way through sparks from its engine, and this though the engine be properly equipped with spark arresters properly adjusted and the train be prudently operated.</p> <p>3. Railroads — Fires—Negligence.—It is prima facie negligence for a railroad company to allow inflammable material to accumulate and be upon its right of way.</p>

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

<p>1. Covenants — Covenants Running with the Land — -Construction of. —Where a city by an ordinance contract permitted a railroad to lay its tracks in the city in consideration of the doing of certain improvements by the company, and the ordinance further provided that the company should provide and maintain suitable means for draining water under its tracks, and upon its failure to do so, the city should have the right to compel performance, these conditions were covenants running with the land, and the purchasers and lessees of the company were bound by the terms of the contract.</p> <p>2. Covenants — Covenants Running with Land — Remedies for Enforcement of. — Where a railroad company, in consideration of its right to enter a city, agreed to make such drainage improvements as might be necessary, the city, upon its failure to do so, had the right, to have the improvements made at the cost of the railroad company.</p> <p>3. Railroads — Liability of Purchaser and Lessee of to Perform Conditions in Contract with Original Railroad. — Where a. railroad company obtained the right to enter a city under an ordinance contract, the purchaser of the road and a lessee of the purchaser, were bound to perform the conditions imposed by the ordinance to the same extent as the company with whom the' contract was made.</p> <p>4. Railroads — Liability for Improvements Under Ordinance Contract with City. — Right’ of City to Determine Necessity for Improvements. — Where a railroad company in consideration of the right to enter a city agreed to make such drainage improvements as might be necessary, the city in the exercise of a reasonable discretion had the right to prescribe the character of the improvements.</p> <p>5. Railroads — Remedies of Contractor and City to Recover Cost of Improvements That a Railroad Should Have Made. — Where a railroad company failed to make certain improvements in a city that it bound itself to make, the city had the right to have the improvements made by a contractor and to join with the contractor in a suit to recover from the railroad company, for his benefit, the cost of the improvements.</p>

<p>Divorce — Alimony—Amount of Alimony to be Awarded — Evidence. — In considering what alimony should be awarded where a divorce from the bonds of matrimony is granted to the wife on the grounds of cruel treatment, the court may consider the ill treatment of the wife in determining the amount that should be allowed.</p>

<p>1. Municipal Corporations — Exercise of Governmental Functions— Negligence — Liability.-—A city is not liable for tbe death by drowning of a boy, who fell from the wall of a culvert, constructed upon private property near a street, into a temporary pool of water formed after a hard rain, and was drawn through the unguarded culvert into a sewer underneath the street, because the city in the construction» and maintenance of the sewer exercised a governmental function only.</p> <p>2. Negligence — Attractive Nuisance — Knowledge.—Owners of property upon which a city constructed and maintained a culvert, underneath which and beyond the property line was an open sewer into which drained the surface water, are not liable for the death from drowning of a boy who fell from the wall of the culvert into a pool of water formed after a hard rain and was drawn through the unguarded culvert into the sewer, where they had neither actual nor imputed knowledge of the sewer connection or the resultant danger thereof.</p>

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

<p>1. Municipal Corporations — Public Improvements — Action to Enforce Lien — Powers of Council. — In an action to enforce an improvement lien, tbe property owner, having admitted the acceptance by the city of the improvement and having made no attempt to prove his charge of fraud and collusion in avoidance of such acceptance, is precluded from questioning whether or not the wort was done according to contract, the city, in the absence of fraud or collusion, being the sole judge of that fact.</p> <p>2. Municipal Corporations — Contract for Public Improvements — Description of Improvement. — A contract awarded by a city for paving the “roadway” of an alley, definitely excluded from its operation a strip of ground on west side of alley having thereon a concrete platform used as part of a railway passenger station and by the public generally under express authority of the city.</p> <p>8. Municipal Corporations — Public Improvements — Actions to Enforce Lien — Defenses.—The failure of the contractor to pave a part of the alley not included in the contract for the improvement presents no defense to an action to enforce the improvement lien.</p>

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

<p>Evidence. — Evidence examined and found to support verdict.</p>

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

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

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

<p>1. Insurance — Insurable Interest — Divorce.—A wife who is named beneficiary in a policy of insurance on the life' of her husband and w.ho obtains a divorce from him, can not thereafter keep the policy alive by paying the annual premiums thereon, because she has no insurable interest in the life of her divorced husband.</p> <p>2. Insurance — Insurable Interest — Public Policy. — It is against public policy for one not having an insuraole interest in the life of another to be allowed to carry or enforce a policy of insurance upon the life of such other.</p> <p>3. Insurance — Insurable Interest — Persons Living as Man and Wife. —Where a man and woman live together as man and wife though not married, they have an insurable interest in the life of each other so long as the relation continues, but the instant the relation ceases the insurable interest terminates.</p>

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

<p>1. Vendor and Purchaser — 'Fraud—Rescission.—An innocent misrepresentation by the vendor as to the state of his title-is not fraud warranting a rescission where all material defects in the title were cured at the time of the trial.</p> <p>2. Vendor and Purchaser — Executed Contract — Duty of Vendor to Exhibit Title. — The rule that a vendor must exhibit a good legal title applies only to a ease where the vendor seeks specific performance of an executory contract with covenants of warranty, and does not apply where the vendor sues to recover the purchase money under an executed contract with covenants of warranty and the vendee whose possession has not been disturbed asks a rescission on the ground of defective title and the non-residency of the vendor.</p> <p>3. Vendor and Purchaser — Rescission—Breach of Covenant. — Where the vendee is in undisturbed possession of the property under an executed conveyance with covenants of warranty, a bill for the dissolution of the contract can not be sustained and the payment of the consideration enjoined, except in case of fraud, insolvency or non-residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss without legal remedy, by reason of the defects in the title conveyed, and the inability of the vendee to protect himself against eviction under it; and to sustain such a bill the onus lies on the vendee to establish to the satisfaction of the chancellor that the defect of title and imminent danger of eviction and loss exist.</p> <p>4. Vendor and Purchaser — Rescission—Non-Residency of Vendor— warranty, a rescission will not be decreed on account of the non-of the property under an executed conveyance with covenants of warranty, a recission will not be decreed on account of the non-residency of the vendor and defective title, where all material defects are cured during the progress of the action, and there are outstanding no superior rights such as to justify a well grounded apprehension of immediate or ultimate eviction or loss of the land.</p> <p>6. Bankruptcy — Purchaser at Bankruptcy Sale — Title.—Where the bankrupt had parted with its title to property prior to the institution of the bankruptcy proceeding, a purchaser from the trustee acquired no title.</p>

<p>1. Remainders — Cross-Remainders.—Where a particular estate is conveyed to several persons in common, or various parcels of the same land are conveyed to several persons in severalty, and upon the termination of the interest of either of them his share is to remain over to the rest, the remainders so limited over are said to be cross-remainders.</p> <p>2. Remainders — Cross-Remainders.—Cross-remainders cannot arise in deeds without express limitation; in wills they may arise by implication.</p> <p>3. Wills — Devise to Daughters and Their Children — Construction— Estate Created. — A devise of a farm to the testator’s daughters D. and J. and “their children” vested the first takers with life estates in one-half of the land devised and did not create cross-remainders whereby the share of one daughter who died without issue .would go to the children of the other daughter. In that case .the share of the daughter who died without issue' passed to the testator’s, heirs, as undevised property.</p>

<p>1. Elections — 'School Elections — Female Voters — Under the statute imposing upon female voters in school elections the additional</p> <p>. qualification that they shall be able to read and write, it is suffi- ' ’ cient if the voter can read in a reasonably intelligent manner sentences composed of words in common use, and of average difficulty, though each and every word may not always be accurately pronounced; and, one is able to write if, by the use of alphabetical signs he can express in a fairly legible way words in' common use and of average difficulty, though each and every word may not be accurately spelled.</p> <p>2. Elections — School Elections — Female Voters. — The fact that a female voter can write her name, and no more, does not satisfy the statute and does not qualify her as a voter.</p> <p>3. Elections- — School Elections — Female Voters. — Where the proof shows that a female voter could write her name, hut went no further, the presumption will he indulged that she could write more than her name, and was therefore qualified to vote.</p> <p>4. Schools and School Districts — Transfer to Another District. — An order transferring the owner of a farm from one school district to another will he construed to transfer the entire farm, including the tenants thereon, unless the order specifically excludes them.</p>

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

<p>1. Executors and Administrators — Administrator With, the Will Annexed — Powers.—Whether an administrator with the will annexed has the powers, in the sale of property, conferred on the executor named in the will, and may exercise them as provided in section 3892 of the Kentucky Statutes, depends on the nature of the powers confided to the executor,</p> <p>2. Executors and Administrators — Will Hold Property Purchased in Trust for Infants. — Where an executor or administrator purchases property owned by the estate, he will hold it as trustee for the heirs, who will be the beneficial owners.</p> <p>3. Infants — Void Sale of Land of — When Estopped to Recover— Ratification. — Where there has been a void sale of infants’ land by an administrator, the infants, after reaching their majority, will be estopped to recover the land if, after arriving at age, they accepted the proceeds of the sale with a full knowledge of the facts.</p> <p>4. Infants — Void Sale of Land of — When Will Be Estopped to Recover — Limitation.—Where there has been a void sale of infants’ land their acceptance of the proceeds of the sale, after arriving at age, will not amount to a ratification of the sale unless they had actual knowledge of all the facts. In the absence of actual knowledge their acceptance, after arriving at age, of the proceeds will not operate as a bar to a suit to recover the property until after the expiration of ten years from the date of acceptance.</p> <p>5. infants — Judgment;--, y/fien Binding Upon. — Where an infant is a party to a suit and properly before the court, a judgment in the action will bind him to the same extent as an adult, subject to the remedies allowed infants.</p>

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

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

<p>1. Judgment — Judgment Non Obstante Veredicto. — Where plaintiff asked for a peremptory instruction which should have been given, he is not thereafter entitled to a judgment notwithstanding the verdict for defendant, but only to a new trial for the error of the court in refusing the peremptory.</p> <p>2. Pleading — Issue.—In a suit for damages for the breach of a contract, the answer and amended answer examined and held to admit the execution of the contract</p> <p>3. Trial — Pleading — Issue — Submission — Instructions — Error.— Where the execution of the contract sued on is admitted by the ’ pleadings of the defendant, it is error to submit the issue of non est factum to the jury.</p> <p>4. Pleading — Issue.—In an action by the seller against the buyer for damages for the breach of a contract for the purchase of flour, the defendant’s pleadings examined and held not to present the issue that the flour contracted for, was worthless.</p> <p>5. Evidence — Similar Pacts — Exclusion as Res Inter Alia Acta.— In an action for the refusal of a buyer to accept flour, evidence that flour of the same brand theretofore ordered by the buyer, and ordered by others about the same time, was of inferior quality, without any showing that the flour testified to was manufactured under the same circumstances and conditions and out of the same quality of wheat as the flour in controversy, was incompetent.-</p> <p>6.. Trial — Pleading—Issues and Prooi — Submission—Error.—It was error to submit to the jury an issue which was neither pleaded nor proved.</p> <p>7. Trial — Pleading—Issues and Proof — Peremptory Instruction.— Where in an action for the refusal of a buyer to accept flour, the only defenses were a plea of fraud and a counterclaim for damages growing out of a prior shipment of flour, and there was no evidence to support either defense, plaintiff was entitled to a peremptory instruction.</p>

<p>1. Mines and Minerals — Oil Lease — Construction of. — Where a lease stipulated that it' should continue for a period of two years and as long thereafter as the lessee produced oil in paying quantities, the digging of one well, within the two yeárs, on the leased premises, that produced oil in paying quantities was a compliance with the lease-contract under the facts of this case.</p> <p>2. Mines and Minerals — Oil Lease — Forfeiture.—Where there has been a failure on the part of a lessee of an oil lease to substantially perform the conditions of the lease, it may be forfeited.</p> <p>3. Mines and Minerals — Oil Lease — Drainage of Oil From Leased Premises — Forfeiture.-—Although a lessee of an oil lease complies with the terms of the lease by digging one well on the leased ■ premises, if it appears that the lessee is draining the oil from the leased premises by wells sunk on adjacent lands, he may be compelled to sink other wells on the leased premises or submit to a forfeiture of the lease.</p>

<p>1. Constitutional Law — Due Process of Law — -Municipal Corporations —Nuisance.—-A void resolution of a city council declaring a specific building a nuisance and ordering its removal by the owner within a fixed time did not deprive the owner thereof of his property without due process of law.</p> <p>2. Injunction — -Municipal Corporations — Nuisance—Warrants of Arrest. — The issual of warrants of arrest for maintaining a nuisance against the owner of property in a fourth class city is not ground for injunction against members of the city council of such city; the procuring of the warrants being individual acts and, if maliciously done, the remedy at law is adequate.</p> <p>3. Prohibition — Right to Writ. — The owner of property in a fourth class city arrested under a police court warrant, charging him with maintaining a nuisance prohibited by ordinance prescribing a penalty of $10.00 to $25.00, has the right, under sec. 3513, Ky. Stat., to have any judgment penalizing him reviewed both by the circuit court and the Court of Appeals, and he cannot resort to the circuit court for a writ of prohibition against the police judge to prevent his trial under the warrants.</p>

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

<p>1. Mines and Minerals — Minerals as Real Property or Chattels.— Before severance, minerals are real property; after severance, they are chattels.</p> <p>2: Mines and Minerals — Construction of Contract. — An instrument, denominated a lease,, granting, for a consideration payable before severance of the minerals, the right, for a period of ninety-nine years, to “quarry, mine, or drill for minerals and oils,” is not a rental contract but a conveyance of real property.</p> <p>8. Venue — Process—Place of Service. — An action to enforce a lien for unpaid purchase money, reserved in deed conveying minerals, is local to county where the land lies; and a necessary party to that action served with summons, issued therein, in another county in this State, was properly in court.</p> <p>4. Liens — Maturity.—A lien for unpaid purchase money, reserved in deed for minerals and made payable when grantee saw fit to begin work to remove stone, became due and enforcible when grantee or his assignee began quarrying and removing stone from the land.</p>

<p>1. Counties — Purchase by Fiscal Court oí Adding Machine — Statute.— Authority to purchase an adding machine is conferred upon the fiscal court by section 1840, Kentucky Statutes.</p> <p>2 Counties — Purchase by Fiscal Court of Adding Machine. — An adding machine not only facilitates the work required of county officers, such as clerks of the courts, sheriffs, etc., hut its accuracy is such as to prevent errors in the computation of figures.</p> <p>8. Counties — Purchase of Adding Machine — Action for Mandamus. — • In an action for a writ of mandamus to compel the county treasurer to pay an adding machine company a county warrant issued for the payment of an adding machine, it was error to sustain the machine company’s demurrer to appellant’s answer which denied the purchase, delivery or acceptance of the machine. The issues of fact made by the denial cast upon the company the burden of showing the sale and delivery of the machine to the fiscal court.</p>

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

<p>1. Schools and School Districts — Apportionment of Tax on Cor» porations to White and Colored Schools. — Revenue arising from tax on corporations in a city of the fourth class must be apportioned according to the numerical pupilage of the white and colored schools of said city even though the tax thus collected is upon an assessment made only by the white board of trustees.</p> <p>2. Schools and School Districts — Disposition of Revenue — Constitutional Law.' — That part of section 3588a, Kentucky Statutes, which attempts to appropriate all taxes from corporations to the use and benefit of the white graded schools in cities of the fourth class, ■ is in contravention of the Federal and State Constitutions, and therefore void.</p> <p>3. Schools and School Districts — White and Colored Schools — Apportionment of Tax. — It is not important whether the stock of a corporation be owned entirely by one race or the other, the taxes arising from an assessment of the property of the corporation must be apportioned between the two schools.</p>

<p>1. Infants — Sale of Lands to Pay Ancestor’s Debts — Bond.—The bond required by section 493, Civil Code, to be executed by a guardian, to his ward, and to be recorded with the judgment, before a sale of the ward’s land can be adjudged, does not apply to a sale of an . infant’s lands to satisfy the debts of his ancestor or of his own debts.</p> <p>2. Infants — Sale of Land to Pay Ancestor’s Debts. — Where the lands of an infant are adjudged to be sold for the payment of his ancestor’s debts, and it is necessary for the protection of the infant’s interest, on account of the indivisibility of the land, to sell more land than is necessary to pay the ancestor’s debts, sections 493 and 497, Civil Code, apply to the excess.</p> <p>3. Infants — Sale of Lands to Pay Ancestor’s Debts. — It is error to adjudge the sale of the lands of a non-resident, who has been constructively summoned, and has not appeared in the action, where the action is purely for a sale for the satisfaction of his ancestor’s debts, without the execution of the bond required by section ,410, Civil Code, but, if the court has jurisdiction, the title of the purchaser will not be affected, unless as is provided by section 417, Civil Code. If such bond is not executed before the judgment, the court may require such bond to be executed before the proceeds are paid out, or else retain the custody and control of the proceeds until the time has expired within which the non-resident may re-open the case, as provided by section 414, Civil Code.</p> <p>4. Guardian and Ward — Disbursement of Ward’s Estate — Maintenance and Education. — A guardian is restricted in the disbursement of his ward’s estate, for the maintenance and education of the ward, to the income from the estate, except when the ward is of such tender years or infirm health that he can not be bound as an apprentice or no suitable person will take him as such, or when it is necessary for the best interest of the ward to use the principal of his personal estate for board and tuition. When the above exceptions occur, the principal of the personal estate may be encroached upon, but the real estate of the ward can not be sold nor the proceeds, when sold, applied to the maintenance or education of the ward, except the advice of the chancellor be first had and then a clear case of necessity must be shown.</p>

<p>Officers — Ursurpation of Office — Action to Prevent. — An action to prevent the ursurpation of the office of county attorney, where no other person is entitled thereto, can only be brought by the Commonwealth’s attorney; it cannot be brought by a private • citizen.</p>

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

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

<p>1. Elections — Contest—Voters—Qualifications — Educational Test — Illiteracy. — Under a statute conferring the right of suffrage in school elections on women who possess the legal qualifications of male voters and are also able to read and write, a voter who can write only her name, or her name and post office address, is not qualified.</p> <p>2. Elections — Contest—Qualifications—Educational Test' — Illiteracy— Stipulation of Facts — Effect.—'Where in a contest over the election of a school trustee, the parties in order to avoid the necessity of taking further proof, filed a stipulation of facts respecting the educational qualifications of certain women voters, the necessary inference from the stipulation that a certain voter “could write her name” is that that was the limit of her ability to write, and the effect is the same as if it had been stipulated that she could write her name and nothing more, and the trial court properly held that such voter was disqualified.</p> <p>3. Elections •— Contest •— Voter — Qualifications • — • Residence — Evidence. — Where in an election contest it appeared that a voter, who, after his father removed from the district, went to the residence of another in the district and continued to live there and claim the latter residence as his home, he was a resident of the district and qualified to vote, notwithstanding evidence to the effect that he was seen going to and from his father’s home and had his washing done there.</p>

<p>1. Taxation — Taxation of Franchise — Assessment of Omitted Property of Corporation'by a Revenue Agent- — What is Omitted Property? —Where a corporation is required to report certain items or species of property, and the value thereof, and it fails to report any item or species of property that it owns, the item or species of property, so omitted, may be assessed at the suit of a revenue agent.</p> <p>2. Taxation — Taxation of Franchise — Omitted Property — Burden of Proof.- — In a suit by a revenue agent to assess property alleged to have been omitted by a corporation in its report, the burden is on the Commonwealth to show the omission and the value of the property omitted, and on the corporation to show that not- ' withstanding the omission to report the species of property, the board, from other sources of information, considered it in making its assessment.</p> <p>3. Taxation — Taxation of Franchises — Omitted Property — Value of— How Fixed by Court. — In fixing the value for assessing purposes of an item of property that a corporation failed to report, the court should ascertain how much the assessment fixed by the assessing board should be increased on account of the addition of the value of the omitted property, and certify the increase, so found, as provided in the statutes. •</p>

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

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

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

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

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

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

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

<p>Waters and Water Courses — Surface Water — Damages.—Plaintiff sought damages sustained to his property on account of overflows produced by the wrongful and negligent construction of an alley'upon which his property abutted. He recovered a judgment for $1,000.00 and on appeal it is insisted that the overflows complained of were produced by unusual, extraordinary and unprecedented rains which the city was not required to anticipate and guard against, but the proof shows that the rains producing the complained’-of floods occurred two or three times per year, and while they might have been extraordinary they could not in any sense be regarded as unusual, for one is charged with the duty to anticipate and guard against a rainfall which occurs as much as two or three times per year, howsoever extraordinary it may be.</p>

<p>1. Appeal and Error — Amount in Controversy. — When plaintiff’s testimony «hows the amount to which he would be entitled to recover in any event, such amount governs his right to appeal when defeated in the action, regardless of the amount he claimed in his pleading, since the actual lamount in controversy is the one which governs, and this is fixed by plaintiff’s testimony rather than by his pleading.</p> <p>2. Appeal and Error — Amount in Controversy — Transcript.—No appeal can be taken from an order of the trial court gr'anting it where the amount involved, exclusive ■ of interest and cost, is more than $200,00 and less than $500.00; but in such case the remedy is to file the transcript with the clerk of this court and enter a motion for an appeal.</p> <p>3. Appe’al and Error. — Dismissal.-—Where plaintiff’s pleading sought a judgment against defendant for $500.00 and upon trial he admitted thé right to recover only $484.00, an appeal allowed by the court below to the plaintiff, who was defeated upon the trial, will be dismissed because not properly prosecuted.</p>

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

<p>1. Negligence — Actionable Negligence — Question for Court. — Where, . in an action to recover damages because of alleged negligence, there is no contradiction as to the facts, as to whether or not there is actionable negligence, is a question for the court.</p> <p>2. Negligence — Actionable Negligence Defined. — Actionable negligence arises from a failure to perform a duty, which one owes to another, and where there js no failure to perform a duty, there is no actionable negligence.</p> <p>3. Railroads — Crossings—Reciprocal Duties. — At a public crossing, a railroad company and the person using the crossing have a mutual and reciprocal duty of exercising care to avoid giving or receiving injury, and where the crossing is dangerous, an increased duty devolves upon each one of them, in proportion to the increase of the danger.</p> <p>4. Railroads — Crossings—Signals.—The customary and statutory signals, as a rule, are considered a reasonably sufficient warning of the approach of a train to an ordinary crossing in the country, when a sufficient lookout is, also, maintained.</p> <p>5. Railroads — Crossings—Warnings.—A railroad company is not negligent because of failure to moderate the speed of a train at an ordinary crossing, in the country, but, if the speed is great, care must be exercised to give warnings of its approach, commensurate with the danger.</p>

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

<p>1. Livery Stable Keepers — Liabilities for Injuries. — The owner of a livery stable, who habitually places wagons in a pubic street thereby obstructing the same, is liable for injury to a person who, in attempting to board an interurban car in the night time, stumbles over the shafts of the wagon and falls under the electric car, unless the injured person was himself guilty of such contributory negligence as but for which he would not have been injured.</p> <p>2. Municipal Corporations — Notice of Street Obstruction by Livery Stable Keeper. — A municipality which allows a liveryman .to habitually store wagons in a public street for a long period of time, is charged with notice of the presence of such obstructions in the street and is liable to a traveler injured by stumbling over the shafts of such wagons while attempting to board an interurban car, if the traveler is in the exercise of ordinary care for his own safety.</p> <p>3. Municipal Corporations — Notice of Street Obstruction by Pedestrian. — When a pedestrian has notice of the dangerous condition of a street, he is bound to exercise care commensurate with the necessities of the situation, but even with such notice or knowledge, if his attention be momentarily diverted and he does not see the obstruction, he will not be denied a recovery.</p>

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

<p>1. Master and Servant — Liability for Injuries — Failure to Prop Roof of Mine — Statutory Requirement — Custom.—Subsection 5, sec. 2726, Kentucky Statutes, requiring “every workman in need of props, cap-pieces and timbers to notify the mine forman, or an assistant mine foreman, or any other person delegated by the mine foreman of the fact at least one day in advance, giving number, size and length of props, cap-pieces and timbers required, etc.,” does not in terms impose upon every miner the duty of requesting props and doing his own propping, and the custom of the mine may be proved for the purpose of showing upon whom the duty of propping devolves without having the effect of changing the statutory requirement by custom.</p> <p>2. Master and Servant — Injuries to Servant — Duty to Prop — Rules.— The rules of a mine are not conclusive evidence of the terms of a contract of employment or the custom of the mine, for they may be waived.</p> <p>8. Master and Servant — Liability for Injuries — Assurance of Safety. —A timber man, to whom a coal company has delegated the duty of propping the roof of the mine, is a vice principal and may bind the company by an assurance of safety.</p> <p>4. Master and Servant — Safe Place to Work — Assurance of Safety. —It is not necessary thar the master or his representative shall assure the servant in terms that the place is safe. It is sufficient if under the circumstances, the acts and words of the master or his representative are in effect an assurance of safety.</p> <p>5. Master and Servant — Injury to Servant — Safe Place to Work— Assurance of Safety — Evidence.—Where there was evidence that a timber man, who had been sent to prop the roof of decedent’s working place, said as he was leaving the place, “All right, so long,” and that this in mining parlance meant -that everything was all right, it was a question for the jury whether the language .employed amounted to an assurance of safety.</p> <p>O. Master and Servant — Personal Injury — Question for Jury — Assumption of Risk — Assurance of Safety. — Where a coal company’s timber man h’ad assured the decedent, a miner, that his working place was safe, he had the right to continue his work without assuming the risk; unless the danger was so obvious that an ordinarily prudent person in his situation would have refused to do so, which was a question for the jury.</p> <p>7. Master and Servant — Injuries to Servant — Safe Place to Work.— Where the duty of propping devolved upon the mining company and the miner was not injured while removing the coal, it was the duty of the company to use ordinary care to furnish him a reasonably safe place for work by doing the necessary propping, the rule of non-liability if. the servant was engaged in creating the danger during the progress of the work, not being applicable.</p> <p>8. Trial — Instructions—Duty of Jury to Consider Together — Verdict Contrary to Instructions — New Trial. — Where there is a series of instructions presenting different theories of the case, it is the duty of the jury to consider all of the instructions together, and a verdict contrary to one instruction will not be ground for a new trial where there are other instructions authorizing the verdict, and it can not be said that the verdict is contrary to the instructions considered as a whole.</p>

<p>Insurance — Life Insurance — Settlement—Action to Set Aside.— Where an insured person paid, and the company tentatively received his premium after his policy had lapsed for the nonpayment of premiums when due, hut he refused to furnish a physician’s certificate showing he was in good health, which the policy required as a condition to reinstatement, and notified the company that r'ather than he examined. it could keep the policy, whereupon the company returned the ■ premiums to the insured and he made no claim against the company during his life, his personal representative will not he permitted to set aside the settlement after his death.</p>

<p>1. ’ Bankruptcy — Attaching Creditor — When Trustee Not Entitled to Recover. — A trustee in bankruptcy is not- entitled to a recovery under sub-sections 67c and 67f of the Bankruptcy Act of 1898, s amended by Act 1910, in a case where a creditor has sued out an attachment, reduced it to judgment, and received payment of his debt before the institution of the proceedings in bankruptcy, provided the debtor was not insolvent at the time of the suing out of the attachment even though the same be done within four months next before the filing of the petition in bankruptcy.</p> <p>2. Bankruptcy — Pleading—Demurrer.—Where the petition in an action alleges insolvency and a fraudulent attempt on the part of the defendant to obtain a preference and the fraudulent acquiescence of the debtor to permit such preference, and these allegations be traversed by answer, h. general demurrer to the answer should be overruled and this notwithstanding the answer admits that the money was obtained within the four months before the filing of the petition in bankruptcy.</p>

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

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

<p>■Sales — Evidence—Principal and Agent — Instructions.—In an action for breach of an alleged contract to deliver empty barrels, which defendant denied having executed, the broker who negotiated the trade having testified it was made by the defendant through one D., and D. having testified for the defendant admitting the negotiations with the broker and denying the terms but not his authority to act' for defendant, an instruction was authorized which assumed the agency of D. and submitted to the jury simply the issue as to the terms, which was the only issue upon the evidence.</p>

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

<p>1, Appeal and Error — Cross-Appeal—Motion, to Obtain — Time.— Under section 755, Civil Code, a cross-appeal is granted as a matter of right to an appellee, but only upon motion therefor; and the order granting the cross-appeal must be entered upon the records of the Court of Appeals before final submission.</p> <p>2. Appeal and Error — Review—Cross-Appeal.—A judgment dismissing appellee’s counter-claim for damages for alleged negligence can not be reviewed, no cross-appeal having been taken.</p> <p>3. Homestead — Abandonment—Intent.—The intent to abandon a homestead will not be conclusively presumed from the fact that the owner voted in a precinct other than that in which the homestead is located, nor from the fact of protracted absence therefrom, these being merely circumstances to be considered in connection with other proof in determining the question of abandonment.</p> <p>4. Homestead — Liabilities Enforcible Against. — Where the owner of a homestead sells it and with the proceeds buys another, the right to a homestead in the second tract is good against intervening creditors, if the first homestead had not theretofore been abandoned.</p> <p>B. Homestead — Abandonment — Evidence — Separate Property of Wife. — (Pacts held insufficient to show abandonment of a homestead, where the owner was absent therefrom for about twelve years; and sufficient to show that the excess in the purchase price of a homestead in a second tract over the proceeds of sale of the former homestead'was represented by investment of the separate property of the wife.</p>

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

<p>1. Railroads — Bridge Company — Crossing Accident — Negligence-Question for Jury. — In an action for personal injuries alleged to have resulted from contact with a crossing gate maintained hy a bridge company, evidence examined and held to make a question for the jury whether defendant’s negligence was the proximate cause of plaintiff’s injuries.</p> <p>2. Trial — Instructions—Abstract Instructions — Error.—In an action for personal injuries alleged to have been caused by contact with a crossing gate, an instruction that it was the duty of the defendant’s gateman to exercise and observe such care in the management of said gates as was reasonably necessary to the safety of the public, including the plaintiff, in the lawful use of the highways, was erroneous in that it was so general and abstract in form as to make the jury the judges of both the law and the facts.</p> <p>3. Railroads — Bridge Company — Crossing Gates — Lights.—Where a bridge company maintained gates over a grade crossing, it was not required to have a light upon the arm of each gate. All that was necessary was to have sufficient lights either upon the arms of the gates or elsewhere to enable a person exercising ordinary care for his own safety to see the arm of the gate.</p> <p>4. Railroads — Bridge Company — Crossing Gates — Warning.—It is the duty of a bridge company maintaining crossing gates to give reasonable warning by sounding the gong of its purpose to lower the gate.</p> <p>5. Railroads — Bridge Company — Crossing Gates — Traveler—Duties.— It is the duty of a traveler in approaching a grade crossing where gates are maintained to exercise ordinary care to discover whether, the arms of the gates are down or are being lowered, and to keep out of their way.</p>

<p>1. Railroads — Injury to One Using Track — Ordinary Care — Instructions. — Plaintiff’s decedent w'as a section hand and lie and a comipanion were riding on a hand car which was propelled by them and in their charge, going to their homes after a day’s work, which use of the hand car was with the permission of the section foreman. A train approaching from the rear collided with the hand c'ar, killing plaintiff’s decedent and injuring his companion. The company was sued under a claim that it was negligent as to decedent in failing to signal for a public crossing to the rear and about a half mile distant, and that it failed to have its engine equipped with a head light. Held, that to one thus using its track the agents and servants in charge of the train owed no duty except to exercise ordinary care to avoid injuring him (after his peril was discovered, and that the record shows that such care was exercised after the discovery of the peril, al'l of which authorized a peremptory instruction in favor of defendant.</p> <p>2. Railroads — Use of Private Crossings. — The rule that one using a (private crossing near a public one is entitled to rely upon signals for the public crossing, as was his custom, commonly known as the doctrine of the C'ahill case, applies only to one using the private crossing for the purpose of crossing the railroad track, and not to one using the railroad track itself.</p>

<p>1. Prohibition — Control over Inferior Courts. — The authority of this court to exercise the power of control over inferior ones, as conferred by section 110 of the Constitutior, will not be exercised except where the inferior court is proceeding in a matter without jurisdiction, or if within its jurisdiction and the circumstances are exceptional and unusual and its action would produce irreparable and injurious consequences and there is no other adequate remedy. .</p> <p>2. Prohibition — Appeal and Error — Remedies.—If the right of appeal exists it will be regarded as an adequate remedy, although upon . reversal, because of improper service upon defendant, he will be before the court for all purposes of the action upon a return of the case.</p>

<p>1. Railroads — Federal Employers’ Liability Act. — An employee of a railroad company cannot recover damages for injuries sustained under the Federal Employers Liability Act unless he was engaged in performing a service in aid of interstate commerce, or so closely related to it as to be practically a part of it.</p> <p>2. Railroads — Federal Employers' Liability Act — When Employee is Engaged in Interstate Commerce. — An employee of a railroad engaged in interstate commerce is himself engaged in such commerce if he is assisting in strengthening or making more secure an embankment over which the interstate' trains run.</p> <p>3. Railroads — Federal Employers’ Liability Act — Instructions on Measure of Damages. — It is not indispensable that an instruction, on the measure of damages, should limit the jury to finding the present cash value of the assessment, and especially is this so where the railroad company fails to offer an appropriate instruction on this subject.</p>

<p>1. Quieting Title — Action—Legal Title and Possession. — In an action under section 11 of the Kentucky Statutes to quiet title, the plaintiff must have both the legal title 'and the possession.</p> <p>2. Quieting Title — Action—Character of Title Necessary. — In an action to quiet title under section 11 of the Statutes, it is not essential that the plaintiff should have a paper title, he need only' hav.e such title as would give him the right to the possession of the land, and this character of title may rest on adverse possession or on a sufficient parol agreement by which the party, claiming the land has the right to its possession.</p> <p>3. Quieting Title — Action—Character of Possession Necessary. — - The plaintiff in a suit to quiet title need not ,be in the actual, physical possession of the particular land the title to which he' wants quieted if the land to which he desires title quieted is a part of another adjacent piece of land that he is in actual possession of, and both pieces are claimed by him to a marked boundary surrounding both.</p> <p>4. Frauds — Statute of — Parol Agreement as to Division Line. — Where there is a bona fide dispute between two adjoining landowners as to the location of the line between their lands, although one of them may have the senior and the other the junior title, and although the lines of the junior title may call for the lines of the senior title, and this dispute is settled by the establishment in' parol of an agreed line, this parol agreement will be binding . and the agreed line will take the place of the original line.-</p> <p>B. Frauds, Statute of — Parol Agreement as to Division Line — Limi-' tation. — Where an Agreed and marked line is established by parol it is not necessary to the validity of the line that both parties should acquiesce in it for fifteen years. An oral agreement fixing the boundary lines will be enforced if the parties have marked and recognized the line, and treated it as the true division, although it has not been so recognized for fifteen years.</p>

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

<p>1. Negligence — Failure to Perform Duty. — Negligence being the failure to perform a duty, there can be no negligence where there is no duty.</p> <p>2. Railroads — Licensees—Lookout Duty. — A railroad company owes a licensee upon its tracks no duty except to exercise ordinary care for hi? safety after his presence upon the track has been discovered, unless the company owes him a lookout duty.</p> <p>3. Railroads — Lookout Duty. — A lookout duty arises only where the public generally, with the knowledge and acquiescence of the railroad company, have continuously used its tracks for such a period of time that the presence of persons upon the track where it is so used ought reasonably to be anticipated.</p> <p>4. Railroads. — Where the public generally with the knowledge and acquiescence of the railroad company have continuously used the tracks for such a period of time that the presence of persons on the track where it is so used ought reasonably to be anticipated, the company owes persons thus using its track the duty to give warning of the approach of its trains, to keep a lookout, and to operate its trains at such a speed as may enable the engineer to stop it before injury has been inflicted.</p> <p>6. Railroads — Operation—Speed of Trains — Negligence.—In the absence of a prohibitory statute or ordinance a railroad company may, ordinarily, run its trains at such speed as its ?ees fit, and a charge of negligence cannot be predicated on the speed at which a train is run unless there are attendant circumstances which make such speed negligence.</p> <p>6. Railroads — Private Crossings — Rule as to Use. — The rule that a person about to use a private crossing is entitled to rely upon and have the benefit of signals usually given for a nearby public crossing, is confined in its application to those persons who used the crossing, and does not extend to persons using the track.</p> <p>7. Railroads. — A railroad company owes no duty to an employee while riding upon a motor car or tricycle on the track, in the country, until his presence upon the track is observed by those in charge of the train.</p>

<p>1. Contracts — Ambiguity—Parol Evidence. — Ambiguous and uncertain expressions in the written evidence of a contract may be explained by parol or written evidence, to the end that the true meaning of the contract may be ascertained, without a plea of fraud or mistake.</p> <p>2. Contracts — Writings Not Considered Part of. — Writings, although between the same parties and relating to the same subject matter, and executed near the same time, are not considered as a part of the contract, where the negotiations are finally merged into a written agreement and subscribed by all of the parties.</p> <p>3. Attorney and Client — Dissolution of Partnership — Contracts.— The voluntary dissolution of a partnership, to practice law, does not relieve either partner from the obligations of a contract with a client, which had theretofore been entered into by the partnership.</p> <p>4. Attorney and Client — Contract Made With Partnership — Survivor. —The contract, of a single lawyer to prosecute or defend a suit terminates at his death, but, a similar contract made with a ■partnership, for the practice of law, is different, in that the. death of one partner does not relieve the survivor from his obligation to perform the partnership contract, and, although the client may treat the contract as ended, being liable to the partnership for its services, as upon a quantum meruit, if he accepts the services of the surviving partner in lieu of the partnership, or agrees or acquiesces in the survivor performing the contract in lieu of the partnership, the contract is not terminated.</p> <p>6. Attorney and Client — Termination of Employment. — At the common law and at the present time, the employment of an attorney •to prosecute or defend an action terminates with a final judgment in the court, in which the action is pending, and the attorney can not take an appeal from the judgment without new employment or the consent of his client, but this rule would not apply when the terms of the original employment authorized the taking of an appeal or other proper step to protect the client’s rights.</p>

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

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

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

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

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

<p>1. Municipal Corporations — Contracts for Street Improvement. — A contract for the improvement of a street made between the mayor of a city and the contractor is enforcible, as the mayor in cases of this sort makes the contract in behalf of the city.</p> <p>2. Municipal Corporations — Street Improvement. — Ky. Statutes, sec* tions 3453 and 3458, when taken together, mean that the defense that the work was not done according to contract shall not exempt the property from liability, but that the court trying the case shall render such judgment against the property as will do complete justice to the parties.</p> <p>8. Municipal Corporations — Street Improvement — Contracts—Repairs —A contract which obligates the contractor to keep the street in repair for five years contemplates such repairs only as are made necessary by the defectiveness of the work or of the materials, and not from unexpected causes as fire, flood or earthquake.</p> <p>4. Municipal Corporations — Street Improvement — Liens Upon Abutting Property. — In suits to enforce liens upon abutting property for street improvements no personal judgment can be obtained against the property owner, and a revivor in the name of the heirs of the owner who died after the institution of the suit is sufficient, and an objection that the suit was not revived in the name of the personal representative of the owner is not available.</p> <p>5. Municipal Corporations — Street Improvement — Contractor.—If an improvement is done in accordance with the statutory authority as interpreted by this court, the contractor will not be liable for the consequential damages which may be done to the abutting property because of the making of the improvement according to the plans adopted and accepted by the city council, and a counterclaim against him in a suit to enforce a lien against abutting property based upon such consequential damages was properly disallowed. Nor can such counter-claim in that character of suit be maintained against the municipality if the suit was brought by it, nor can it be brought into the suit by cross-petition in an effort to assert such counter-claim.</p> <p>6. Municipal Corporations — Street Improvement — Liability of Contractor. — The rule just announced would not apply if the city, not as a municipality, but as assignee of the contractor, should bring the suit, for in that case any counter-claim which might be asserted against the contractor may be asserted against the city as his assignee; nor does the rule prevent the property owner from recovering consequential damages of the municipality in an independent suit brought within the proper time.</p>

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

<p>1. Municipal Corporations — Construction of Charter — Officers—Selection of Police Judge. — Under sec. 3510, Ky. Stats., in fourth class cities, the judge of the police court shall be elected by the people or appointed by the board of council, as may be determined by ordinance enacted at least sixty days previous to any November election; and an ordinance providing for appointment controls until repealed and need not be re-enacted in each year that a police judge is to be chosen.</p> <p>2. Officers — Action for Possession of Office — Sufficiency of Petition. —In an action for possession of the office of police judge of a fourth class city and to oust the incumbent, the petition, failing to show title of plaintiff to the office, was insufficient and a demurrer thereto was properly sustained.</p>

<p>1. Elections —Contest — Pleading. — In an election contest where fraudulent and illegal votes are east and which, the contestant desires to purge, it is necessary for the plaintiff to state in his pleading the names of the persons who cast such illegal votes, and upon the trial the investigation of no votes except those which he might name can be made. When plaintiff fails to point out the names of such voters and there is a motion made for the pleading to be made more specific it should be sustained by the court.</p> <p>2. Elections — Contest—Pleading.—Where the record in an election contest shows that thene has been such fraud, intimidation, bribery or violence in the conduct of the election that the court can not determine with any degree of accuracy the number of legal votes either party received' or the number of legal votes that were cast, it is the duty of the court to declare in its judgment that no legal election was held if such conditions existed throughout the entire territory covered by the election, but if they existed in only one precinct the court may disregard that precinct and adjudge the election to the one receiving the highest number of votes cast in all the other precincts in which the election was held.</p>

<p>1. Railroads — Location of Privy — Question for Jury. — A privy, with separate compartments for the sexes and conceded to be suitable, placed in the rear and within fifty or sixty feet' of a depot, held so located as to provide patrons of the railroad toilet facilities in accord with the best in common use in the vicinity in which the depot is located, and t'o satisfy the requirements of sec. 772, Ky. Stats.; and it was error to submit to the jury the question of its suitable and convenient location.</p> <p>2. Railroads — Maintenance of Privies — Locking Privy. — Railroads may keep the privies, they are required to maintain, locked to insure cleanliness, but the keys thereto must be accessible to patrons at all such times as they have the right to be at the station.</p> <p>8. Railroads — Locking of Privies — Question for Jury. — In a prosecution of a railroad for failing to provide a suitable and convenient privy, evidence as to when the privy was locked and of the accessibility to patrons of the keys thereto held insufficient to take the question to the jury.</p>

<p>1. Appeal and Error — Removal of Causes — Insufficiency’ of Bond'— Insufficiency of Verification of Petition for Removal — Necessity of Specific Objection — Waiver—Order of Removal — Reversal.—■ Tbe insufficiency of the bond and of the verification of the petition for removal cannot be raised by general demurrer to the petition for removal, but only by specific objection pointing out wherein the bond and verification were defective, and where such defects are not specifically pointed out in the circuit court, they will be deemed to have been waived and will furnish no ground for a reversal of the order of removal.</p> <p>2. Master and Servant — Action for Death — Foreign Corporation— Joinder of Resident Defendants — Sufficiency of Petition as to • Resident Defendants. — Where in an "action for death alleged to have been caused by the joint and concurrent negligence of a nonresident corporation and certain resident servants, the only allegation of negligence respecting the local servants was that they carelessly and negligently failed to supply a sufficient number of men to do the work, the petition did not state a cause of action against the local defendants, it not being alleged that they had authority to employ other men or that other men employed by the master were available, for the service and that it was the duty of the local defendants to see that a sufficient number of men were engaged in the work.</p> <p>3. Removal of Causes — Diversity of Citizenship — Foreign Corporation — Joinder of Resident Servants — Insufficiency of Petition as . to Local Defendants — Effect.—Where in an action for death against a foreign corporation and certain resident servants no cause of action was stated against the local defendants, t'he cause was properly removed.</p>

<p>1. Removal of Causes — Insufficient Execution of Bond — How Question May be Raised. — Tbe insufficient execution of a bond for removal can be raised in tbe state court by a general demurrer to tbe petition for removal, but only by a specific objection pointing out wherein tbe bond was defective.</p> <p>2. Appeal and Error — Removal of Causes — Defective Bond — Failure to Make Specific Objection — Waiver—Reversal.—Where tbe question of tbe insufficient execution of a bond for removal is not raised by specific objection, tbe defect in tbe bond, if any, will be deemed to have been waived and can not be relied upon in the court of appeals as a ground for reversing the order of removal.</p> <p>3. Removal of Causes — Verification of Petition for Removal — How Want of Proper Verification May be Raised. — Want of proper verification of the petition for removal can not he raised hy general demurrer to the petition, but only by motion or other form of specific objection.</p> <p>4. Appeal and Error — Removal of Causes — Want of Proper Verification of Petition for Removal — Waiver—-Reversal.—Where want of proper verification of the petition for removal is not raised by motion or other form of specific objection, any defect in the verification will be deemed to have been waived and will not furnish ground for a reversal of the order of removal.</p>