Volume 181 — Kentucky Reports

<p>Dismissal and Non-Suit—Filing Away of Case—Want of Prosecution.—Under a rule of court adopted pursuant to section 980 of the Kentucky Statutes, authorizing the court to file away a case which had remained on the rule docket for one year without any step having been taken to indicate an intention to prosecute the action, it was error for" the circuit court to- dismiss the action for want of prosecution.</p>

<p>1. Intoxicating Liquors—Presence and Use of at Elections.—The purpose of the legislature in enacting section 1575 of the Kentucky Statutes making it unlawful for any person to sell, loan, give or furnish intoxicating liquor to any person in any. precinct, town, city or county upon the day of any election, was to prevent the presence and use of liquor at elections, and the statute has no application in a district where no election is being held.</p> <p>2. Intoxicating Liquors—Shipment of—Use of Liquors at Elections. —Where a common carrier by express carried a shipment of liquor from a licensed dealer and delivered it to the purchaser in a school sub-district where no election was being held, although an election was held on that day in a different school sub-district embraced within the precinct, there was no violation of section 1575 of the Kentucky Statutes prohibiting the sale, loan, gift or furnishing of liquor in any precinct on the day of any general or primary election therein.</p>

<p>1. Commerce—Interstate Commerce.—One engaged in handling steel’ rails which are to he used in repairing the track of an interstate railroad is engaged in interstate commerce.</p> <p>2. Master and Servant—Employers’ Liability Act—Both the employee and the employer must be engaged in interstate commerce in order that the employee may recover for personal injury under the Federal Employers’ Liability Act, but it is not necessary that the employee, whose negligence is the prime cause of the injury, should also be engaged in interstate commerce.</p> <p>3. Master and Servant—Employers’ Liability Act—Evidence.— Where the injured employee instituted his action under the Federal Employers’ Liability Act, but the evidence tends to show that he was engaged in intrastate commerce only, the defendant company is entitled to a peremptory instruction at the conclusion of plaintiff’s evidence, but the rule is otherwise where the evidence is conflicting, part of it tending to show that plaintiff’s work was only in aid of interstate commerce, the question is one to be determined by a jury.</p>

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

<p>1. Elections—Schools and School Districts—Trustee—Contest—Vitiation by .Ftaud, Intimidation or Other Illegality—Effect.—An election affected by fraud, intimidation or other illegality should be set aside only when it can not be determined by any reasonable method on which side a majority of the legal votes were cast.</p> <p>2. Elections—Schools and School Districts—Trustee—Vitiation by Fraud, Intimidation or Other Illegality—Effect.—Where, in a contested election for the office of school trustee, it appeared that after eliminating all illegal votes and giving the contestant the benefit of one vote which it is claimed would have been cast for him had not the polls been closed too soon, the contestee received twenty-seven votes and the contestant twenty-three votes, the election should not have been set aside, but the contestee should have been declared elected.</p>

<p>Appeal and Error—Parties.—An appeal to the Court of Appeals will not lie from a judgment of the circuit court against one who is not a party to the proceeding in which the judgment was rendered.</p>

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

<p>1. Infants—Action—Next Friend—Courts.—The right of a next friend to .decide for an infant upon the policy of bringing suit is subject always to the controlling power of the court.</p> <p>2. Infants—Action—Courts.—The court will not decide, but leave to the infant to determine upon becoming of age, the policy of " bringing suit where the interests of the infants will not be prejudiced by the delay.</p> <p>3. Wills—Contest—Infants.—The contest of a will by an infant devisee, by next friend, was properly dismissed, the will providing for a forfeiture of the legacies of those who directly or indirectly attempt to set aside the will, and the validity or invalidity of a non-contest clause in a will being an open question in this state.</p>

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

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

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

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

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

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

<p>1. Corporations—Purchase and Sale of Property hy.—A corporation has the same right to sell its property as a natural person has, and the purchaser of the property of a corporation occupies towards the creditors of the selling corporation, the same attitude as the purchaser from an individual would occupy towards the creditors of the individual.</p> <p>2. ' Corporations—When Purchasing Corporation Liable for Debts of Selling Corporation.—If a purchasing corporation merely becomes the owner of all the stock in the selling corporation by payment of the purchase price to the stockholders, the purchasing corporation will be liable for the indebtedness of the selling corporation.</p> <p>3. Corporations—When Purchasing Corporation Not Liable for Debts of Selling Corporation.-—When a corporation purchases all the assets and property of the selling corporation and pays the purchase price t.o it, and the transaction is a bona fide one, it will not be liable for the indebtness of the selling corporation.</p> <p>4. Corporations—Pacts Showing Purchasing Corporation to be Liable for Debts of Selling Corporation.—Where a corporation purchased the property of another corporation for a specified sum of money, and paid this money to the selling corporation under an agreement that it should be, at once, distributed among the stockholders of the selling corporation, and the purchasing corporation became the owner of the stock and elected a board of directors friendly to it,,.and this board of directors, several months afterwards, conveyed to it, without consideration, all the property and assets of the selling corporation, the purchasing corporation became liable for the debts of the selling corporation.</p>

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

<p>1. Torts—Joint Tort Feasors—Liability of.—Joint tort feasors are individually and collectively liable for the tort and may be sued either separately or jointly and the full amount of damages recovered against either one or more, or all of them.</p> <p>2. Torts—Satisfaction by One Tort Feasor—When Release of Others.' —Where a person'who has been injured by .the act of joint tort feasors receives satisfaction for the injury done him from one cr more of them, he is barred from proceeding against any of the others, but when it clearly appears that the payment by one of the joint tort feasors was only in part satisfaction of the claim against them, and only a release of the one making the payment, the satisfaction received from this one will not be deemed a satisfaction of the cause of action or claim for damages against the others arising out of the joint wrongdoing.</p>

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

<p>1. Corporations—Knowledge oí Officer Acting in Own Interest—Rule. —The general rule which does not impute to a corporation the knowledge of its officer when the officer is acting in his own interest, does not apbly when the same officer acts for two corporations in a transaction between them; in such a case the officer’s knowledge will be imputed to each corporation.</p> <p>2. Usury—Merger of Banks—Purging Note of.—Where a state, bank holding a note embracing usury was subsequently merged into a national bank, the latter taking the assets and assuming the liabilities of the former, a single officer of the two banks representing each in the transfer of its assets, the national bank took the note containing the usury subject to the right of the maker to purge it of the usury.</p> <p>3. Appeal and Error—Finding of Chancellor.—Where the proof is contradictory and the mind is left in doubt upon a question of fact, the finding of the chancellor will not be disturbed.</p>

<p>1. Waters and Water Courses—Surface Waters—Actions—Damages. —Of two adjoining lots owned by different proprietors, the lower is subject to the servitude of receiving the natural and ordinary flow of surface water from the upper estate, and the lower proprietor can not complain that the surface water from the upper estate is allowed to flow in the ordinary and usual manner on to his property.</p> <p>2. Waters and Water Courses—Surface Waters—Easements.—Where one purchases a low lot lying below and adjacent to an improved street, and which lot is at the time subject to the flow of surface water from the adjoining property and street, the purchaser is not in -position to complain of such flow even though the water be gathered in drain or sewer pipes and carried under the embankment of the street on to the lower lot, after the easement thus enjoyed has continued for more than fifteen years.</p> <p>3. Waters and Water Courses—Surface Waters—Damages.—One who erects his house on a low lot on to which the surface water from surrounding property, owing to its topography, usually and naturally flows and gathers, can not recover of a city, damages for injury to the house thus erected, by water, unless the established grade of the street has been so altered or changed as to deflect the flow of surface water on to the complainant’s property in greater volume or in different course and manner from the usual and ordinary flow.</p>

<p>Railroads—Duty to Keep Premises in Safe Condition.'—Two railroad companies using the same station facilities are both under the duty of beeping the premises in a safe condition and free from obstructions or dangerous instrumentalities; and each company is. liable to its own passengers for injuries caused by the negligence of the other company.</p>

<p>1. Railroads—Death, of Person on Track—Licensee—Trespasser— Lookout Duty—Evidence.—Evidence that occasionally a. person would cross the frack at the place of the accident was not sufficient to establish the duty of maintaining a lookout although the accident occurred in an incorporated town of from sixty to seventy-five inhabitants.</p> <p>2. Railroads—Death of Person on Track—Trespasser.—One who sits down upon a railroad track and goes to sleep or becomes unconscious is a trespasser though at a point where persons are accustomed to cross in large numbers.</p> <p>3. Railroads—Death of Person on Track—Negligence After Discovery of Peril—Evidence—Sufficiency.—In an action for the death of one killed on a railroad track, evidence of the failure of the engineer to exercise ordinary care to avoid injuring the deceased after his peril was discovered, held insufficient to take the case to the jury.</p>

<p>1. Divorce—Review.:—The Court of Appeals can not reverse a judgment, which grants a divorce, hut, it may look into the record to determine whether the divorce should have been granted, to determine the right of the wife to alimony.</p> <p>2. Divorce—Alimony.—In all cases where the husband obtains a divorce without the fault of the wife, she is entitled to alimony, and this includes the state of case where the divorce was erroneously granted to the husband and where the divorce should have been granted to the wife.</p> <p>3. Divorce—Concealment of Fact of Previous Unchastity.—A concealment by the wife, from the prospective husband, that, she had previously been unchaste, is not a fraud, which will vitiate the marriage or constitute a ground for divorce.</p> <p>4. Divorce—Bar.—Where the complainant has knowledge, at the time the marriage is contracted, of the cause of divorce, which he urges, it constitutes a bar to his action.</p> <p>5. Divorce—-Drunkenness of Wife.—The statute gives to' the husband the right to complain of drunkenness on the part of the wife, when he is not in like fault;</p> <p>6. Divorce—Evidence of Lewdness.—A charge of lewdness can not be substantiated by the proof of facts, which create a mere suspicion and which are harmless in themselves and do not necessarily indicate anything culpable.</p> <p>1. Divorce—Charge of Adultery or Lewdness—Witnesses.—Under section 2119, Kentucky Statutes, one witness, without any corroborating circumstances, is not sufficient to sustain a charge of adultery or lewdness.</p> <p>3. Divorce—Breach of Antenuptial Contract.—A breach of an ante-nuptial contract, to give the wife money or property,' does not constitute a ground of divorce on the part of the wife, in the absence of a statute authorizing it.</p> <p>9. Divorce—Unfounded Charge of Adultery.—Cruelty or settled aversion.—An unfounded'charge of adultery against-a wife does'not constitute cruelty or evidence from which a settled aversion may be inferred, unless it is made in bad faith and in the absence of reasonable grounds for believing its truth.</p> <p>10, Divorce—Alimony—Dower and Distributive Share.—Where a wife is entitled to a judgment from bed and board, she is entitled ordinarily to ahmony, only, during the life of the husband, but, where her right to dower and distributive share in the husband’s estate is barred by an erroneous judgment granting him a divorce from the bonds of matrimony, the value of her dower and distributive share, to which she would otherwise have been entitled, may be considered in determining the amount in alimony to which she is entitled.</p>

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

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

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

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

<p>Wills—Contest—Sufficiency of Evidence—Mental Incapacity— Undue Influence.—In a will contest, evidence of undue influence examined and held insufficient to take the case to the jury.</p>

<p>Infants—Infant’s Real Estate—Sale of Under Section 491 of tlie Code—Necessary Parties.—Where a testator devised a share of his estate to the children of his nephew and to their children for twenty-one years after the death of the first takers without making any disposition of the remainder, the remainder was undevised estate and passed, under the will, to the heirs at law of the testator, and they were necessary parties to a suit seeking a sale of the property under section 491 of the Code.</p>

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

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

<p>1. Taxation—Corporations and Corporate Property—Assessment— Omitted Property.—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 notwithstanding the omission to report the species of property, the board, from other sources of information, considered it in making its assessment.</p> <p>2. Taxation—-Corporations and Corporate Property.—-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>3. Taxation—Corporations and Corporate Property.—Under the provisions of sec. 4241 of the Kentucky Statutes it is competent in a suit by the Commonwealth in the name of a revenue agent to assess omitted intangible property of a corporation, the original assessment of which may have been made by any of the agencies provided for that purpose.</p> <p>4. Taxation—Assessment of Railroad Franchise.—A railroad company operating lines both in and out of the state should report the lines owned, operated, leased and controlled in the state, as well as out of the state, as provided by section 4079 of the Kentucky Statutes, and the board of valuation and assessment in assessing the franchise of such corporation and apportioning to Kentucky the amount upon which it may collect taxes shall take into consideration such owned, operated, leased and controlled lines.</p> <p>5. Taxation—Assessment of Railroad Franchise.—In order for a line of road to be a controlled one within the me’aning of the statute, the reporting company must own a controlling interest in its stock, since it would not be such a controlled line if the reporting company, in connection with another independent one, jointly own a controlling stock in the line reported through a business understanding or otherwise.</p> <p>6. Taxation—Assessment of Railroad Franchise.—A line which the reporting company may have' leased is none the less a leased line because another company might also own and exercise privileges over the leased line.</p> <p>7. Taxation—Assessment—Res Adjudicata.—The doctrine of res adjudicata applies in proceedings instituted by revenue agents for the assessment of omitted property with as much force as in any other character of suit, and when such a proceeding is tried out on its merits, the judgment will be a bar to any. other suit instituted by any other revenue agent for the same relief in that or any other county court.</p> <p>8. Taxation—Assessment of Omitted Property.—In this proceeding filed by a revenue agent in the Franklin circuit court to assess as alleged omitted intangible property against the corporate defendant, in which the defendant interposed for each of the four years involved pleas in bar—evidence examined and held the pleas sufficient for three of the years but insufficient as to one of them.</p>

<p>1. Criminal Law—Instructions.—While a trial court should in every felony case submit its instructions to the jury in writing, under section 225 of the Criminal Code, yet defendant may, by agreement, waive the Code provision by consenting that instructions be oral, and such an agreement will be .binding on him.</p> <p>2. Criminal Law—Instructions.—When, by agreement of counsel for both sides, the court orally instructs the jury as to the law of the case, and the instructions thus given are taken in shorthand by the court reporter and immediately thereafter extended into typewriting and delivered to the jury while it is considering its verdict, and before a verdict is reached, section 225 of the Criminal Code is not violated.</p> <p>3. Criminal Law—Evidence.—Evidence examined and held to sustain the verdict.</p>

<p>1. Taxation—Delinquent Taxes—Equitable Action to Recoyer—Attachment.—On a return of “no property found” on a tax warrant issued for delinquent taxes the sheriff may, by virtue of section 4169 of the Kentucky Statutes, institute an equitable action in the name of the Commonwealth in any court of competent jurisdiction to subject the'choses in action or other equitable estate of the delinquent to the payment of the taxes; and in such an action attachment may issue and other proceedings be taken as are authorized on a return of “no property found” on an execution in favor of an individual.</p> <p>2. Taxation—Shares of Corporate Stock—Assessment.—Where a stockholder owning all the shares of a corporation appropriated all the assets of the corporation to his own use, without paying the corporation anything therefor, he will be required to return the property so received by him or its value to the extent that may be necessary for the payment of taxes due upon the property of the corporation, and a personal judgment therefor may be taken against him.</p>

<p>1. Appeal and Error—Daw of the Case.—Where the proof is substantially the same upon the second trial as it was upon the first, the opinion of the Court of Appeals on an appeal from the first judgment states the law of the case for the second trial.</p> <p>2. Criminal Law—Bloodhounds—Evidence as to Training.—Testimony as to trailing by bloodhounds of one charged with crime, may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime, only after it has been shown by some one having a personal knowledge of the facts, (a) that the dog in question is of pure blood and of a stock characterized by acuteness of scent and power of discrimination; (b) is itself possessed of these qualities'and has been tr'ained or tested in the tracking of human beings; and (c) that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted and at the point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated had. been made by him.</p> <p>3. Criminal Law—Verdict—Signing Verdict.—Where an unsigned verdict was returned and the jury was discharged, but did not leave the court room, and the defect whs discovered after the jury had begun the trial of another case, the trial court properly permitted one of the jurors to sign the verdict, and upon the jury being polled in the presence of the accused to reaffirm its verdict as originally returned.</p> <p>4. Criminal Law—Former Conviction—How Shown.—A former' conviction of a felony must be shown by the introduction in evidence of the indictment, verdict, judgment and sentence of the former trial, or certified copies thereof,</p> <p>6. Criminal Law—Third Convidtion for Felony1—Statute.—Section 1130 of the Kentucky Statutes providing that every person convicted a third time of felony shall be confined in the penitentiary during his life, does not require that the first and second felonies of which the defendant was convicted should be'the same character of felony as that for which he was finally convicted; the life sentence may be imposed although the first and second convictions were for felonies different in character from that which was the basis of the third conviction.</p> <p>6. Continuance—Discretion of Court.—The granting of a continuance is largely left to the sound discretion of the trial court, and unless that discretion is abused it will not be disturbed.</p> <p>7. Trial—Instructions.—Instructions that were approved upon the first appeal of a case will he treated as the law of the case . for subsequent trials under substantially the same facts.</p>

<p>Railroads—Failure to Equip Engine With. Headlight—Negligence.—A railroad company is under the duty to one of its employees who is a licensee upon its track in running its trains in the night time to have its engine equipped with a headlight and to have it burning so that its licensed employees may have the means of discovering the approach of the train and to keep out of its way, and a failure on the part of the company to so equip its engine is negligence toward its employee, for which, if he is injured, he may maintain an action for damages.</p>

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

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

<p>1. Criminal L’aw—Appeal from Judgment of Conviction in Police Court—Supersedeas.'—When an appeal is taken to the circuit court from a. judgment of conviction in a police court and the judgment is superseded, the efficacy of the judgment of conviction is suspended only; the supersedeas does not, like a reversal, annul the judgment itself.</p> <p>2. Criminal Law—Appeal and Error—Dismissed Settled—Meaning of Order.—Where a defendant was convicted of a misdemeanor in a police court and prosecuted an appeal to the circuit court, and an order was entered in the circuit court dismissing the case “settled” on the motion of appellant, the order meant that appellant had paid or satisfied the judgment of the police court.</p> <p>3. Trial—Extrinsic Evidence' in Aid of Record.—The rule against rparol evidence does not preclude the reception of extrinsic evidence in aid of a record, or to explain an apparent discrepancy, or an immaterial variance, or to dispel obscurity or ambiguity, in case the terms of a judgment are of doubtful meaning.</p> <p>4. Evidence—Case “Dismissed Settled”—Parol Proof.---When the final judgment showed that a case was “dismissed settled”, parol proof is admissible to show what constituted the settlement.</p>

<p>1. Criminal Law—Continuance—Affidavits.—Where an application for a continuance because of absence of witnesses is supported only by the affidavit of counsel, and not by any affidavit of the litigant, and the affidavit of counsel fails to disclose either the names of the witnesses, what they would testify, or whether they were within the jurisdiction of the court, the trial judge did not abuse a sound discretion in overruling the motion, especially since it did not appear that the applicant was deprived of the testimony of any material witness upon his trial.</p> <p>2. Witnesses—Mental Capacity—Question for Court.—Whether a witness is mentally competent to testify is a question to be determined by the court, but the credibility of the testimony given by the witness is exclusively with the jury, an,d if the witness is found to be able to understand what he is saying and to possess sufficient mental capacity to clearly narrate facts observed by him, and to understand the obligations of an oath, the court' would be authorized to admit his testimony to go to the jury.</p> <p>3. Criminal Law—Instructions—-Competency of Witnesses—Waiver. —While it is t'he duty of the trial court to instruct or admonish the jury, the purpose for which certain testimony is heard when it is directed to a collateral issue this rule does not apply so as to require the court to instruct the jury upon the competency of witnesses or the credibility of their testimony, and if t'he objection is to the competency of witnesses the question must be raised by an objection to the testimony, or by a motion to exclude it, and if neither is made, the objection will be considered waived.</p> <p>4. Criminal Law—Instructions.—The rule in criminal practice requiring the court to instruct the jury upon the whole law of the ' case does not apply to, or reach the error of the admission of incompetent testimony.</p>

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

<p>1. Statutes—Section 1596a, Sub-section 12—Construction—Appeal and Error.—In construing section 1596'a, sub-section 12, Ky. Stat., where it provides, that, one, appealing from a judgment of the circuit court to the Court of Appeals, shall execute a bond .“to the clerk,” hold that the preposition “to” was inadvertently or carelessly used, and that the word “before” should be substituted for the word “to.”</p> <p>2. Statutes—Construction.—In the construction of a statute, where the object of the legislature is plain and its intent can be ascertained with certainty from the entire context, and it is apparent therefrom, that a word has been inadvertently or carelessly used, the word intended will be substituted for the one used, if it is necessary to give effect to the'purpose and intent of the legislature, as gathered from the entire statute.</p> <p>3. Appe'al and Error—Refusal to Permit Filing of Pleading.—The action of the trial court in refusing to allow a pleading to be filed, which is presented in term time, can not be reviewed, unless the pleading is identified by a bill of exceptions or an order of the court and made a part of the record, otherwise, it is private paper in the hands of the party.</p> <p>4. Pleading—Filing Answer in Vacation—Demurrer—Notice.—A party, who files an answer in vacation, may file a demurrer to the petition, with, it, and the plaintiff may during that vacation file an amended petition with the clerk to correct the errors in his petition, but he must before doing so give to the defendant notice of his intention to do so, and if he fails to give such notice, the court should strike it from the files upon motion of the defendant, or else the provisions of section 109, Civil Code, would be nullified.</p> <p>6. Pleading—When Becomes Part of Record—Trial.—A paper filed with the clerk, whenever it is permissible to do so, becomes a part of the record, but to lodge a pleading with the clerk when there is no authority to do so or without having taken the necessary steps to make the filing lawful, although marked filed by the clerk, it does not become properly a part of the record, unless the parties treat it as having been filed and permit the court to act upon it as such without objection at the trial.</p> <p>6. Elections—Contest—Pleading.—A contestant, in a contest of an election, may file an amended petition to cure a ground of contest defectively stated in his petition, but he can not set. up any new ground of contest in the amendment, and in the filing of same he is governed by the provisions of the Civil Code, in reference to amendments after the filing of the answer.</p> <p>7. Pleading—Motion to Strike From—Surplusage.—A motion to strike from a pleading can only be made to apply to surplusage, irrelevant or redundant matter therein, and can not be made to do the office of a demurrer, and it is error to strike from a pleading, upon such motion, facts, which constitute a necessary statement of the cause of action or defense relied upon, although the cause of action or defense is defectively stated. '</p> <p>8. Elections—Construction of Booths—Failure to Provide.—The requirements of section 1467, Ky. Stats., as to the construction of the booths to be used in voting are directory, and the failure, of the election officers to provide booths constructed in compliance with the requirements of the law, will not vitiate all the votes cast at the election, provided the mandatory requirement of the constitution, that the ballot be a secret one, is preserved.</p> <p>9. Statutes—Directory Statutes.—Statutes, which give directions for the accomplishment of an end, although the end to be accomplished is mandatory, are directory, and if the end is accomplished, it is not affected by a failure to comply with the directions for its accomplishment. '</p> <p>10. Elections—Corrupt Practices in—Statute Against.—The statute against corfupt practices in elections, so far as it requires the filing by a candidate of a pre-election, as well as a post election, statement of his expenditures, as a candidate, is a mandatory requirement and must be complied with or else his election is void, but the requirement as to the time of its filing is directory, and a substantial compliance with the statute, under the circumstances of each particular case, is sufficient.</p> <p>11. Elections—Registration.—Voters who reside in a city, wherein registration is required, can not legally vote without having registered, and without presenting or offering to present their certificates of registration to the election officers.</p> <p>12. Elections—Contest.—Where all the illegal votes cast in an election can be separated from the legal ones, and all deducted from the poll of the successful candidate, and he still has a majority of the votes cast and is elected, although to deduct them all from the votes received by him is manifestly unjust to him, when it is not shown that they all voted for him, his opponent is without right of complaint. .</p> <p>18. Elections—When Will Not be- Set Aside.—Elections held by and for all the people will not be set aside because of sporadic instances of bribery, with which the successful candidates are not shown to be connected and which have not affected the general result, as in every election some one may be expected to do something wrong, as in every other affair of life.</p>

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

<p>■ Taxation—Transfer Company Nlot Liable for Franchise Tax— While a transfer company is a common carrier it exercises no privilege which is not allowed by law to natural persons, for a person who ownes a wagon, hack or automobile can do precisely the same business that is conducted by a transfer company. The fact that its business gives it the character of a common carrier does not make it liable for a franchise tax.</p>

<p>1. Criminal Law—Accomplice—Status.—The status of a witness as an accomplice must be established by evidence of his criminal participation in the offense charged, his indictment jointly with the defendant being insufficient.</p> <p>2. Criminal Law—Evidence'—Accomplice.—A witness, jointly indicted with defendant for killing deceased, from whom defendant took by force the pistol with which he did the killing, who was then ignorant of defendant’s purpose in taking the pistol and could not have prevented him from taking it, was not an accomplice.</p> <p>3. Criminal Law—Trial—Instructions—Accomplice.—In ' a prosecution for homicide, the evidence failing to establish the status of a witness, jointly indicted with defendant, as an accomplice, it was not error to fail to instruct the jury that a conviction can not be had upon the uncorroborated testimony of an accomplice.</p>

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

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

<p>1. Railroads—Injury to Stock—Damages—Statutes—Construction.— Under section 809, Kentucky Statutes, where adjacent land owners have not' received compensation for fencing right of way, railroads, whether negligent or not, are liable for one-half the value of stock killed by its trains; and where they are negligent, they are liable for the full valúe of such stock, whether the right or way is enclosed or unenclosed or whether the land owner has been compensated for fencing right of way.</p> <p>2. Railroads—Injury to Stock—Lookout—Fences.—The servants of a railroad company in charge of its trains must maintain a lookout to avoid injury to stock upon its right of way, whether same be enclosed or unenclosed or whether the company has compensated the adjacent land owner for fencing the right of way.</p> <p>3. Railroads—Injury to Stock—Negligence—Question for Jury.—In an action against a railroad company for damages for killing a mule, evidence that it was found dead at the foot of a small embankment in a ditch by the side of the railroad track with Injuries to its head only was sufficient to submit the question of the negligence of the company to the jury.</p>

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

<p>1. Coroners—Expense of Inquests and Autopsies—Counties—Cities of Over Thirty Thousand Inhabitants—Liability—Construction of Statutes.—Sections 532, 1739 and 537a, Kentucky Statutes, regulating the fees of coroners and prescribing how the expense of making post-mortem examinations and chemical analyses shall be paid, construed and held that the expense of making post-mortem examinations and' chemical analyses whether of buried or unburied bodies, as well as the expense iof holding inquests on buried bodies, is payable by the county, but that the expense of holding inquests on. unburied bodies found in cities of over thirty thousand, is payable by the city.</p> <p>2. Coroners—Autopsies—Fees.—Since the ■ fees of a coroner are fixed by statute, the coroner under sections 532, and 537a, Kentucky Statutes, authorizing him to employ a competent physician to make a post-mortem examination and authorizing the county to pay the physician so employed a reasonable compensation for his services, can not employ himself to perform such services and thus collect the fee therefor in addition to .those allowed him by law.</p>

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

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

<p>Appeal and Error.—In this equity suit no substantial error prejudicial to' the appellant appears and the judgment is affirmed.</p>

<p>Larceny—Instructions.—Under an indictment for grand larceny the trial court should instruct the jury on the subject of petit larceny if there is any evidence tending to show that the value of the property stolen was less than $20; but if there is no evidence to show the value of the property to be under $20, such an instruction should not be given.</p>

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

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

<p>1. Continuance—Discretion of Court.—An application for a continuance is addressed to the sound discretion of tbe trial court.</p> <p>2. Continuance—Abandonment of Case by Counsel.—Where the attorney who prepares the petition abandons the practice- of law and goes into other business which calls him away from - the court house,' the client is entitled to a continuance if it appears that she did not know her attorney had abandoned her ease, and the time had not been so great as to raise such a presumption.</p> <p>d. Continuance—Evidence.—The facts considered and held thát the trial court erred in overruling the motion for continuance.</p>

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

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

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

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

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

<p>1. Taxation'—Charities—Exemptions.—Section 170 of the Constitution exempts from taxation, for general governmental purposes, not only the property of institutions of purely public charity, but also the activities of such institutions that are consistent with and in the furtherance of the purposes for which they were organized.</p> <p>2. Taxation—Occupation Tax.—The license fee prescribed by section 4224, Kentucky Statutes, for operating a restaurant is an occupation tax, and not a property tax, levied for revenue purposes.</p> <p>3. Taxation—Charities—Exemptions.—The Young Men’s Christian Association, agreed to be an institution of purely public charity and to operate a restaurant in connection with and as a part of its building at Corbin, Ky., and not for gain, held to be acting within the scope and in the furtherance of the legitimate purposes for which it was organized and to be exempt from the payment of a license tax, under section 4224, Kentucky Statutes, before engaging in the operation of the restaurant.</p>

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

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

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

<p>1. Descent and Distribution—Advancements—Purpose of Statute.— The purpose of section 1487 óf Kentucky Statutes relating to advancements by a parent to his child was to equalize children in the distribution of the parent’s estate when he did not dispose of his entire estate by will and has no application when the parent has disposed of his entire estate by will.</p> <p>2. Descent and Distribution—Advancements—Will of Parent Disposing of Entire Estate—Effect of—Gifts.—Where a will has been made by the parent disposing of his entire estate a child who has received advancements from his parent can only sustain his right to hold the property upon the theory that it was a gift and not an advancement.</p> <p>3. Descent and Distribution—Advancements—Gifts—Definition of— Difference Between.—An advancement as well as a gift must be irrevocable by the donor, but an advancement is a gift made with the intention that it shall be charged to the donee in the distribution of the donor’s estate, while a gift is made without any purpose that it shall be thereafter accounted for.</p> <p>4. Gifts—Inter Vivos—Definition of.—To constitute a gift inter vivos the thing given must be delivered to the donee and be irrevocable on the part of the donor.</p> <p>5. Descent and Distribution—Advancements—Gifts—Wills —A parent in his .will may control the matter of advancements and gifts, and although a thing may be given with the intention of making it an advancement, if the will disposes of the entire estate the donee can only hold it, if at all, as a gift.</p> <p>3. Contracts—Statute of Frauds—Validity of Parol Contract—Parol agreement to give property in consideration of the donee removing to an agreed place or to move from one state to another or to locate at an agreed place is enforcible.</p>

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

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

<p>1. Taxation—Manufacturing Machinery—Exemption.—Chapter 11, of the Acts of the Legislature, Special Session 1917, exempting from city taxation machinery and products in course of manufacture of persons, firms or corporations actually engaged in manufacturing, and their raw material actually on hand at their plants for the ' purpose of manufacture, contemplates manufacturing at the place of taxation; and the exemption will not be allowed, in the city where the raw material, consisting of tobacco, is collected, assorted and cured preparatory to shipping it to other cities for the purpose of there manufacturing chewing, smoking and other kinds of tobacco.</p> <p>2. Taxation—Manufacturing Machinery.—Where a corporation engaged in the manufacture of plug, chewing and smoking tobacco, cigarettes, and fine cut tobacco, with its chief factories in other cities and states, owned a tobacco warehouse in Bowling Green in which it cured tobacco bought from the farmers, by assorting, classifying, hanging it on sticks, redrying and stemming a portion of it, preparatory to shipping it to its various manufacturing plants in other cities and states, the business so conducted was not a manufacturing establishment within the meaning of chapter 11 of the Acts of the Legislature, Special Session 1917, exempting from city taxation machinery and products in course of manufacture of corporations actually engaged in manufacturing, and their raw material actually on hand at their plants for the purpose of manufacture.</p>

<p>1. Indictment and Information—Sufficiency.—It is no objection to an indictment charging two persons with murder by shooting with a pistol and cutting with a knife, .that the particular acts constituting the offense were not severally charged against each defendant, it being claimed that one of them did the shooting and the other the cutting.</p> <p>2. Criminal Law—Continuance—Discretion of Court.—An application for a continuance is addressed to the sound discretion of the trial court, and its ruling upon such an application will not be disturbed, unless it be shown that the court abused its discretion in denying the application.</p> <p>3. Criminal Law—Indictment for Murder—Submission' to Jury.— Where two persons are jointly tried for murder and there is proof tending to show that both defendants were guilty, both cases should be submitted to the jury; and one of them having been. acquitted and the other convicted, the latter cannot complain,' upon appeal, that both cases were submitted to the jury.</p> <p>4. Criminal Law—Instructions.—The instructions must be read together; anid, if, when so taken, they present the whole law of a criminal case, no error is committed.</p>

<p>1. Wills—Election by Widow.—A widow can have but one election with reference to accepting or rejecting the provisions of the will of her husband, and having elected she may not withdraw it except by proceedings in equity.</p> <p>2. Wills—Renunication of by Widow.—Under section 1404, Kentucky Statutes, a widow, in the mode pointed out, may renounce the will of her husband, and take under the statute; but having renounced the will in the mode prescribed: she may not withdraw her renunciation thereof even by a paper similarly executed, without the consent of a court of equity given upon proper showing.</p>

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

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

<p>1. Criminal .Law—Change of Venue—Discretion of Court.—A change of venue in a criminal case, is a matter within the sound discretion of the trial court, and its decision thereon will not be reversed, unless it appears, that it abused its discretion.</p> <p>2. Criminal Law—View by Jury of Place Where Crime Committed.— Permitting a jury to have a view, of the place where a crime is charged to have been committed, without the presence of the defendant, is an error, but a reversal of a judgment of conviction on account of such error will not be made, if it is affirmatively shown, that the substantial rights of the defendant were not prejudiced thereby.</p> <p><S. Criminal Law—Evidence—Use of Map by Jury.—It is not improper to permit a jury, in a criminal case, to take rvith them when they retire for deliberation, a map, which has been properly admitted as evidence, upon the-trial.</p>

<p>1. Statutes—Constitutional Law.—Section 795 ' Kentucky Statutes, is not in violation of article 1, section 8, of Federal Constitution.</p> <p>g. Railroads—Street- and Interurban Railroads.—Section 795, Kentucky Statutes, does not apply to street railroads, but does apply to an interurban railroad, regardless of its motive power, or character of equipment.</p> <p>8. Street Railroads—Street Railroads . Defined.—Street railroads are such railroads as operate within the limits of a city or town, and carry passengers from one point upon a street to another, and whose franchises for the use of the streets are granted by the municipality, after advertisement, ■ and at a public sale.</p> <p>4. Railroads—Interurban. Railroads.—Interurban railroad companies acquire their rights and powers from the state.</p> <p>5. Railroads—Interurban Railroads—Operation.—An interurban railroad company can not- escape the requirements of section 795, Kentucky Statutes, by operating or causing its road to be operated, in the manner of a street railroad.</p> <p>6. Railroads—Interurban Railroads—Operation by Lessee.—The lessee' of an interurban railroad can not evade the requirements of section 795, Kentucky Statutes, by undertaking to operate it, as a street railroad is operated in a city.</p>

<p>Contracts—Cancellation of for Fraud or Mutual Mistake.—The evidence shows that the contract of sale in this caso was procured by misrepresentation or mutual mistake and tiie contract is cancelled.</p>

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

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

<p>X. Trial—Limiting Argument to Jury.—In this action upon a contract to recover $250.00 involving only two simple issues of fact upon which hut three witnesses testified and which were suhmitted to the jury in three short instructions, it was not an abuse ■ of a sound judicial discretion to limit the arguments to ten minutes to a side.</p> <p>2. Appeal and Error—Preparing and Offering Instructions on Trial. —Although a reasonable time should be allowed to parties in which to prepare and offer instructions to which they think they are entitled, a refusal so to do is not prejudicial error where parties were not entitled to the instructions they prepared and offered after submission.</p> <p>3. Appeal and Error—Instructions.—Although one of three instructions given by the court was not supported by any evidence in so far as it authorized a finding for plaintiffs and should not have been given, the error was not prejudicial to plaintiffs since the jury found for defendants upon another issue correctly submitted in all three instructions.</p> <p>4. Appeal and Error—Instructions.—Appellants can not urge in this court as ground for reversal the failure of the trial court to give instructions upon such questions as they did not offer instructions.</p>

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

<p>1. Libel and Slander—Words Actionable—Distinction Between Libel and Slander.—There is a broad distinction between verbal slander and a written or printed publication. In determining whether 1 written or printed words are libelous per se, it is not necessary that they should impute to the person concerning whom they are' published the commission of a crime involving moral turpitude, or an infectious disease, or unfitness to perform the duties of an office or employment, or prejudice him in his profession or trade, or tend to disinherit him. It is sufficient if they have a natural and reasonable tendency to degrade or disgrace him or to render him odious, ridiculous or contemptible in the estimation of the public.</p> <p>2. . Libel and Slander—Words Actionable.—The words:</p> <p>“PLEASE TAKE NOTICE OUR COLLECTOR</p> <p>Was Here For Payment.</p> <p>We would save you the annoyance of his further calls if you will pay at the store.</p> <p>UNION CLOTHING STORE,”</p> <p>printed on' cards which were placed in conspicuous places in and about plaintiff’s residence, are libelous per se.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Division No. 1).</p>

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

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

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

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

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

<p>1. Criminal Law—Trial—Submission to Jury.—Where there is any evidence showing the guilt of the accused, the' case should be submitted to the jury.</p> <p>2. Appeal and Error—Failure to Object to Admission of Evidence.— It is a thoroughly well settled rule of practice that an appellant cannot, upon appeal, 'complain of the admission of testimony to which he did not object upon the trial; and, although the court may have admitted testimony over appellant’s objection, he' cannot ■complain unless he then excepted to the ruling of the court.</p>

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

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

<p>t. Insurance—Life Insurance—Representations—Question for Jury. —In an action on a life policy, evidence examined and held to. make it a question for the jury whether the representation of the insured that he had not had kidney disease was substantially untrue.</p> <p>2. Insurance—Life Insurance—Representations—Prior Rejections— False Answers—Materiality.—Where in a suit on a life policy, the officers of the defendant and other insurance companies, though first testifying that it was the practice of insurance companies to reject an applicant who had been rejected by other companies, admitted on cross-examination that they frequently accepted such an applicant if upon investigation and further examination, they found that the causes of his rejection were insufficient or no longer existed, it was a question for the. jury whether the defendant acting reasonably and naturally in accordance with the practice usual among life insurance companies under similar circumstances would have accepted the application and have issued the policy to the insured, who falsely stated that he had not been rejected by any other company, if the substantial truth had been stated.</p>

<p>1. Contracts—Rescission—Warranty.—A vendee of personal property, under an executed contract, which, contains a warranty, and where the contract does not otherwise provide, upon a breach of the warranty, has two remedies: (1) He may, within a reasonable time, either return or offer to return the property to the vendor, and sue for a rescission of the contract; or (2) he may elect to retain the property, and sue for damages for a breach of the warranty.</p> <p>2. Contracts—Rescission—Damage for Breach of Warranty—Election. —A vendee of personal property, under an executed contract, and who has an option, to either return the property, and sue for a rescission of the contract, or to retain the property, and sue for damages for a breach of the warranty, can not use both remedies, but must abide by the election when he has made it.</p>

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

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

<p>1. Deeds—Deed of Trust—Construction.—Under a deed of trust conveying property “for the use and benefit of first party for and during her natural life, and at her death to her children,” and further providing that “if any of her children be dead at her death leaving children, then th© child of such deceased child or children should take the part and interest of such deceased child or children,” the children of the life tenant took a defeasible fee in remainder subject to be defeated by their death, leaving children, during the lifetime of their mother, and upon her death, each of her surviving children became vested with a fee simple title to his portion of the estate.</p> <p>2. Trusts—Express Trust—Duration.—Under a trust deed providing: “The trust by this deed created shall end at the death of Mrs. Bessie Middleton and upon her youngest child reaching the age of twenty-one years; but if there should be children dead leaving . children, the trust shall continue as to the part going to the child or children of such deceased child or children, until they shall arrive at the age of twenty-one years,” the trust as to each child terminated upon the death of his mother and upon his attaining his majority, and he was then entitled to have his portion of the estate conveyed to him in fee simple.</p>

<p>1. Appeal and Error—Law of the Case.—Questions determined- on tbe first appeal of the case become tbe law of the ease and binding upon parties and privies in subsequent contests involving tbe same question.</p> <p>2. Judicial Sales—Inadequacy of Price.—Inadequacy of price alone is insufficient to set aside a judicial sale of land, especially where infants arc not involved, unless tbe inadequacy is so great as to create a presumption' of fraud or shock tbe conscience of tbe court, or where it is accompanied by circumstances indicating fraud, unfairness, impropriety or oppression on tbe part of those connected with tbe sale, in either of -which cases the inadequacy of price with, the added conditions would authorize the setting aside of the sale.</p> <p>3. Judicial Sales—Exceptions.—Merely because the reported bid was not two-thirds of the appraised value of the land furnishes no grounds for excepting to the sale, but it only postpones the execution of a deed by the officer who makes the sale for twelve months from the time it is reported, during which time properly interested parties may redeem the land, as pointed out by section 2364 of the Kentucky Statutes.</p> <p>4. ^ Appeal and Error—Statement.—Section 739 of the Civil Code requires the statement therein provided for to point out the page ■ of the transcript upon which appears the judgment appealed from, and it is only such judgment so pointed out that this court will consider on appeal.</p>

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

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

<p>1. Damages—Measure of Damages—Evidence.—Where defendant agreed to remove earth and rock from a portion of plaintiffs’ land to a level with its track so as to render the space available for building purposes, upon its failure to do so the plaintiffs were entitled to recover damages, the measure of which would he the difference in the value of the entire farm without the earth and rock removed and its value bad it been removed according to contract. But tbe evidence upon tbis point should bave been directed to tbe difference between sucb values at tbe time of tbe violation of tbe contract, and not to tbe time when tbe trial was bad.</p> <p>2. Appeal and Error—Excessive Damages.—Where tbe verdict of tbe jury is so excessive and so much against'tbe weight of tbe evi-' dence as to strike tbe mind at first blush that it was tbe result • of passion and- prejudice on tbe part of tbe jury it will be set aside as excessive, and as being flagrantly against tbe evidence.</p> <p>3. Appeal and Error—Excessive Damages.—In determining whether a verdict is flagrantly against tbe evidence or is excessive tbe court is not confined alone to tbe testimony given by tbe witnesses, but may look not only to tbe reasons which they assign for their testimony, but may also take into consideration tbe fact that tbe verdict is against tbe teachings of common experience and observation.</p> <p>4. Appeal and Error—Excessive Damages.—Defendant agreed to remove earth and rock from 37/100 of an acre of ground to the level of its track. It removed earth and rock to within 28 feet of tbe surface of its track, and in a suit to recover damages for a failure to remove all of it tbe jury returned a verdict in favor of plaintiff for $8,000.00. Held, that, under the evidence and measured by tbe rule just stated, tbe verdict is flagrantly against tbe evidence and excessive.</p>

<p>1. Wills—Election to Take Under—How Exercised.—Election to take under a will is a purely personal right and must be exercised knowingly; hence it cannot be made by an infant or her guardian.</p> <p>2. Wills—Acceptance of Provisions—Contests—Acceptance of the . provisions of a will for support during infancy by the. infant or her guardian is not an election to take under the will which will preclude a contest by the infant after attaining her majority.</p>

<p>1. Wills—Construction.—The third clause of a will was as follows: “The remainder of my property ... I give and bequeath to my beloved husband, ... to have and to enjoy same during his natural life and at his death, should there be anything left, it is my wish that it shall go to the Presbyterian church, of the city of Somerset, same to he used as the church may direct.” The fourth clause nominated the husband as executor of the will, and requested that he be permitted to qualify without security; Held, that the husband took a life estate in the property, with a right to the use and income during his lifetime, and a power to dispose of principal or such part of it, as might be necessary to furnish him a reasonably comfortable maintenance during his life, and the church took a vested right in such of the property as might not be disposed of at the death of the life tenant.</p> <p>2. Wills—Bond for Security of Property.—Where from the entire will, it is apparent, that the testatrix intended, that the life tenant should have the use and possession of the property, and there is no'disposition to waste or destroy the property, or to make use of it, other than as authorized by the will, a bond for the security of the remainderman will not be required.</p> <p>3. Wills—Construction.-—Where property is devised to one absolutely, with an unlimited power of disposition, and by an after clause of the will, it is attempted to devise over an undisposed portion of the property, the limitation .over is void, but, where a life estate only is devised, and the life tenant is given the power of disposition, a limitation over of such of the property as may remain undisposed of by life tenant, at his death, is a valid limitation.</p>

<p>1. Municipal Corporations—Records of Public Corporations—Evidence.—The only competent evidence of the acts of a public corporation, which is required by law to keep a record of its proceedings, is the record, in the absence of parol proof that a record was made, but has been lost or destroyed.</p> <p>2. Mandamus—How Invoked.—The writ of mandamus can not create a legal duty, but can only be invoked to compel the performance of a duty, which has already been imposed.</p> <p>3. Appeal and Error—Statement of Pacts—Bill of Exceptions.—An agreed statement of facts subscribed by the parties, and identified by an order of court, and certified by the clerk, does not have to be embraced in a bill of exceptions, in order to entitle it to be considered upon an appeal to the Court of Appeals; and in the absence of a motion for a new trial, the Court of Appeals' is authorized to determine whether the evidence supports the judgment.</p>

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

<p>Appeal and Error—Findings—Conclusiveness—Equity Cases.— Where the evidence on a question is conflicting, and upon- a consideration cf the whole case, the mind is left in such doubt, that the appellate court cannot say with reasonable certainty that the chancellor erred in his conclusion, his finding will not be disturbed.</p>

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

<p>Taxation—Omitted Property—Claim for Unliquidated Damages— Assessment.-—A mere claim for unliquidated damages for the breach of a contract, though subsequently reduced to a judgment, is ‘not taxable.</p>

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

<p>1. Appeal and Error—Final Order.—An appeal cannot be prosecuted to tbis court unless the judgment appealed from is final, and to be final it must not only determine that one of the parties is entitled to relief of a final character, but it must go further and give that relief by its own force or be enforceable for that purpose without further action of the court or by process for contempt.</p> <p>2. Appeal and Error—Final Order.—Where only the question as to the construction of a deed is submitted to the court, which renders a judgment construing the deed, without giving enforceable relief, it is not a final judgment from which an appeal may he prosecuted.</p>

<p>Appeal and Error—Failure of Appellant to Point Out Errors in Brief.—When counsel for appellant does not point out in his brief any error in the judgment appealed from, or assign any reason why it should be reversed, the court, having neither the time nor the inclination to hunt for errors that might justify a reversal, will assume that the judgment appealed from is correct, and affirm it.</p>

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

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

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

<p>1. Contracts—Evidence—Specifications.—If in contracts for the construction of a building or other structure according to plans and specifications it should turn out after the contract was entered into that there were neither plans nor specifications concerning a particular part of the work contracted to be done, it is competent ' for the parties to supply the omission by mutual agreement, and if done, and the work is constructed accordingly, and in the manner provided by the contract, the contractor will not be liable because of subsequent unforeseen developments whereby the supplied plans and specifications proved insufficient, especially so if such developments were the result of negligent and wrongful acts of a third party.</p> <p>2. Bridges—Negligence in Construction of Bridge.—A county contracted for the construction of a steel bridge, the work to be done according to .plans and specifications and in good, workmanlike manner. There were neither plans nor specifications concerning the depth of the piers, but this was afterward agreed to by the officers of the county and ratified by the fiscal court, andi the work completed according to contract and accepted as such by the county. Because of wrongful acts of a logging company the stream was dammed and the channel diverted against one of the piers, producing such a current as to undermine it although erected on a foundation which both the contractor and the agents of the county deemed sufficient, and which would not have occurred had it not been for the negligence of the logging company. Held, that the contractor can not be held liable for damages produced by the undermining of the pier.</p>

<p>1. Judgment—Res Judicata.—Matters which have been set up as a defense in a former action, between the same parties, are res judicata, and cannot be asserted as a cause of action in avoidance of the judgment in the first action.</p> <p>2. Action—When New Action Not Allowed.—Section 17 of the Civil Code does not authorize a new action upon a claim which was urged as a defense and disallowed in a former action between the same parties.</p>

<p>1. Statutes—Public Roads, Establishment and Regulation.—The Act of 1914 entitled, “An Act .defining public roads; providing for tbeir establishment, regulation, use and maintenance; and creating the office of county road engineer, and prescribing the duties thereof” (Acts 1914, p. 338), violates neither section 2, 13, 14, 5Í nor 242 of the Constitution of Kentucky.</p> <p>2. Statutes—Location of Public Roads.—Under the Act of 1914 (Ky. Stats., secs. 4298, 4301 and 4302) it is not necessary that tho landowner should give his consent in order that a public road may be located across his land.</p> <p>3. Highways—Location of Public Roads—Notice.—Section 18 of the Act of 1914 (Ky. Stats., see. 4304) relating to the notice to be given concerning the location of public roads only provides that every such notice shall be published in the manner therein prescribed; it does not prescribe what the notice shall contain; if it gives notice of the general location of the proposed road, showing its course with relation to the lands affected, and its terminal points, it will be sufficient.</p> <p>4. Highways—Viewers’ Report.—A report of viewers which gives the grades and bearings of a proposed road and so much of the old road as is to be abandoned, giving the terminal points of each as shown by a survey accompanied by a map giving the grades and bearings of the routes andi the advantages of the proposed change, is a sufficient report.</p> <p>5. Highways—Viewers’ Report.—A viewers’ report upon the proposed location or change in a public road may be amended, in furtherance of justice, as in any other case or proceeding.</p> <p>6. Highways—Location of Public Road..—In a proceeding to locate a public road over the land of the plaintiff, he is entitled to recover (1) for the land taken; (2) for additional necessary fencing; and, (3)- for such other direct damage that will result to the remainder of his tract by reason of the situation, condition, or shape in which it will be placed by the location of the road, but not to exceed in all the difference between the actual value of the entire tract immediately before, a.nd the actual value of the remainder immediately after the taking, excluding from consideration any benefits to the land not taken by reason of the opening or use of the road.</p> <p>7. Highways—Location of Road—Finding Upon Question of Damages.—The finding of a jury upon the question of damages for the location of a public road will not be disturbed unless it be flagrantly against the weight of the evidence.</p>

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

<p>1. Carriers— Personal Injury — Instructions — Prejudicial Error.— Where in a passenger’s action for personal injuries, the court instructed the jury that if they believed from the evidence, that while plaintiff was in the act of alighting, the car was started and that she, in order to balance herself, put her hand on the gate and that her finger, or the ring upon her finger, caught in the wire mesh of the gate and her hand was thereby injured, they should find for plaintiff, the court’s failure to submit the question whether plaintiff in placing her hand on the gate exercised ordinary care for her own safety was not prejudicial error, in .view of the fact that if the car suddenly started, plaintiff’s act in throwing out her hand was involuntary and there was no opportunity for plaintiff to stop and consider whether she could protect herself in a less dangerous way.</p> <p>2. Damages—Instructions—Evidence to Sustain.—An instruction authorizing the recovery of $350.00 damages for medical treatment was prejudicial, where there was no evidence to support a finding in excess of $25.00, and the jury did not separate the items of damage but returned a verdict for a lump sum, and it was impossible to tell how much damages they allowed for medical treatment.</p>

<p>1. Receiving Stolen Goods—Punishment.—The punishment for knowingly receiving stolen goods from a railroad company in transportation is fixed by section 1201b Kentucky Statutes, even though the property taken be of less value than twenty dollars.</p> <p>2. Receiving Stolen Goods—Punishment.—Where one knowingly receives stolen goods, his punishment, under section 1199, Kentucky Statutes, is fixed at the same penalty as that of the thief.</p> <p>3. Receiving Stolen Goods—Instructions.—One charged with knowingly receiving goods which were stolen from a railroad company in the course of transportation, is not entitled to have an instruction on petit larceny.</p>

<p>1. Reformation, of Instruments—Grounds—Mutual Mistake.—Equity will reform a written contract when by reason of the mutual mistake of the parties it does not express their true agreement.</p> <p>2. Reformation of Instruments—Pleading—Instrument as Made and as Intended.—In pleading a cause in reformation, it is necessary to allege in clear and concise language the grounds of reformation, the agreement actually made and the agreement which the parties intended to make.</p> <p>3. Reformation of Instruments—Pleading — Grounds — Mistake.— Where the ground of reformation is mutual mistake, it is not necessary to allege mutual mistake in terms, but a pleading is generally regarded as sufficient which alleges facts from which a mutual mistake may be readily inferred.</p> <p>4. Reformation of Instruments—Pleading—Grounds—Mistake.—A pleading which alleges in substance that the true agreement between the parties was that the defendant was to pay plaintiff $25 per month, whereas by error, oversight and mistake, contract provided that he should pay plaintiff $40 per month, alleges facts from which mutual mistake may be readily inferred and is therefore good on demurrer.</p> <p>5. Reformation of Instruments—Pleading—Mistake—Failure to Allege When Discovered—Effect.—The sufficiency of an answer and counterclaim asking' a reformation of a written instrument on the ground of mistake is not affected by the defendant’s failure to state when he discovered the mistake, since that feature of the case bears only on the questions of limitation and laches whicn are not raised by the demurrer.</p> <p>6. Reformation of Instruments—Pleading—Mistake—Payments Made by Mistake—Effect.—The sufficiency of an answer and counterclaim asking a reformation of a written instrument on the ground of mistake is not affected by the fact that the defendant continued to make payments for several years as provided by the contract, since that inquiry will not become material until the case is tried on the merits.</p>

<p>1. Appeal and Error—Finding of Chancellor.—Where an appeal presents only a question of fact which has been determined by the chancellor, the finding of the chancellor will not be disturbed unless it be contrary to the weight of the evidence.</p> <p>2. Appeal and Error—Finding of Chancellor.—In this case the great weight of evidence appears to sustain the finding of the chancellor and the judgment is affirmed.</p>

<p>1. Contracts—Construction.—Where a contract, in writing, is not ambiguous nor its terms inconsistent, the meaning of it, is a question for the court, and not the jury. ;</p> <p>2. Contracts—Right of Contractors.—The general rule, which defines the right of a builder to compensation for the erection of a 'structure, under a contract is; if the structure is built in accordance with the contract, he is entitled to the contract price; if in good faith, and endeavoring to carry out his. contract, he builds it, not in literal compliance with the contract, but, substantially so, he is entitled to the contract price, less such sum as the owner may be entitled to as damages, for a failure of literal compliance, under the facts of the case.</p> <p>3. Contracts—Contractors—Refusal to Accept Work.—If the builder fails to erect a structure in accordance with the contract, or substantially so, the party for whom he builds it, may refuse to accept or to pay for it.</p>

<p>1. Judicial Sales—Exceptions.—Where the plaintiff, in an action to enforce a lien upon land, alleges that the property can not be divided without material impairment of its value, and the defendant fails to defend the action or to deny the indivisibility of the property,-and the court adjudges that the land is indivisible in the order, of sale, and directs it to be sold as a whole, the defendant, after the sale can not except to the report of sale upon the ground, that the court erred in ordering the land sold as a whole and that it ought to have been divided before sale.</p> <p>2. Judicial Sales—Inadequacy of Price—Exceptions.—If in an action for the sale of real property, there is no allegation in the pleadings, with reference to the divisibility of the property, and no issue made with reference to such question, and the court, in accordance with section 694, of the Civil Code determines, that question, in the order of sale, and errs as to the question, and the result of the error, is that the land sells for a grossly inadequate price, the owner may except to the sale upon the ground of the error, and the court may correct the error by setting aside the sale and modifying the order of sale, although the commissioner has made the sale, in conformity to the order.</p>

<p>Appeal and Error—Second Appeal.—The judgment appealed from conformed to the opinion delivered on the first appeal of the case and is affirmed.</p>

<p>Divorce—Custody of Children.—Where a divorce from the bond of matrimony is granted and the wife is awarded the- custody of the children, provision should be made in the judgment to allow the father to have, at stated periods, the custody of the children. • •</p>

<p>Railroads— Operation — Nuisance — Indictment —Sufficiency. •—In the absence of an ordinance prescribing a reasonable maximum speed through an incorporated town, it is essential to the validity of an indictment charging a railroad company with maintaining a common nuisance, by habitually running its trains at such a dangerous and excessive rate of speed as to jeopardize the lives of the public, to allege that such running of such trains was without the customary and necessary warnings of their approach.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Division No. 1).</p>

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

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

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

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

<p>Descent and Distribution—Infants.—When an infant dies without issue, having title to real estate by descent from his mother, the whole estate descends to infant’s maternal uncle and aunt, as her next of kindred, to the exclusion of half-brothers of d'eee.dr ent, under section 1401 Ky. Statutes.</p>

<p>1. Infants—Judicial Sales—Appointment of Guardian Ad Litem— Prerequisite.—Under Civil Code of Practice, section 38; providing that no appointment of a guardian ad litem shall be made until the defendant has been summoned, the appointment of a guardian ad litem for an infant defendant before the infant is served with process is void and does not have the effect of bringing such infant before the court.</p> <p>2. Infants—Appointment of Guardian Ad Litem—Effect of Invalid Appointment.—A judgment ordering the sale of lands, in which an infánt is jointly interested, is void as to such infant where the appointment of the guardian ad litem was void because made before service of process upon the infant.</p> <p>3. Infants—Judicial Sales—Parties—Authority of Trustee.—The rule that a guardian may bring an action pursuant to subsection 2, section 4S0, Civil Code, for and on behalf of his infant ward without making the infant either a' party plaintiff or defendant is based upon the peculiar provisions of the Civil Code, and will not be extended so as to embrace the trustee of an infant, especially where the latter not only represents the interest of others, but is himself jointly interested in the property sought to be sold.</p> <p>4. Wills—Devise to Tenants in Common or Joint Tenants—Death of Devisee Before Testator—Effect.—Where a testator devised his property to his two full brothers, naming them, and his half-brother, naming him, “Equally, each of the three to share and share alike, making no distinction between them,” and his half-brother died without descendants before the testator, his portion of the estate passed to the surviving devisees under section 2064, Kentucky Statutes, which provides that when a devise is made to several as a class, or as tenants in common, or as joint tenants, and one or more of the devisees shall die before the testator, and another or others shall survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees unless a different disposition is made by the devisor.</p> <p>5. Appeal and Error—Equity Case—Questions Undecided Below—Review.—The Court of Appeals is a court of errors and not of original jurisdiction, and will not adjudicate questions not decided below.</p>

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

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

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

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

<p>1. Banks and Banking—Agency.—One who in opening an account with a bank makes a deposit with the specific understanding and agreement that the bank is to pay out the funds upon checks signed by another, and the funds are so paid out, can not have a recovery against the bank on the ground that the agency of the third person was not in writing.</p> <p>2. Banks and Banking—Checks Drawn by Another Than Depositor. —Subsection 19 of section 3720b Kentucky Statutes (Negotiable Instrument Act), has no application where the depositor and the bank agree at the time the deposit is made and account opened, that the funds shall be paid by the bank upon checks, to which the depositor’s name is signed by another.</p> <p>3. Banks and Banking—Debtor and Creditor.—The relation of principal and agent does not exist between the depositor and the bank, but they stand in the relation of creditor and debtor.</p>

<p>1. Master and Servant—Performing Work in Dangerous Way.—An experienced miller in charge of a mill, who elects to do his work in a dangerous way when there is a safe way open to him, and is injured, is without remedy.</p> <p>2. Trial—Peremptory Instructions.—When all the evidence introduced by the' plaintiff, together with all reasonable inferences to be drawn therefrom,'is considered and no cause of action is shown, - it is the duty of the trial court to sustain a motion of the defendant for peremptory instruction.</p>

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

<p>1. Appeal and Error—Advancement of Cases.—Rule VI of court authorizing the advancement of cases once adjudicated by this court and again brought up by appeal, applies only to the same case which has heretofore been adjudicated in the Court of Appeals; it has no application to a different case, instituted in a different court, although it may be between the same parties and about the same subject matter.</p> <p>2. Appeal and Error—Statement—Striking Appeal from Docket.— Where the statement of appeal required by section 739 of the Civil Code makes no reference to the judgment which appellants would have the court review, the appeal will be stricken from the docket.</p>

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

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

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

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

<p>Carriers—Shipment of Live Stock—Liability of Carrier.—A common carrier of live stock is an insurer of their safe transportation and delivery, and is liable for the death or any injury to the stock, unless same was produced by the act of God, by the public enemy, by the inherent nature or vice of the animals, fault of the shipper, by public authority, or by disease or sickness of the animals, which proximately and without negligence of the carrier produced the loss. If, however, the shipment is accompanied by the owner or his agent, or if the loss is produced by sickness or disease of the animals, the burden in either case is upon the shipper to show that- the loss was due to some negligence of the carrier, provided always that the stock was in good condition when loaded.</p>

<p>1. Carriers—Risks Assumed by Passengers.—Passengers on freight or mixed trains assume the additional dangers arising from jerks or other causes incident to the operation of such trains, but this does not relieve the carrier from using the highest degree of care to prevent unusual and unnecessary jolts, jerks or jars by such trains which are not usual and incidental to their prudent operation.</p> <p>2. Carriers—Action for Injuries by Passenger—Instructions.—An instruction to find for plaintiff, who was a passenger on a mixed train, if the jury believed that it was so negligently operated as to produce a jerk “not necessary or usual in the operation of said train,” whereby plaintiff was injured, is not erroneous because it did not define the train as a mixed one when in another instruction the proper degree of care in the operation of a mixed train was defined.</p> <p>3. Carriers—Action for Injuries by Passenger—Evidence.—Testimony as to the character of jerk, jolt or jar of a train carrying passengers need not be expressly stated by the witnesses to be violent, unusual and unnecessary, it being sufficient, if the kind of such jolt, jerk or jar is shown by the testimony to have been of the character mentioned, and which would authorize the jury to so find.</p>

<p>1. Officers—Bonds—Liability for Taking Insufficient Surety, on.— Sections 683 and 684 of tbe Civil Code prescribe tlie qualifications of sureties in bonds taken by public officers, and when an officer fails to take the required affidavit as to the solvency of the surety and the surety turns out to be insolvent, the officer will be liable on his bond unless it be clearly shown that the surety had the property prescribed in section 684.</p> <p>2. Officers—Bonds—Surety on—Averments of Petition.—In a suit on an officer’s bond to recover damages for his failure to take sufficient surety, a petition charging only that the sureties were insolvent when accepted by the officer creates a presumption that ' the officer did not do his duty and is good on demurrer.</p> <p>'3. Officers—Bonds—Burden of Proof in Action On.—In a suit on an officer’s bond to recover damages caused by his failure to take sufficient surety in a bond, when the petition alleges that the sureties were insolvent at the time they were accepted the burden is on the officer to show that he took the affidavit required by the Code or that the sureties at the time they were accepted had property in the amount and of the value prescribed in section 684 of the Code.</p> <p>4. Officers—Bonds—Liability of Officer for Taking Insufficient Surety.—Although an officer may require the surety to make the affidavit required by section 683 of the Code, he will yet be liable if they were insolvent, if he knew the affidavit made by them was false or that they were in fact insolvent.</p> <p>5. Officers—Bonds—Master Commissioner—Liability of For Taking Insufficient Surety in Sale Bonds.—Where a master commissioner accepts on a sale bond insolvent surety and it is necessary on this account that there should be a re-sale of the property, and at the re-sale, it brings less than it did at the first sale, the-master commissioner will be liable on his bond for any loss sustained by creditors or others on account of his failure to take a sufficient bond at the first sale.</p>

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

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

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

<p>Appeal from Jefferson Circuit Court (Common Pleas No. 2)</p>

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

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

<p>1. Master and Servant—Injury to Servant in Mine—Submission to Jury.—Where the owner of a coal mine violated section 2729 of the Kentucky Statutes by failing to brattice the .air ways of his mine, and drove an entry more than sixty feet in advance of a “break-though” or air way, thereby causing smoke to accumulate in the mine and the injury of a workman from collision between mining cars, his case was properly submitted to the jury.</p> <p>2. Master and Servant—Fellow Servants.—Two drivers of coal cars, ■hauling coal out of different entries in a coal mine, are not fellow servants.</p> <p>3. Damages—Excessive . Damages.—A recovery of $500.00 for the double fracture of the index finger of the right hand of a coal miner, which caused his hand to feel numb and lose its power of grip, was not excessive.</p>

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