Volume 182 — Kentucky Reports

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

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

<p>'Appeal from Metcalfe Circuit Court;</p>

<p>1. Carriers — Personal Injuries — Negligence—Burden of Proof. — A passenger injured by falling through a glass door on a train, and who relies for a recovery upon the negligence of the company in causing the train to make a sudden, unusual and unnecessary jerk which made him fall, has the burden of establishing the negligence of the company, and negligence of the company will not be presumed from the faet the passenger was injured.</p> <p>2. Carriers — Personal Injuries — Instructions.—Where the plaintiff and his witnesses testify that the train made a sudden, unusual and unnecessary jerk, but the defendant introduces a number of witnesses who contradict the evidence given by plaintiff and his witnesses, and state that the train did not give a sudden, unusual and unnecessary jerk, and the court submits the question by proper instruction to the jury and it returns a verdict for the defendant and judgment is entered thereon, said judgment will not be disturbed by this court unless the verdict is palpably and flagrantly against the evidence.</p> <p>3. Negligence — Intoxication as Contributory Negligence. — Voluntary intoxication is not per se contributory negligence, but it is a matter which may be considered along with other contributing causes which produce the injury of the plaintiff, in determining whether the'plaintiff was guilty of such negligence as but for which his injury would not have occurred, and thus bar his recovery.</p> <p>4. Negligence — Contributory Negligence — Prejudicial Error. — If there is any evidence that the plaintiff was guilty of negligence which contributed to his injury, it is proper for the trial court to give an instruction upon contributory negligence, and where the court gives an instruction upon contributory negligence which is in form and substance the same as one offered by the plaintiff, there is no prejudicial error.</p>

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

<p>1. Corporations — Suit to Wind Up Affairs of, After Corporate Ufo Ended — Time in Which it May be Brought. — Under section 561 or the Kentucky Statutes, a suit to wind up the affairs of a corporation may, in the absence of anything to show that prejudice would be worked to the rights of other parties, be brought more than two years after the life of the corporation has expired.</p> <p>2. Corporations — Suit to Wind Up Affairs of, After Corporate Life Ended. — Where the life of a corporation expired in 1913, a majority of tlie directors in office at tlie time of its death had the right to bring a suit in 1917 for the purpose of selling its property and distributing the proceeds among the stockholders, there being no creditors.</p> <p>3. Corporations — Property of Vests in Stockholders Upon Dissolution of. — Upon the dissolution of a business corporation its property vests in the stockholders subject to the payment of corporate debts and liabilities.</p> <p>4. Corporations — Suit to Settle Affairs of — May Be Brought Against Some of Stockholders for All. — In a suit by the directors to wind up the affairs of a corporation after its life has expired, those stockholders who are known may be made defendants for the benefit of all the stockholders, under section 25 of the Civil Code authorizing one or more to defend for the benefit of all, where the question involved is of common or general interest, and the parties are numerous, and it is impracticable to bring them all before the court.</p> <p>5. Judicial Sales — Terms of Sale. — Section 696 of the Civil Code regulates the sale of property under judicial decree, and the sale should be on the terms provided in this section and not for cash, nor should any cash deposit be required of the purchaser.</p>

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

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

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

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

<p>1. Forcible Entry and Detainer — Possession.—One having a tenancy from year to year is a tenant for a term within the provisions of division 4, subsection 3, of section 452 of the Civil Code of Practice, and if .one forcibly enters upon the possession of a tenant from year to year the landlord may by forcible detainer proceedings recover the possession from him, after demand and refusal.</p> <p>2. Forcible Entry and Detainer — Amending Warrant. — If a tenant from year to year assigns his term without the consent of the landlord, the latter may recover possession from the assignee after ten days’ written notice to quit has been given by either a writ of forcible entry or forcible detainer, as provided'by section 2292 of the Kentucky Statutes. Quere: May a warrant for forcible detainer be amended so as to convert the proceedings into one for forcible entry and vice versa? The question is not decided.</p>

<p>1. Appeal and Error — Finding of Chancellor.- — Where the evidence is ' conflicting and the case turns on the credibility of the witnesses, who are known to the chancellor, it is the practice of the Court of Appeals to rely upon the chancellor and not to disturb his finding of fact, unless the court can say with reasonable certainty that he erred in his conclusion.</p> <p>2. Champerty and Maintenance — Possession of Agent — Possession of Tenant — When Adverse. — The possession of an agent or tenant of a grantor is not adverse to the grantor’s grantee so as to render a deed by the latter champertous in the absence of a clear and unequivocal disclaimer of the relation by which he acquired possession brought to the notice of such grantee.</p>

<p>Divorce — Support of Child. — Judgment Refusing Wife Divorce Not Bar to Suit Requiring Husband to Support Child. — Where a wife brought a suit for divorce from the bonds of matrimony and for maintenance for herself and child and the court dismissed her suit for divorce without adjudging the question of maintaining the child, the judgment will not be a bar to a subsequent suit to require the husband to support or contribute to the support of the child.</p>

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

<p>Vendor and Purchaser — Bond for Title — Violation of Covenant — ■ Rescission. — Where an improvement company laid off a subdivision into lots,, streets and alleys,-and sold the lots .to purchasers, including the defendant, by title bonds providing that the streets and alleys were to be for the free and unrestricted use of the lot owners, and then sold the remainder of the lots and notes executed by the purchasers to two other parties who sold and conveyed them to plaintiffs, who made the purchase with knowledge of the conditions and restrictions under which the lots were sold, and who actively aided, assisted and represented a railroad company in acquiring a right of way through the subdivision, which railroad company subsequently constructed its road so as to violate the covenants and restrictions contained in the title bonds, plaintiffs so far contributed to the violation of the covenant under which defendant purchased as to make them responsible for its breach, thus depriving them of ‘the right to enforce the contract and giving to the defendant adequate cause for its rescission, notwithstanding the fact that the railroad company, after acquiring its right of way, subsequently condemned the same right of way under the advice of one of the plaintiffs who acted as its counsel, since the condemnation t proceedings served no other purpose than to acquire under the form of law a right which the company had already acquired by purchase.</p>

<p>1. Husband and Wife — -Alienation of Affections — Criminal Conversation. — While a married woman could under the common law maintain an action for the alienation of her husband’s affections, she could not maintain an action against another woman for ■ having had criminal conversation with the married woman’s hus- • band.</p> <p>2. Husband and Wife — Criminal Conversation. — In its general and . . comprehensive sense, the term criminal conversation is synonymous'with adultery;.but in its more limited and technical signification; it may be defined as adultery in the aspect of a tort.</p> <p>3. Husband and Wife — Criminal Conversation. — The reason for the common law rule which allowed the husband to maintain an action for criminal conversation but denied that right to the . ’ wife, rested not so much upon any principle of abstract right, as in the subservient relation which the wife occupied at the common law, and because the husband, who was a particeps criminis, .must be joined with her as plaintiff.</p> <p>4. Husband and Wife — Criminal Conversation. — The actual injury to the wife for the loss of consortium, which is the basis of the action for criminal conversation, is the same as the actual injury to the husband from that cause; and his right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband.</p> <p>5. Husband and Wife — Criminal Conversation — Married Woman May Maintain Action. — The tendency of modern thought is to ' abrogate the idea of superior and inferior from, the relation of husband and wife; and as, under the Married Woman’s Act of 1894 (Ky. Sts., sec. 2128), married women are permitted .to sue independently of their husbands and to hold their property separately, the reasons for the distinction which denied her the right to sue for crim. con. have ceased, and a married woman may now maintain an action against another woman for criminal conversation.</p>

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

<p>1 Trespass to Try Title — Title to Support Action. — In a suit in trespass to try title to land, the ■ defendant must succeed unless the plaintiff shows superior title in himself.</p> <p>2. Boundaries — Location of Corners — Evidence.—Where the proper location of a given patent or survey is in question, and the litigants agree upon its shape and size, but dispute as to the proper location of the beginning corner, the only question necessary to submit to the jury is the proper location of said corner.</p> <p>3. Adverse Possession — Evidence.—Where the defendant claims the land by adverse possession and this claim is traversed by plaintiff and the evidence is conflicting, the question is for the jury.</p> <p>4. Public Lands — Copy of Land Warrant — Evidence.—A certified copy of a land warrant, entered upon the land warrant book in the county court clerk’s office, is presumptive evidence of the existence of such warrant, and in the absence of proof to the contrary the presumption in favor of the warrant will prevail; and the mere failure of the county court clerk in a limited time to find the orders of the county court for a given term in 1843, is not sufficient proof to overcome the presumption.</p> <p>5. Appeal and Error — Statement.—A statement of appeal must contain, among other things, the date on which the judgment is rendered and the page of the record upon which it may be found, and if it fails to contain these things, the appeal should not be docketed by the clerk, and if docketed will be stricken on motion made before submission of the case.</p>

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

<p>1. Municipal Corporations — Street Improvement — Discretion.—Municipalities are allowed a broad discretion as to tbe character o£ improvement of a street or pavement to be made, when and where it shall be made, and the material out of which it shall be constructed.</p> <p>2. Municipal Corporations — Street Improvement. — The legislative body of a municipality may adopt plans of street and pavement improvement and cause the same to be constructed in accordance therewith and not become responsible for personal injury to pedestrians falling thereon, if the plan adopted and carried out is not palpably or obviously unsafe for travelers.</p> <p>3. Municipal Corporations — Street Improvement. — While a municipality is bound to maintain its streets and sidewalks in a reasonably safe condition for the travel of the public, yet if the improvement be made according to a plan that reasonably prudent persons would consider safe, the city is not liable for injury to travelers Which results from the use of such street or pavement.</p> <p>4. Municipal Corporations — Construction of Sidewalks. — In the construction of sidewalks a city may conform to the natural surface of the ground, or may where necessary, construct a step or slope which is not inherently dangerous, and not be responsible for injury resulting to travelers.</p> <p>5 Municipal Corporations — Sidewalks.—A slope which falls seven inches in four feet in a sidewalk at a street crossing is not so palpably dangerous or unsafe as will render the city liable for injury to one falling thereon, unless the sidewalk when completed was so slick or otherwise inherently dangerous as to im- . press the mind, of a reasonably prudent person that it was not reasonably safe.</p> <p>6. Municipal Corporations — Sidewalks—Personal Injuries. — The mere fact that a pavement which is constructed in accordance with a . plan that is reasonably safe, and of materials suited to the purpose becomes dangerous when covered with ice, does not necessarily render the city liable for personal injury occasioned by pedestrians falling thereon.</p>

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

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

<p>1. Life Estates — Purchaser of — Adverse Possession — Limitation.— , The’ purchaser from a life tenant by his use of the land or assertion of claim to it while holding as life tenant will not have the effect of converting his amicable use and possession into an adverse holding, or start the statute of limitation in his favor.</p> <p>2. Tenancy in Cojnmon — Adverse Possession. — Where one joint 'tenant is in possession of the land owned in common with other joint tenants, he cannot assert title to the whole by adverse possession until he has brought home to the other joint tenants by clear and convincing evidence notice of his intention to set up title in himself as against them and has so asserted title for the statutory period.</p>

<p>1. Wills — Construction of — Substitution of Words. — To effectuate the intention of the testator, it is allowable to substitute the word “either” for the -word “both.”</p> <p>2. Wills — Construction of — Devise to a Class. — Whether a devise or a bequest is to a class or to the individuals constituting a class will depend upon the language of the will .and if it appear that the number of persons who are to take and the amount of their shares are uncertain, the beneficiaries will generally be held to take as a class; but where the number of beneficiaries is certain and the share each is to receive is also certain, it is not a gift to a class but to the individuals, and so where the beneficiaries are named and their shares are certain they will take as individuals and not as a class.</p>

<p>1. Corporations — Contract for Sale of Article — Process—Statement as to Service. — A foreign manufacturing corporation in carrying out its contract for an interstate sale of a refrigeration plant by the erection and installation thereof within the state before complete delivery, is not doing a local business so as to make its compliance with section 571 of. Kentucky Statutes a condition precedent to its right to sue upon the contract.</p> <p>2. Appeal and Error — Court of Errors. — The Court of Appeals is a court of errors and not of original jurisdiction, and will not adjudicate questions not decided below.</p>

<p>1. Carriers — Duty in Transportation of Shipment. — A common carrier is not an insurer against delay in the transportation of the shipment, but in the absence of a specified time in the contract the delivery must be made within a reasonable time, and what constitutes a reasonable time is dependent upon the circumstances of each particular case.</p> <p>2. Carriers — Delivery of Shipment. — If a common carrier delivers a shipment according to the usual modes employed for transportation over the' route, and within the usual schedule time, a reasonable delay caused by connections necessary to be made to reach the destination can not be considered as an unreasonable delay for which the carrier is liable'.</p> <p>3. Carriers — Contract With Shipper — Interstate Commerce. — Under the Federal Statute known as the Carmack Amendment’ and amendatory acts thereto it is incompetent for a carrier to contract with the shipper whereby the latter obtains advantages different from the general public in the transportation of similar freight when the schedule of rates for that character of transportation is on file with the Interstate Commerce Commission.</p> <p>4. Carriers — Delivery—Injury to Stock. — The appellant agreed to transport by express from Turner’s Station in Maryland to Scotts, a station in Shelby county, Kentucky, some Jersey cattle. There was no agreement as to the time the delivery should be made, nor as to the route over which, the shipment should travel, but it made close connection and reached Lexington, Kentucky, by the fast Chesapeake' & Ohio train on time, without any unusual delay or injury to the cattle. That train, although passing through Scotts and over the same road, was not. scheduled to stop at that place, and the cars containing the cattle were placed on a side track in Lexington, where they were taken by the next regular train four hours later which did stop at Scotts. Held that the delivery was made within a reasonable time and the express company was not liable under a charge of negligence for causing an unreasonable delay.</p>

<p>1. Evidence — Physicians and Surgeons — Res Gestae. — It is competent for a patient in a statement made to his physician to give his symptoms and feelings, and if he' is suffering from an injury to tell how the injury occurred, which statement may be given in evidence by the physician as being a history of the case given to him by the patient, but if the statement is made at a time so far removed from the accident as to make it incompetent under the res gestae rule, the physician should not be permitted to state a narrative of the events attending the accident which was given to him by the patient, as such narrative is not necessary to enable the physician to properly understand and treat the case.</p> <p>2. Insurance — Accident Insurance — Evidence of Physician. — Where one held an accident policy agreeing to indemnify his estate to the extent of $2,500.00 if death should ensue solely and only from accidental causes received while actually riding as a passenger within a railroad car on a train provided by a common carrier for passengers, in a suit upon the policy to recover for the insured’s death it was error to permit the physician to state that the deceased, sixteen days after receiving the injury, stated that he had been injured on a passenger train, since the place where the accident was received threw no light upon the plaintiff’s condition to enable the physician to properly understand and treat the case; and further, such statement is both self serving and hearsay.</p> <p>3. Insurance — Evidence—Instructions.—Plaintiff’s decedent held an accident policy conditioned as indicated. It was claimed that he received an accident coming wifhin the purview of the policy on January 12. On January 28, sixteen days thereafter, he consulted a physician who concluded that he was afflicted with a condition known as ascites, explained by the physician to be an accumulation of fluid in the abdominal cavity, and which the physician testified could have been produced by a traumatism upon the liver caused by the accident. An operation disclosed that there was a malignant growth upon the liver, instead of fluid in the abdominal cavity, which tumor was as large as a man’s head, and that it could not have been produced by the accident which occurred sixteen days before. Held, that the jury should have been instructed to find for the defendant, upon the ground that the evidence failed to disclose that death was produced solely by and as a direct consequence of the accident.</p>

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

<p>1. Divorce — Appeal—Questions Reviéwable. — While the Court of Appeals cannot disturb a decree of divorce, it has jurisdiction to examine the facts of the case in order to determine the wife’s right to alimony, as well as her right to the maintenance and custody of her children.</p> <p>2. Divorce — Adultery and Lewd Conduct of Wife — Evidence—Sufficiency. — In a divorce suit by husband, evidence held insufficient to show the wife was guilty of adultery or of such lewd and lascivious behavior as proved her to be unchaste.</p> <p>3. Divorce — Cruel and Inhuman Treatment by Husband — Evidence— Sufficiency. — In a counter-suit for divorce by a wife, evidence held to show such cruel and inhuman treatment on the part of the husband as entitled her to a divorce.</p> <p>4. Divorce — Alimony.—In a counter-suit by a wife for divorce and alimony, the wife held entitled to an allowance of alimony in the sum of $250.00.</p>

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

<p>1. Municipal Corporations — Records.—A municipality can speak only by its records.</p> <p>2. Injunction — Pleadings.—Upon a motion for a preliminary injunction a defendant is not required to file ap. answer to the merits of the case; he may proceed by affidavits without a pleading.</p> <p>3. Corporations — Public Service Company — Discontinuance of Service — Injunction.—A public service company has a right to discontinue its service when the customer declines to pay therefor; but it may be enjoined from discontinuing its service on a failure of the customer to pay a bill which he, in good faith, and upon reasonable grounds, disputes.</p> <p>4. Contracts — Municipal and Otherwise — Construction.—There is no difference between the contracts of a municipality and other contracts as to the canons of construction.</p> <p>5. Equity — Remedy at Law. — Equity will not grant relief where the plaintiff has an ample remedy at law. •</p> <p>6. Municipal Corporations — Cancellation of Lighting Contract — Injunction. — Where a municipality cancelled its contract with a public lighting company, pursuant to a provision of the contract authorizing a cancellation, and the public service company discontinued its service, the municipality will not be granted a mandatory injunction requiring the public service company to specifically perform the contract.</p>

<p>1. Contracts — Sale of Crop of Tobacco — Acceptance of Part of Crop —Counterclaim.—Where a purchaser of a crop of tobacco under an entire and not a severable contract accepted a portion of the crop and was sued for the purchase price thereof, his acceptance of a portion of the tobacco did not estop him from asserting a counterclaim against the plaintiff for a breach of the contract in refusing to deliver all the tobacco called for in the contract.</p> <p>2. Damages — Measure of Damages. — The measure of damages for the failure to deliver tobacco pursuant to a contract, is the difference, if any, between the contract price and the market price at the time fixed for the delivery.</p>

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

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

<p>1. Fraudulent Conveyances — Consideration.—One heavily indebted may transfer his property without violating sections 1906, 1907 or 1910, Kentucky Statutes, if he does so in good faith, without design to hinder or delay his creditors, for a valuable consideration, and without intention. of becoming insolvent and of preferring one creditor over another.</p> <p>2. Fraudulent Conveyances — Consideration.—A transfer of land by a debtor will not be set aside at the suit of creditors if it appear that the transaction was free from fraud and collusion, for an adequate consideration, and was not intended to prefer one creditor over another.</p> <p>3. Fraudulent Conveyances — Consideration — Burden of Proof.— Where an old man owes a number of debts and transfers his farm for a valuable consideration to another who is not a creditor, the transferee assuming and agreeing to pay all of the indebtedness of the grantor as then known and estimated, the burden is upon the transferee and debtor to show the bona fides of the transaction, and if this be done to the satisfaction of the chancellor, the transfer should-be upheld.</p>

<p>Judicial Sales — Liens—Equity Jurisdiction. — Where there are three debts, owned by different persons, secured by valid liens on real estate, two of which have priority over the third, one of the two prior liens priority of the other, and the junior lien debt only is due, Civil Code, section 694, subsection 3, as amended by act of 1916 (Acts General Assembly 1916, page 656), forbids the decretal sale of the encumbered property to pay all the lien debts, and a court of equity is therefore without -jurisdiction to adjudge its sale for that purpose. It may, however, in such state of case, at the suit of the junior lien holder, adjudge the sale of the property to pay his debt, subject to the prior liens.</p>

<p>1. Principal and Agent — Misappropriation—Recovery.—Where an agent misappropriates money of his principal by paying it upon the debt of the agent or of a third party, the principal and true owner may recover the same if the recipient of the money knew of the agency and of the true ownership of the money at the time and before it was received by him.</p> <p>2. Principal and Agent — Misappropriation—Recovery.—Where one receives money of another without power or authority to make application of the fund in any way or upon any account, he can only hold and preserve the fund for the use and benefit of its true owner, and if he apply it upon a debt, of his own or of a third party without the knowledge or Consent of the principal, and the creditor- receives the money with knowledge of its true ownership, both the agent and the recipient of the fund are-liable to the true owner thereof.</p> <p>3. Principal and Agent — Title Company Agent of Purchaser — Knowledge. — A title company engaged in examining, abstracting and insuring titles, which is employed to examine and insure a given title for a purchaser, is the agent of such purchaser, and the knowledge of the title company with respect to the title is the knowledge of its principal, the purchaser.</p>

<p>1. Appeal and Error — Review'—Verdict in Equitable Action. — Where there is presented in an equitable*aetion a distinct legal issue which either party has the right to have tried by a jury, the verdict of the jury is conclusive and will not be disturbed unless flagrantly against the evidence.</p> <p>2. Equity — Verdict—Conclusiveness.—Where the action is purely equitable and the issue of fact has always been of equitable cognizance, the verdict of the jury is merely advisory and. the chancellor may disregard the verdict and enter judgment in conformity with his view of.the weight of the evidence.</p> <p>3. Appeal and Error — Review—Verdict in Equitable Action — Conclusiveness. — Where the verdict of the jury on a purely equitable issue is sustained by the chancellor, it is entitled to considerable weight and the judgment will not be set aside on appeal unless the verdict is clearly against the preponderance of the evidence.</p> <p>4. Equity — Verdict—Conclusiveness.—In a suit to establish and enforce a trust, the creation and terms of the trust present issues of fact which are purely equitable, as to which the verdict of a jury is merely advisory.</p> <p>5. Trusts — Establishment and Enforcement — Evidence.—In a suit to establish and enforce a trust in personal property, evidence examined and held that the verdict of the jur-y in favor of the trust was not clearly against the preponderance of the evidence.</p> <p>6. Trusts — Trustee—When Liable for Interest. — Where a trustee receives $1,000.00 in gold to be delivered to the children of the trustor when they reach their majority, and soon after the trustor’s death repudiates the trust and uses the trust fund in his own business and for his own profit, he is chargeable with the interest from that time.</p> <p>7. Appeal and Error — Trust—Accounting—Judgment Awarding Interest — Propriety.—Where the evidence showed that shortly after the death of the trustor the trustee used the trust fund in his own business and for his own profit, a judgment awarding interest from the first of January following the death of the trustor will not be disturbed, since any doubt as to the time when the trustee began to use the fund for his own profit will be resolved against him.</p>

<p>1. Criminal Law — Change of yenue — Application for — Discretion.—■ The trial court is vested with a sound discretion in disposing of motions for a change of venue, and such discretion will not be interfered with unless shown by the record to have been abused; and where such motion made by the defendant was overruled and he introduced no evidence except the affidavits accompanying his petition, while the Commonwealth adduced proof by a. substantial number of credible witnesses that there existed no prejudice or feeling against the defendant in the county, the ruling of the court upon that motion will not be disturbed.</p> <p>2. Criminal Law — View by Jury of Place of Crime. — Permitting a jury to have a view of the place where the 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>3. Criminal Law — View by Jury of Premises. — While it,is the duty of the court to swear the officer in charge of the jury while it is viewing the premises, the objection in this case that such oath was not administered is neither sustained by the proof nor by the record, since the latter, immediately following the order sustaining the motion for the view further recites: “The sheriff is sworn to take charge of the jury,” it being presumed that that oath was administered in connection with a view of the premises.</p> <p>4. Criminal Law — Photographs.—It is claimed that a photograph of the defendant was permitted to remain on a table within the bar during the trial and that it had been taken from a rogues’ gallery, and that it was error to permit it to be exposed to the view of the jury, but whether so or not it is not shown that any of the jury saw the picture or knew that it had been taken from a rogues’ gallery, and the fact complained of, if it be true, is not under the circumstances an error.</p> <p>5. Criminal Law — Statement by Commonwealth Attorney. — While it was improper to permit the Commonwealth’s attorney to state to the jury upon the voir dire examination that a life sentence would entitle the defendant to' parole, yet it is doubtful if the error, owing to the wording of the question,/was prejudicial. But if so it can not be considered, under provisions of sec. 281 of the Criminal Code.</p> <p>6. Criminal Law — Argument of Counsel. — The Commonwealth’s Attorney in his closing argument to the jury is alleged to have said: “I believe James Lawler slew- Andrew Nordmeyer”; “I don’t care if you'sentence him for life, you in your experience know what that means;” “If Lawler is given a life sentence he will be out in a few years, robbing and murdering again.” An objection was sustained to the last two alleged remarks, which cured the error (if error it was), while the first remark is clearly permissible, so that this alleged misconduct of the attorney would not be prejudicial, conceding the record to be sufficient to present the alleged error, which is doubtful.</p>

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

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

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

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

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

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

<p>1. Deeds — Construction.—That construction will be given to a deed which carries with it the intention of the grantor as gathered from a consideration of all parts of it, it being the .cardinal rule in the construction of such instruments that all other rules of interpretation shall surrender to the intention of the grantor if that can be gathered from the language of the entire instrument without doing violence to any part of it.</p> <p>2. Deeds — Construction.—Where a deed between parent and child was executed upon the sole consideration of love and affection and the granting clause limited the estate to the grantee for his lifetime and then to his bodily heirs or the heirs of his body, with the h'abendum and warranty clauses containing the expression “to him, his heirs and assigns.” Held, that the grantee took an estate for his natural life with a vested remainder in his children, and that if any child died without issue, his parents inherited from him his remainder interest.</p>

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

<p>Appeal and Error — Interlocutory Order. — An order of tbe trial court overruling defendants’ motion to file an answer, counterclaim and cross-petition, even though, erroneous and making same a part of the record for the purpose of an appeal, is an interlocutory order, and an appeal cannot be prosecuted therefrom to this court until there has been a judgment in the lower court, finally denying the relief sought in the refused pleading.</p>

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

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

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

<p>1. Judgment — Res Judicata. — In the settlement of an estate a judgment allowing a claim, when not appealed from, is final and conclusive, and a reassertion of that claim only for a larger sum at a later date is res judicata.</p> <p>2. Descent and Distribution — Exemptions to Widow and Infants. — ■ A widow and infant children of an intestate are entitled, under subsection 5 of section 1403, Kentucky Statutes, to an exemption of $750 to be set aside to them, free from the claim of creditors and heirs, and such exemption will prevail over all but preferred ' claims.</p> <p>3. Executors and Administrators — Appropriation of Funds to Pay Individual Debts. — An administrator may not appropriate funds in his hands as such to the extinguishment of debts owing to him individually except as provided by law, and no such personal claim will be allowed to prevail over the exemption allowed to the widow and infant children under subsection 5 of section 1403 Kentucky Statutes.</p> <p>4. Descent and Distribution — Exemptions to Widow and Infants.— The exemption allowed under subsection 5 of section 1403, Kentucky Statutes, vests eo instanti in the widow and infant children upon the death of the intestate, and a mere change of residence whereby the widow and infants become non-residents will . not operate to work a forfeiture of the right or property, under such exemption.</p> <p>5. Pleading — Blank Allegation. — A pleading which alleges an indebtedness “to the sum of $...................is a nullity and the pleader is not entitled to recover any sum under such blank allegation.</p>

<p>1. Frauds, Statute of — Contracts Not to be Performed Within a Year. —A contract of hire for a longer term than a year, not in writing, is not enforceable under section 470, subsection 7, requiring such contracts to be in writing and signed by the party to be charged.</p> <p>2. Frauds, Statute of — Effect of Allegation of Deceit in Failing to Sign. — In an action to recover damages for the breach of a contract of hire for a longer term than one year, not signed by the parties, an allegation in the petition that the omission of the defendant to sign the contract was done with the fraudulent intent to cheat, hinder and deceive plaintiff, added nothing to the rights of plaintiff.</p>

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

<p>1. Mortgages — Parol Evidence as to Character of Instrument. — It is a -well established rule in this jurisdiction that a deed absolute upon its face may be shown, by parol testimony, to have been intended as a mortgage; and, contrary to the general rule, this relief may be had in Kentucky without an allegation of fraud, accident or mistake as a foundation therefor.</p> <p>2. Mortgages — Construction of Writing. — When a doubt exists as to whether a writing is a deed or a mortgage, that doubt will be resolved in favor of the debtor, and the writing construed to be a mortgage.</p>

<p>1. Vendor and Purchaser — Bona Fide Purchaser — Notice.—The title of a purchaser for value without notice of a prior unrecorded mortgage is superior to that of the mortgagee, who purchased the property, in an action to enforce the mortgage lien after the deed was recorded, and to that of a'subsequent purchaser who acquired title from the mortgagee’s heirs.</p> <p>2. Officers — Officers De Facto — Acts—Validity.—There is no distinction in law between the official acts of an officer de jure and those of an officer de facto. So far as the public and third parties are concerned, the acts of the one have precisely the same force and effect as the acts of the other.</p> <p>3. Clerks of Courts — Deputy County Court Clerk — Officers De Facto. — A deputy county court clerk, appointed during the first term of the clerk, and who continued to act as such with the knowledge of his principal and with the acquiescence of the public, without reappointment after his principal had entered on his second term, was a de facto officer.</p> <p>4. Acknowledgment — De Facto Deputy County Court Clerk — Power to Take. — An acknowledgment of a deed, taken by a de facto deputy county court clerk, was valid where the contracting parties did not know of the officer’s disability, and there was nothing in tha surrounding circumstances to apprise them of that fact.</p>

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

<p>' Criminal Law — Trial—Bystanders.—Where a jury in a criminal trial was made up of bystanders summoned by the sheriff under the orders and directions of the court, the error of the court in so doing, if one, can not be considered by this court upon appeal, since his action in this regard is not subject to exceptions under the provisions of section 281 of the Criminal Code.</p>

<p>1. Railroads — Spark Arresters — Liability of Company. — Although, sparks from an engine may have set fire to a building, the company will not be liable unless it appears that it failed to have its engines equipped with the best and most approved spark arresters in practical use, or that its engines were negligently operated.</p> <p>2. Railroads — Spark Arresters — Statute.—Under section 782 of the Kentucky Statutes providing that railroad companies shall have their engines equipped with spark arresters, the' company will not be liable for fires, if it appears that the statute was complied with.</p> <p>3. Railroads — Spark Arresters — Instructions.—An instruction that told the jury that if they believed the' fire was caused by sparks from an engine they should find for the property owner, was correctly refused as it made the company liable, although its engines were equipped with sufficient spark arresters and carefully operated.</p>

<p>1. Negligence — Obstruction in Street. — Proof merely that there was a pile of snow in the street in front of certain property when an accident occurred is no evidence that the owner of the property placed it there or was negligent in permitting it to be there.</p> <p>2. Municipal Corporations — Obstruction of Sidewalk. — A city ordinance prohibiting the obstruction of the sidewalk by any beast of burden or vehicle is not shown to have been violated by proof that a street car, at a point where it had the right to move across the sidewalk, was standing on the sidewalk for a few minutes while an employe of the owner in charge of the ear was attempting to replace the trolley on the wire.</p> <p>Negligence — Obstruction of Street by Street Car. — There can be • no negligence in the absence of a duty, and as the defendant was under no duty to furnish plaintiff a safe way around its car stalled for a few minutes on the sidewalk, it was not guilty of negligence in telling her to go around the car.</p>

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

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

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

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

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

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

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

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

<p>1. Judgment — When Binding as to Persons Not Party — Indemnity Insurance Company — Liability of. — E. bad insurance in an indemnity company protecting him against damage on account of injuries inflicted by his horses, unless they were wild or vicious. In a suit by H. against E’. to recover .damages for injuries inflicted by one of E.’s horses, there was a judgment against E. on the ground that the horse that injured H. was wild and vicious. This judgment barred E. from recovering from the indemnity company the amount of damages that H. recovered against him, as the indemnity company had notice of the suit of H.</p> <p>%. Judgment — Persons Bound Although Not Parties to Suit — Effect of Notice of Suit. — When a person is responsible to another and ' is notified of the pendency of a suit and requested to defend it, a judgment, if obtained without fraud or collusion, will be conclusive against him as to every fact established by it, whether he has appeared or not.</p> <p>3. Judgment — Against Insured — When Binding on Indemnity Company and Insured. — Where an insured was sued for damages and called on his indemnity company to defend the suit, which it refused to do, a judgment against him will be conclusively binding on the indemnity company to the extent that it can not open up or relitigate the facts upon which the judgment was founded. And so when the judgment shows that the indemnity company Is not liable, the insured will be barred from recovering from i^t in an action on the judgment.</p> <p>4. Judgment — Conclusiveness of — As to Existence of Pacts on Which it is Based. — A judgment is conclusive of the existence of every material fact appearing in the case' in which it was rendered that is necessary to uphold it. Where a judgment is conclusive between the parties or persons who occupy the attitude of parties it will be equally conclusive between them as to the existence of the essential facts set forth in th© pleadings developed in- the evidence and submitted to the jury in the instructions.</p>

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

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

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

<p>1. Guardian and Ward — Foreign Guardian. — A' foreign guardian has no more control over the land of his ward in this state than a guardian appointed in this state, and before he can compound a debt or demand, or settle or compromise any controversy concerning the lands of his ward, he must obtain the approval of the court.</p> <p>2. Marriage — Presumptions—Legitimacy of Offspring. — Where it appears that a marriage license was issued authorizing the marriage of a man and woman who subsequently lived together for years as husband and wife, and were so recognized by the public, it will be presumed that they were married and that their offspring is legitimate.</p> <p>3. St&tutes^Laws in Force in Virginia.-AOhder section 233 of the Kentucky Constitution all laws in force in Virginia on June 1, 1792, and which are of a general nature' and not local to that state, and not repugnant to the Kentucky Constitution, nor to the laws which have been enacted by the general assembly of this Commonwealth, are in force within this state unless they have been altered or repealed by the general assembly.</p> <p>4. Statutes — Virginia Act of 1785 — Mulattoes.—The Virginia act of 1785 declaring that a person having one-fourth part or more of negro blood shall be deemed a mulatto, is in force in Kentucky by virtue of section 233 of the Constitution.</p> <p>5. 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>Appeal from Daviess Circuit Court.</p>

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

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

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

<p>1. Counties — Office of County Officer. — A town which is not the county seat cannot be required to pay for the furnishing of the office of a county officer, in said town, in the absence of a statute requiring it to do so.</p> <p>2. Counties — Fiscal Courts — Furnishing Office of County Officer.— The fiscal court of a county is a body of limited jurisdiction; it has no power except that conferred on it by law; and it cannot, in the absence of a statute requiring it to do so, be required to furnish the office of a county officer in a town which is not the county seat.</p>

<p>1. Railroads — Personal Injuries — Contributory Negligence. — One- attempting to cross a railroad track in front of an approaching train which he knew to be approaching is guilty of such contributory negligence as to prevent a recovery by him for any injury which he might sustain, er any recovery by his administrator if he should be killed.</p> <p>2. Railroads — Contributory Negligence. — Decedent was traveling afoot on a public street in the suburbs of Maysville. The uncontradicted proof shows that he was running and that he ducked under the gate which was lowered across the street and ran diagonally across it so as to cross in front of the train before it blocked his passage, and that he saw the train as it approached. Held, that he was guilty of such contributory negligence as to prevent a recovery by his administrator, although it be conceded that the railroad company was guilty of negligence in failing to signal for the crossing, as complained of in the petition.</p> <p>3'. Railroads — Personal Injuries — Negligence.—Evidence examined and found that it furnishes no room for the application of the sudden peril doctrine, growing out of an emergency condition in' which one who is injured is placed because of the negligence of another.</p>

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

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

<p>1. Equity — Transfer of Action to Equity. — In an action to recover a sum of money alleged by appellee to have been paid to appellant by mistake in the settlement of accounts covering deliveries of tobacco, begun in equity, the court did not err in ordering the transfer of the action from the ordinary back to the equity docket, and in denying a- trial by jury because the appellant’s counterclaim involved accounts so complicated and of such great detail as to render it impracticable for a jury to intelligently try the case.</p> <p>2. Equity. — When Trial by Jury Guaranty Does Not Apply. — Where the action involves an accounting cognizable-in equity, the guaranty of the Constitution to a trial by a jury does not apply, and section 10, subsection 4 of the Civil Code is constitutional.</p>

<p>1. Sales — Rescission—Reasonable Time — Question for Court or Jury. —While ordinarily the question whether the offer to return a defective machine was made within a reasonable time is for the jury, yet when it plainly appears, from all the facts and circumstances in the case, that the offer was not made within a reasonable time, the question becomes one of law to be determined by the court.</p> <p>■2. Sales — Rescission—Time of Rescission — Waiver.—Plaintiff purchased an automobile truck in November and ascertained that it was defective in January. After having it repaired and making numerous efforts to make it work satisfactorily, he offered to return" it to the seller in April or May. The seller asked him to take and use the machine and promised that the company would make it work all right. The machine was repaired by the company, but within a few days again became defective. Thereafter, plaintiff regularly used the machine in his business and though he frequently complained to the company’s agent, there was no further promise that the company would make it work satisfactorily. In the month of November he tendered the machine to the company. At that .time the rubber was worn off the tires and the machine was in bad condition. Pleld, in view of the character of the machine, its condition when finally tendered to the defendant, and the length of time that plaintiff continued to use it in his business after he knew that it was defective, and that the defects could not or would not be remedied by the defendant, that plaintiff waived his right to rescind.</p>

<p>1. Criminal Law — Submission to Jury. — If there is any evidence, although .circumstantial, connecting the defendant with the crime charged against him, the case should go to the jury, and the verdict will not be disturbed unless flagrantly against the evidence.</p> <p>2. Criminal Law — Argument of Counsel. — The mere statement by the attorney for the Commonwealth in his argument to the jury that certain evidence had not been contradicted is not so obviously an indirect reference to the fact that' the defendant did not testify in his own behalf, even though such evidence could have been contradicted by the defendant alone, as to amount to a violation of section 223 of the Criminal Code, which prohibits any comment upon the failure of a defendant to testify.</p> <p>3. Criminal Law — Personal Identity. — Personal identity is a matter of opinion or belief and a witness who shows himself competent, may give his opinion as to the identity of a person seen at a distance of two hundred or more yards.</p>

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

<p>Contracts — Timber Contracts — Abandonment of. — Under the facts of this case the purchaser of standing timber was prevented from performing his contract by the seller and did not voluntarily abandon it.</p>

<p>1. Injunction — Court May Enjoin a Citizen From Suing a Domestic Citizen in a Foreign State. — Tbe courts of this state have tbe power to enjoin a citizen of tbe state from prosecuting a suit against one of its citizens in tbe court's of another state when tbe facts justify it.</p> <p>2. Injunction — Court May Enjoin a Citizen From Suing a Domestic Citizen in a Foreign State — Facts That Authorize an Injunction.— Before an injunction will be granted tbe facts must plainly show that tbe institution of a suit in tbe foreign state was for tbe purpose of securing to tbe plaintiff some unfair or unconscionable advantage arising either under law-or facts, or that tbe prosecution of tbe suit in tbe foreign state would subject tbe defendant to such great ánd unnecessary inconvenience and expense as to make it appear that tbe foreign forum was selected for tbe purpose of vexatiously harassing the defendant.</p> <p>3. Injunction — Court May Enjoin a Citizen from Suing a Corporation Under Federal Employers’ Liability Act in Another State.— Where a foreign corporation has become incorporated in this state, the courts of this state may enjoin a resident citizen from bringing suit against the corporation under the Federal Employers’ Liability Act in another state.</p> <p>4. Railroads — When Company Becomes Citizen of This State.— Where a foreign railroad company becomes incorporated in this state, under section 841 of the Kentucky Statutes, it thereby becomes a citizen and resident of this state entitled to the same rights and privileges as any other citizen.</p> <p>5. Torts — Transitory Action — Where May Be Brought. — An action to recover damages for personal injury sounds in tort and may be brought at any place where the defendant may be found and served.</p> <p>6. Torts — Law of Place Where Tort Committed Controls No Matter Where Suit Brought. — No matter in what state an action for tort is brought the law will be administered as it would be in the state where the tort was committed.</p> <p>7. Master and Servant — Federal Employers’ Liability Act — Controls Substantive Law of Case. — In an action under the Federal Employers’ Liability Act the court must administer the substantive law of the case according to the provisions of that act.</p> <p>8. Limitation of Actions — Restraint by Injunction Stops Statute from Running. — The statute of limitation does not run during the time the plaintiff is restrained from prosecuting his suit.</p>

<p>1. Infants — Next Friend — Bond for Cost — When May Be Required to Execute. — Under sections 37 and' 619 of tbe Civil Code providing for tbe execution of' a bond for cost by a next friend, tbe court may require a next friend, if insolvent, to execute a bond for cost unless be is allowed to sue in forma pauperis.</p> <p>2. Infants — Next Friend — Bond for Cost — When May Be Required to Execute. — If tbe next friend bas, permission to sue in forma pauperis or is solvent, no bond for cost should be required.</p> <p>3. Infants — Next Friend — -Bond for Cost — Evidence Upon Wbicb 'Court May Require. — Under the Code provisions it would be good practice for tbe defendant to file an affidavit showing tbe reasons why tbe next friend should be required to give a bonfl for coat, but tbe court may require such a bond when it is made to appear by oral or written evidence that tbe next friend, who bas not permission to sue in forma pauperis, is insolvent. ,</p>

<p>1. Mortgages — Lien Upon After Acquired Property. — Where property described in a mortgage, which the mortgagor did not then have, but, which is to be acquired by him thereafter, a lien is created upon the afterward acquired property, as between the parties to the mortgage, but, it does not create a lien upon the afterward acquired property, as to other parties, except, in the instances of the increase of a female animal covered by a mortgage, and the property of a corporation, acquired by it, in the exercise of powers, which are conferred upon it by its charter.</p> <p>2. Mortgages — Lien Upon After Acquired Property. — A mortgage executed by a public service corporation, which is sufficiently descriptive of the afterward acquired property, creates a lien upon such afterward acquired property, in favor of the mortgagee, which is superior to the rights of any claimant of a subsequent lien, or purchaser, where the property composes an integral, indispensable or necessary part of the equipment, machinery or fixtures of the corporation, in the performance of the things, which it is authorized to do, by its articles of incorporation; otherwise, the general rule prevails, which is, that the lien of the mortgagee, where a lien upon after acquired property is provided for, attaches to the afterward acquired property, in the condition, in which it is, when it comes under the lien of the mortgagee, as to prior liens, and the general mortgage does not displace such liens, although they may be subsequent to the general mortgage.</p> <p>3. Mortgages — Lien as Against Subsequent Purchaser. — Before a mortgage will create a lien upon property, as against a subsequent purchaser or lienholder, it must contain such a description of the property intended to be mortgaged, as will give notice to one, who deals with the mortgagor, of the condition of ,the property dealt- with.</p> <p>4. Mortgages — Lien Upon After Acquired Property. — A mortgage will not create a lien upon after acquired property, unless it is mentioned in the mortgage, or referred to, in terms clearly showing an intention to bind it.</p> <p>5. Mortgages — Chattels Attached to Freehold — Liens. — Chattels placed upon real estate by mortgagor, after the execution of the mortgage and which are not mentioned in the mortgage, do not pass under the lien of the mortgage, unless they are so attached, that-they can not be removed, without injury to the freehold, and thereby cause a diminution of the mortgage security.</p> <p>6. Contracts — Liens.—A contract for the sale of machinery, which contains a condition, that the title to the machinery, shall remain in the vendor until it is fully paid for, creates a lien upon it to secure the payment of the vendor’s debt, where the contract shows, that the retention of the title was intended, only, as a security.</p> <p>7. Liens — Subrogation.—Where, at the request of the debtor and upon agreement that he is to have the benefit of the lien of the creditor, one pays a debt for another, the payor is entitled to be subrogated to the lien of the creditor.</p> <p>8. Mechanics’ Liens — Materials.—An ice manufacturing plant is a “public improvement,” within the meaning of section 2492, Ky. Stat., and a material man’s lien to be effective upon such property, must be filed, within sixty days after the last day of the month, within which materials are furnished under the contract for same.</p> <p>9. Corporations — Stockholder’s Liability for Unpaid Subscription.— The liability of a stockholder to creditors for unpaid subscriptions for stock of a corporation, is controlled by the laws of the state, where the corporation is created and exists, and the right of a corporation to pledge its bonds as security for its debts, is governed by the same laws.</p> <p>10. Evidence — Laws of Other States — Judicial Notice. — The courts of this state will not take judicial notice of the laws of another state, and where a right is claimed, under the laws of another state, and the laws of the sister state are neither’plead nor proved, it will be presumed, that the common law, is in force upon the subject in that state, and that the common law of that state is the same as in this.</p> <p>11. Corporations — Liability of Stockholders — Creditors.—Under the common law, a creditor could not hold a stockholder, liable on stock, which had been issued for property, although the value of the property, as agreed upon, was greatly in excess of its real value, and such a transaction 'could be assailed, only, upon the ground of fraud, and in such case, the contract must stand, in toto, or be totally réscinded.</p> <p>12. Corporations — Pledges.—At the common law, a corporation, which was authorized to issue bonds, might pledge them to secure its indebtedness, in a sum, in excess of the debt, and the excess, was not void, if the transaction was in good faith, and not a trick or device to increase its indebtedness by imposing obligations, which it should not assume.</p>

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

<p>1. Highways — Use—Passing Vehicles — Negligence.— One, who in broad daylight drives into the rear of a vehicle, standing still on a public street, is guilty of negligence unless he can show that the collision was due to circumstances beyond his control.</p> <p>2. Highways — Use—Collision — Negligence — Question for Jury.— Where the evidence as to whether defendant’s wagon ran into plaintiff’s' buggy, or .plaintiff’s buggy suddenly backed into defendant’s wagon, was conflicting, the question of negligence was for the jury.</p> <p>3. Trial — Argument—Time—Undue Limitation. — Where, in an action for damages, the amount involved was $3,000.00, and ten witnesses were examined and there was sharp conflict in the evidence on the question of negligence, and the amount of damages depended on the view the jury might take of' plaintiff’s conduct and her numerous statements bearing thereon, an order limiting the time for argument to fifteen minutes on each side was an abuse of discretion.</p>

<p>1. Eminent Domain — Condemnation of Land — Condition Precedent.— A condition precedent to the right to maintain a proceeding for the condemnation of lands, for railroad purposes, under section 835 Ky. Stats., is, that, before instituting the proceeding, the railroad company, in good faith, attempted to acquire the lands from the owner, by contract.</p> <p>2. Eminent Domain — Condemnation of Land. — Lands can be condemned for public use, only, and whether or not the use is a public one, is a question for the court.</p> <p>3. Eminent Domain — Condemnation of Land. — Before lands can be condemned, for the purposes of a railroad company, it must be shown, that the use to which they are to be applied, is a public one, and that they are practically necessary to the railroad company for that purpose.</p>

<p>1. Appeal and Error — Question for Jury. — Where the evidence is conflicting the question is for the jury, and the verdict of a properly instructed jury will not be disturbed upon appeal unless it be flagrantly and palpably against the weight of the evidence.</p> <p>2. Appeal and Error — Limiting Recovery on Counterclaim. — R was not prejudicial error for the court, in its instructions to the jury on a counterclaim, to limit the recovery of the defendant thereon to $512 even though his pleadings fought a greater sum, the jury having returned a verdict for only one hundred dollars.</p>

<p>1. Statutes — Ambiguity.—Section 1 of chapter 139 of the Acts of 1918, repealing and re-enacting section 15 of chapter 24 of the Acts of 1916, and providing that the Auditor shall issue his interest bearing warrants for the unpaid portions of the salaries of public school teachers, is not so ambiguous, uncertain and impracticable in its terms, and in its necessary effect, as to render it void.</p> <p>2. Statutes — Issue of Interest Bearing Warrants to School Teachers — Constitutional Law. — Section 15 of chapter 24 of the Acts of 1916, as re-enacted by section 1 of chapter 139 of the Acts of 1918, and requiring the Auditor to issue interest bearing state warrants for unpaid portions of the salaries of public school teachers, and that the interest thereon shall be paid out of the school fund, violates neither section 184 of the Constitution providing that the common school fund shall be appropriated to the common schools, and to no other purpose, nor section 186 of the . Constitution providing that each county in the commonwealth shall be entitled' to its proportion of the school fund on its census of pupil children for each school year, which shall be used exclusively in aid of its common schools.</p> <p>3. Statutes — Issue of Interest Bearing Warrants to School Teachers —Constitutional Law. — Section 15 of chapter 24 of the Acts of 1916 as re-enacted by section 1 of chapter 139 of the Acts of 1918 requiring the Auditor to issue interest bearing warrants for unpaid portions of the salaries of public school teachers, does not violate section 19 of the Kentucky Bill of Rights providing that no law impairing the obligation of contracts shall be enacted, since plaintiff’s contract was made after the Act of 1918 became effective.</p>

<p>1. Municipal Corporations — Closing Streets for Repairs — Injury to Pedestrians. — A municipality may entirely close a street to travel while same is being repaired or rebuilt, and when a street is so closed a pedestrian injured while traveling thereon through defects therein is without remedy.</p> <p>2. Municipal Corporations — Streets Closed to Travel — Personal Injuries. — Where a city street is being rebuilt by a contractor who has full authority from the municipality to blockade the streets and close same to travel, and such blockade is made by the erection in and across the street of wooden horses of such size and form as to warn travelers exercising ordinary care that the street Is closed to travel, the contractor is not liable in damages for injury occurring through the defective condition of the street. Neither is the municipality liable in such case.</p> <p>3. Municipal Corporations — Streets—Injury to Pedestrian — Contributory Negligence. — It is contributory negligence for a pedestrian to attempt to cross or travel upon a plainly blockaded street, or upon one which, in course of reconstruction, has been excavated in such manner as to be apparently dangerous.</p>

<p>1. Vendor and Purchaser — Lien—Action—Breach of Covenant of Seizin — Pleading—Supplemental Answer — Sufficiency —Judgment —Conclusiveness.—Where in an action to enforce a vendor’s lien, the purchaser pleaded a breach of the covenant of seisin and made the alleged superior title holders parties, who filed an answer disclaiming title, and judgment was rendered dismissing them from the action, it was not error to refuse to permit a supplemental answer to be filed, alleging that the superior title holders, during the pendency of the action, had conveyed title to plaintiff by an unrecorded deed, and that the purchase money had not been paid, which was a cloud on the title, since the alleged superior title holders were concluded by the judgment and the supplemental answer presented no defense.</p> <p>2. Vendor and Purchaser — Lien—Action—Breach of Covenant of Seisin — Interest.—In an action to enforce a vendor's lien on real property, where the purchasers pleaded a breach of the covenant of seisin and expressed their willingness to take and pay for the property if the title was perfected, which was done, it was not error to require them to pay interest on the deferred payments where they suffered no material damage on account of the breach of the covenant, and continued in the peaceable possession of the property from the delivery of the deed.</p>

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

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

<p>1. Bills and Notes — Infirmity in Negotiable Instrument — Notice.— To constitute notice of an infirmity in a negotiable instrument, or defect of title in tbe person negotiating it, the purchaser must have had actual knowledge of the infirmity.or defect, or knowledge of such facts that his action in taking it amounted to bad faith, and this was the common law rule before the enactment of our present Negotiable Instruments Act.</p> <p>2. Bills and Notes — Purchaser of Paper. — In the absence of actual knowledge of such matters by the purchaser, his failure to act as an ordinarily prudent person would have done under the same circumstances is insufficient to make him a purchaser in bad faith, since he is not required to measure his caution by that standard in accepting the paper.</p> <p>3. Bills and Notes — Evidence.—The evidence through which the purchaser’s knowledge of such matters is obtained may be facts aliunde the paper or facts furnished by its face, and where there is no evidence of such facts aliunde the paper, and that furnished by its face is insufficient to establish the required knowledge on the part of the purchaser, it is the duty of the court to so instruct the jury.</p> <p>4. Bills and Notes — Alteration.—An alteration to destroy the obligatory force of commercial paper must, among other things, be a material one, and neither an alteration of the number upon the paper, nor even a retracing of a name which was originally legally subscribed thereto, especially in the absence of evidence showing such retracing of the name was done to restore it after an attempted cancellation or discharge of the paper, are material alterations.</p>

<p>1. Master and Servant — Safe Place — Question for Jury — Evidence-Sufficiency. — In an action for tbe death of a miner, caused by a fall of overhanging slate, evidence examined and the question whether the defendant knew of the defective condition of the roof, or could have known of it by the exercise of ordinary care in time to have avoided the injury, held for the jury.</p> <p>2. Master and Servant — Safe Place — Evidence—Admissibility.—In an action for the death of a miner caused by falling slate, evidence by the assistant mine inspector that the air course, where the accident occurred, was too wide, and that the roof was not safe unless properly cross-timbered, and that he advised the mine foreman of this fact before the accident, and that the foreman, after the accident, notified him that he was unable to timber at the place of- the accident because there was so much timbering to be done, was admissible.</p> <p>3. Master and Servant — Damages—PuDitive Damages — Instruction.— In an action for the death of a miner, an instruction authorizing a finding of punitive damages was not prejudicial, where the jury was authorized to find either compensatory or punitive damages, or both, and to state what its finding was for, and the jury returned a “compensatory verdict in the sum of ($5,500.00) fifty-five hundred dollars.”</p> <p>4. Master and Servant — Assumption of Risk. — In an action for the death of a miner, it was not error to refuse an instruction on assumption of risk, where the deceased was not charged with the duty of inspection and there was no evidence from which it could be inferred that he knew of the defective condition of the roof and appreciated the consequent danger, or that the defective condition and consequent danger were so obvious that an ordinarily prudent person in his situation would have observed the one and appreciated the other.</p> <p>5. Damages — Excessive.—A verdict of $5,500.00 for the death of a miner who was twenty years of age, had an expectancy of 34.22 years and made about $2.25 per day, is not excessive even though the deceased spent his money freely and sometimes drank to excess.</p>

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

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

<p>Appeal and Error — Effect and Scope of Opinion on Subsequent Trial. — When a case is decided by this court all questions raised oii the appeal, or that might have been raised, must be regarded as settled by the opinion although they may not have been noticed in it.</p>

<p>1. Judges — When Liable in Civil Suits for Acts Done in Performance of Duty. — A judicial officer, high or low, can not be made liable . in a civil suit for any act done in the performance of his judicial duties, if he has jurisdiction of the person and subject matter, although his ruling may be the result of mistake of law, error of judgment, or malice, or be done corruptly.</p> <p>2. Contempt — Magistrates—May Punish Witness for Contempt in Failing to Answer Questions. — A magistrate may, under section 1301 of the Kentucky Statutes, punish a witness as for contempt for failing to answer a question that is at all relevant to the subject under investigation.</p> <p>3. Justices of the Peace — Magistrates—Court of Inquiry — Construction of Code. — Section 32 of tfye Criminal Code authorizes a magistrate to hold a court of inquiry for the purpose of ascertaining the offender, if satisfied that a public offense has been committed. Under this section a magistrate has authority to hold a court of inquiry for the purpose of ascertaining the character of the offense and the name of the offender.</p> <p>4. Justices of the Peace — Magistrates—Court of Inquiry — When May be Held. — A magistrate can not hold a court of inquiry for the purpose of annoying or embarrassing people but only when he is satisfied that a public offense has been committed, and' whether he is so satisfied must generally be left to his discretion.</p> <p>5. Justices of the Peace — Magistrates—Court of Inquiry — When May be Held — Scope Evidence May Take. — A magistrate may hold a court of inquiry for the purpose of identifying the offense as well as the offender. In such an inquiry the evidence may take a wide range so long as it is directed to the ascertainment of the .nature of the offense or the identity of the offender.</p>

<p>Deeds — Ambiguous Description — Evidence.—Appellee in - conveying to another a tract of land employed the same ambiguous descriptive ' terms of a line in dispute and adjacent lines as were used in the deed by which he acquired the land, and the .verdict of the jury sustaining his claim that the description in the deed to him included more land than he reconveyed by the same description, is held to be flagrantly against the extraneous evidence introduced to explain the ambiguous terms in the deed by which he sold the land.</p>

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

<p>1. Ferries — Appeal—Amendment on — New Bond. — On the appeal of an application for a ferry franchise the circuit court may permit an amendment to be filed making new parties, and may also permit a new bond to be executed in lieu of a defective bond executed in the county court and may also permit the clerk of the county court to sign copy of judgment filed with appeal.</p> <p>2. Ferries — Application for Franchise — Who Must Be Applicants— Harmless Error. — Under section 1803 of the Kentucky Statutes, the applicants for a ferry privilege must be the owners of the land, or someone who has obtained the ferry privilege from the owners, .but where the application was made in the name of the administrators of the owner of the ferry, who were also his heirs, the defect in parties was not fatal to the proceeding in the county court, as a trial was there had in the same manner as if the applicants had been the proper parties. An error committed in this respect could be corrected by amendment in the circuit court.</p> <p>3. Ferries — Applicant Must Execute Bond — Defective Bond. — Under section 1807 of the Kentucky Statutes the applicant for ferry privilege must execute the statutory bond, but where a bond was executed by the assignees of the applicants it was not error to permit a new and sufficient bond to be executed in tbe circuit court by tbe applicants.</p> <p>4. Ferries — Rate of Tolls to be Charged. — Section 1813 of tbe Kentucky Statutes fixes tbe rate of toll that may be charged and this statute is mandatory. Tbe charge for tbe horse is tbe basis for tbe other rates and when tbe charge for tbe horse is fixed tbe other charges mentioned in tbe statute are to be automatically graded according to this basic rate. Tbe charges for vehicles not mentioned in tbe statute should be fixed by tbe court after bearing tbe evidence.</p>

<p>1. Railroads — Country Grade Crossings. — At a country grade crossing which, is unusually dangerous by reason oí obstructions to sight or hearing and whether lawful or not both the railroad company and the highway traveler must exercise care commensurate with the danger to avoid injury.</p> <p>2. Railroads — Crossings—Instructions.—Instructions examined and held to impose upon both the company and the highway traveler the same degree of care with respect to an unusually dangerous crossing.</p> <p>3. Railroads — Negligence—Personal Injuries — Recovery.—A person placed in a position of peril by the negligence of another may recover for his injury, although he may not, as shown by subsequent events, have adopted the safest course, provided he exercised such care and judgment as might fairly have been expected of a person of ordinary prudence under the circumstances.</p> <p>4. Railroads — Negligence—Evidence.—Whether or not decedent was placed in sudden peril by the negligence of the defendant is a question for the jury where the evidence as to defendant’s negligence in the operation of its train which struck and killed the decedent is contradictory.</p> <p>5. Negligence — Contributory Negligence — Burden of Proof. — The burden is upon the defendant to prove contributory negligence, and where there is no evidence of such negligence except such inferences as can be drawn from the circumstances and such inferences are not conclusive the question is for the jury.</p> <p>6. Railroads — Crossings—Negligence.—At ordinary grade crossings in the country no rate of speed, generally, is negligence, but where the crossing is unusually dangerous the rate of speed may be a material question in determining whether or not a railroad company has exercised ordinary care commensurate with the danger.</p> <p>7. Appeal and Error — Verdict.—A verdict of $10,000.00 for the destruction of the earning capacity of a young man thirty-two years of age, who was earning at the time of his death one dollar and a half a day, held not to be so large as to justify a reversal.</p>

<p>1. Descent and Distribution — Suit to Settle Estate — Infants.—Under tbe provisions of- section 428 of tbe Civil Code, a representative, among others, may bring a suit to settle a decedent’s estate; and the word “representative” as used in the section, according to subdivision 19, section 732 of the Code, is either the personal or real representative, hence an heir may bring a settlement suit as provided by section 428, and if the suit is brought by the guardian representing the heir in which the infants are made defehdants and are summoned and represented by duly appointed guardian ad litem, it will be sufficient.</p> <p>2. Guardian and Ward — Infants—Parties.—A statutory guardian in his own name as such may maintain a suit under the provisions of section 490 of the Civil Code without his infant wards as heirs being made parties, but if they are made parties-defendant, a summons served upon them reciting that the suit was filed by one of the adult defendants instead of by the guardian is not void, especially when that particular suit was the only one pending against the infants and they were duly represented by guardian ad litem,. But if otherwise the judgment would be neither erroneous nor void since the infants were not necessary parties.</p>

<p>1. Quieting Title — Possession of Defendant. — One wbo is not in the actual possession of a tract of land, can not maintain an action in equity under section 11, Kentucky Statutes, to quiet title, but must proceed at law by a suit in ejectment.</p> <p>2. Quieting Title — Pleading.—An answer which pleads certain matters in bar of the right of plaintiff to have his title quieted to a tract of land, but which pleading does not assert or claim superior title in defendant, is not styled a counterclaim and does not pray for affirmative relief, does not make such issue as would justify a court of equity in taking jurisdiction of suck action and determining who is the holder of the superior title.</p>

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

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

<p>1. Criminal Law — Change of Venue — Discretion of Court. — A change of venue in a eriminal prosecution is a matter that addresses itself to the sound discretion of the trial court, and a Judgment of conviction will not be reversed for failure to grant a change of venue, unless it is made patent that such discretion was abused.</p> <p>2. Criminal Law — Change of Venue. — As Kentucky Statutes, section 1118, declare that “not more than one change of venue or application therefor shall be allowed to any person or the Commonwealth in the same case,” after the trial court has overruled an application of the accused for a change of- venue and entered the order in conformity to such ruling, the latter will not be permitted to thereafter withdraw the application and at the same or a subsequent term of the court again make application for a change of venue. To permit such proceeding would open the way for trifling with the courts, which cannot be allowed.</p> <p>3. Criminal Law — Evidence—Competency.—The admission by the trial court of evidence concerning alleged improper relations between the accused and the wife of the person killed by the former, both before and after the wife obtained a divorce from the deceased, was not error, as such evidence was competent to prove a motive on the part of accused for the killing, and the jury were carefully admonished by the court that the evidence could not be considered by them for any other purpose.</p>

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

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

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

<p>1. Municipal Corporations — Street Improvements — Contract for. — ■ As a general rule, a municipal corporation, subject to constitutional restrictions, may do anything, in the way of street improvements, which its charter or other statutes authorizes it to do, but, in contracting for such work, it is limited by the terms of the statutes, under which it proceeds, and the contract must conform to the statute which authorizes the work to be done.</p> <p>2. Municipal Corporations — Street Improvements. — When a statutory provision prohibits a municipal corporation from becoming liable for the costs of street improvements, it can not be made liable contrary to the statute.</p> <p>3. Municipal Corporations — Street Improvements — Abutting Owners. —Where a statute provides, that a municipal corporation can not be made liable for street improvements unless the city can enforce the costs against the abutting property, the statute is held not to apply, in cases where the corporation has authority to contract for the improvements, but no authority to make the improvements at the cost of the abutting property, on account of the nature or ownership of the property, and in such case, the city is liable.</p> <p>4. Municipal Corporations — Street Improvements. — The general rule, in the absence of statutory provisions, prohibiting the improvement of the streets, at the cost of the city, where the city has the right to contract for a street improvement, but has no authority to make the cost a charge upon the abutting property, the city is primarily liable to the contractor.</p> <p>5. Municipal Corporations — Street Improvements. — Where a municipal corporation has authority to contract for street improvements, and is not prohibited by statute from making them at the cost of the city, and makes a contract to have the work done, at the cost of the abutting property, and has authority so to do, but neglects to adopt the proper measures to make the property liable, the city is responsible to the contractor.</p> <p>6. Municipal Corporations — Street Improvements. — A municipal corporation can not be made liable for street improvements, unless it had made a valid and enforcible contract for the improvements, which will bind it for the costs.</p> <p>7. Municipal Corporations — Void Ordinance. — A void ordinance, enacted under the authority of a void statute, can not authorize an' agent of a municipal corporation to enter into a contract upon its behalf.</p> <p>8. Municipal Corporations — Ratification of Contract. — A city can not ratify a contract, which it had no authority, in the first instance to make.</p> <p>9. Municipal Corporations — Contracts.—A municipal corporation can not be bound upon an implied contract for benefits received.</p>

<p>1. Partition — Division of Land. — Where lands are susceptible of division without material impairment of their value, a divison thereof will be had, if desired by the owners, rather than a division of the proceeds after a sale for that purpose.</p> <p>2. Partition — Division Among Joint Owners — Liens.—Lands sought to be divided between several joint owners may first be subjected to the payment of a lien debt, and the judgment may direct that sufficient land be laid off and sold to satisfy the lien debt, and the residue divided.</p> <p>3. Partition — Joint Owners — Bents.—Under the facts of this case a joint owner of land is not entitled to recover rents of a widow in possession to whom dower has not been assigned, it appearing that the widow used and cultivated no more of the land than she was reasonably entitled to hold as dower.</p> <p>4. Partition — Division of Land — Liens.—A lien note, representing purchase money, upon lands of a decedent sought to be divided should be properly proven when presented; but if this is not done the proper procedure is to raise the question in the trial court by motion for a rule to require verification. The question can not be raised by demurrer and is waived by pleading to the merits.</p>

<p>1. Cancellation of Instruments — Exhibits—Pleading—Demurrer.—In an action brought in equity to obtain the cancellation of certain deeds, certified copies of which, properly identified, were filed with and made a part of the petition, and the recitals of which contradicted the allegations of the petition and could be given no other legal effect than such as would destroy the plaintiff’s right to the relief sought, the action of the circuit court in .sustaining a general demurrer to the petition was not error.</p> <p>2. Heading — Exhibits.—An exhibit can never supply the omission of an allegation’essential to the statement of a cause of action. It may, however, aid a defective allegation, or even control or destroy a positive one in contradiction of it. For if an exhibit referred to and filed contradicts an allegation of the pleading, the exhibit will control the allegation, unless the exhibit be expressly impeached or explained by the facts stated in the petition.</p> <p>3. Husband - and Wife — Cancellation of Instruments — Estoppel.— Where a woman at the time sui juris, by executory contracts in writing made before marriage, sold her interest in the mineral rights in and under two tracts of land, and after marriage, in performance of the covenants of the executory contracts, was joined by her husband, then an infant, in the execution of deeds conveying the same mineral rights to the assignees of the vendees in the executory contracts; in an action subsequently brought in equity by the wife for the cancellation of the deeds and recovery of the mineral rights on the ground that both deeds were rendered void by the infancy of her husband, it was properly adjudged by the circuit court that she was estopped by the executory sales of the mineral rights, made before marriage, to claim the relief prayed.</p> <p>4. Husband and Wife — Estoppel.—The doctrine of estoppel is founded on the broad and just rule that one shall not defeat his or her voluntary act, or even deny its validity, to the prejudice of another. A married woman may be estopped the same as a single woman or a man, where permission of the assertion of her claim would operate as a fraud.</p> <p>5. Estoppel — Pleading in Avoidance. — While it is the general rule that an estoppel must be pleaded, this rule does not obtain where all the facts out of which the estoppel grows already appear in a pleading of the party against whom or in whose favor the estoppel is urged.</p>

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

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

<p>1. Master and Servant — Fellow Servants — Relation of Superior and Inferior Servants. — Under tbe master and servant rule prevailing in this state, an inferior employe is not a fellow servant of a superior employe.</p> <p>2. Master and Servant — Injuries to Servant — Death—Negligence of Superior Servant. — The master is not liable for a mere injury to an inferior employe caused by the negligence of a superior employe, unless the negligence be gross, but if death result the master is liable even though it was caused by the ordinary negligence of a superior servant.</p> <p>3. Master and Servant — Death of Servant — Negligence of Superior Servant — Evidence—Sufficiency.—In an action against the master for the death of an inferior servant, alleged to have been caused by the negligence of a superior servant, evidence examined and held sufficient to make it a question for the jury whether the servant causing the injury was superior in authority to the deceased.</p> <p>4. Master and Servant — Death of Inferior Servant — Negligence of Superior Servant — Evidence—Sufficiency.—In an action against the master for the death of an inferior servant, alleged to have been caused by the negligence of a superior servant, evidence examined and the question of negligence held for the jury.</p> <p>5. Removal of Causes — Negligence of Local Defendant — Insufficiency of Evidence. — Where the trial court correctly ruled that the evidence of the local defendant’s negligence was sufficient to take the case to the jury, the non-resident defendants were not entitled to a removal of the cause to the federal court on the - ground that no case was made out against the local defendant.</p> <p>6. Removal of Causes — Verdict—Collusive Joinder. — A verdict in favor of a local defendant alleged to have been fraudulently joined with non-resident defendants, is not conclusive of a fraudulent joinder.</p> <p>7. Removal of Causes — Separable Controversy — Erauduent Joinder.— The motive of plaintiff in joining a resident employe with his non-resident employers in a negligence suit' is not material on the question of removal to a federal court, where a joint cause of action against all the defendants was properly pleaded and supported by sufficient evidence to make their joint liability a question for the jury.</p>

<p>1. Boundaries — Evidence—Sufficiency.—In an action to enjoin trespass, evidence, as to tlie location of a disputed boundary line, held to sustain tbe chancellor's findings.</p> <p>2. Trespass — Damages — Finding— Allowance — Excessiveness. — ■ Where, in an action to enjoin trespass and to recover damages, it appeared that defendant had entered upon the land of plaintiff, dug four post holes, tore down and removed some fencing, cut down one shade tree and injured another, an allowance of $50.00 damages was not excessive.</p>

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

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

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

<p>1. Arbitration and Award — Validity of Award. — Arbitrators must be disinterested and impartial, but the rule does not. go to the extent of invalidating an award'where the arbitrators are merely zealous for what they conceive to be the rights of the parties.</p> <p>2. Arbitration and Award — Qualification of Arbitrator. — One otherwise qualified to act as arbitrator between an insurance company and the insured, is not disqualified by the fact that he does not live in the same community or town in which the fire occurred, but lives some fifty or one hundred miles away in a town of like character and size and is acquainted with the conduct of like business. „</p> <p>3. Arbitration and Award — Evidence.—Arbitrators can not hear extraneous evidence in the absence of the parties to the controversy, or of timely notice of intention to hear evidence without violating the general rule; but where one of the parties to the controversy selects as arbitrator a material witness and this arbitrator gives evidence before the Board of Arbitration, the board may allow a witness on the other side of the controversy to give extraneous evidence without committing such prejudicial error as would void the award.</p> <p>4. Equity — Submission of Issue to Jury. — "Where the question is one peculiarly cognizable in equity, the chancellor may determine it . without the intervention of a jury, and if an issue out of chancery be granted, in such case the verdict of the jury will be advisory only.</p> <p>5. Trial — Motion to Transfer Action. — Where a case is properly on ■ the equity docket and is fully prepared by taking all evidence in depositions before a motion is made to transfer the cause to the common law docket for a trial of a question of fact, the motion to transfer is properly overruled.</p>

<p>1. Criminal Law — Taking Indictment and Former Verdict to Jury Room. — While it is improper to permit a jury to take to its room the indictment with a former verdict' written thereon, yet the error is not such a material one as to authorize a reversal therefor. But if the court’s attention is called to the fact he should prevent the verdict from going to the jury room, either by withholding the indictment from the jury or obliterating the verdict.</p> <p>2. Criminal Law — Examination of Witnesses — Appeal and Error.— Although the court may be in error in refusing to permit a witness to answer a question, still the error, if any, can not be considered on appeal without an avowal stating what the witness would have answered. ' - •</p> <p>3. Criminal Law — Review.—Since the enactment in 1910 of the amendment to section 281 of the Criminal Code, error of the court in its decision upon motion for a new trial in a criminal case may be reviewed by this court, and if the verdict is palpably and flagrantly against the evidence it will be reversed on that account, although the testimony furnished a scintilla of proof sufficient to submit the c.ase to the jury.</p>

<p>1. Wills — Contest—Burden of Proof. — Where the due execution of a paper, offered for probate as a will, is proved, and the paper is not irrational in its provisions, or inconsistent in its structure, language, or details, with the sanity of the testator, the burden of showing that the testator was not of sound mind shifts to the .contestants.</p> <p>2. Wills — Contest—Testamentary Incapacity — Question for Jury.— Where in a will contest the evidence on the question of testamentary incapacity was conflicting, the question was for the jury.</p> <p>3. Wills — Contest—Undue Influence — Insane Aversion — Evidence— Sufficiency. — Where in a will contest the evidence of undue influence and insane aversion was sufficient merely to excite suspicion, and did not carry with it that quality of proof sufficient to induce conviction, there was no error in refusing to submit these questions to the jury.</p> <p>4. Wills — Revocation—Revival.—On June 12, 1909, testator executed a will, devising the upper half of his home farm to Jincy Adams and the lower half to Charity Spradlin, for and during their natural lives with remainder to their children. On March 23, 1912, he married and on March 27th he executed a second will. By item one, he provided, “In a former will I have disposed a portion of my real property to the heirs of John Q. Adams, the heirs of Charity Spradlin, and I desire to hold.good and direct and that the court shall record the will containing these transfers.” He then devised the remainder of his property to his wife. Held, that although the first will was revoked by the testator’s marriage, the second will was so coupled with the first will that it should be recorded as a codicil, and therefore sufficient under section 4834, Kentucky Statutes, to revive the first will.</p> <p>5. Wills — Revocation—Revival—Subsequent Revocation. — After executing the first and second wills above referred to, the testator and his wife were divorced and compromised their property rights. Thereupon, he executed a third will, providing as follows: “Being of sound mind and remembering that I have heretofore executed a writing to Lina Spradlin, "which is lost and which, after my death, might be termed a will, and not wanting it to give any trouble to my estate, or for the said Lina Spradlin to share in my estate, I now make and declare this to be my last will and testament, and direct and will that the said Lina Spradlin take nothing from my estate under said writing or otherwise, and I hereby revoke and cancel said writing or will.” The first'will was delivered to a bank and was in the possession of the bank at the time of testator’s death. Just prior to his death, the testator executed a fourth will, devising certain town property and making no reference to his farm land. Held, in view of all the circumstances and of the language employed, that the testator intended, by his third will, to revoke only so much of his second will as applied to his wife, and that the third will did not have the effect of revoking that clause of the second will by which the first will was revived.</p>

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

<p>Evidence — Circumstantial Evidence. — A • verdict of conviction may be rested alone on circumstantial evidence when it establishes with reasonable certainty the guilt of the accused.</p>

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

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

<p>1. Intoxicating Liquors — Actions for Penalties. — In a penal action ■brought by the Commonwealth to recover of an express company a fine for the violation of a statute, in order to state a cause of action, the petition must contain substantially the same allegations of fact that would be required in stating the same offense in an indictment under the statute.</p> <p>2. Intoxicating Liquors — Carrying Into Prohibited Territory — Record. —Where in such action the offense alleged was (1) failure of the carrier to keep tke book required of it by section 2569b, subsection 3, Kentucky Statutes, containing truthful statements and showing the receipt and delivery of liquors; (2) failure to keep such book open to public inspection during business hours of the carrier; and that it refused the request of a person named to be permitted to inspect the book, the action of the trial court in sustaining a general demurrer to the petition was not error. In order to state a cause of action the petition should have alleged the receipt and delivery of intoxicating liquors by the carrier requiring the keeping of such book; and that the request of the person named to be permitted to inspect the book was made to and refused by the carrier during business hours. As these allegations were not made, the petition was fatally, defective.</p>

<p>1. Intoxicating Liquors — Actions for Penalties — Carrying Into Prohibited Territory — Record.—Where in a penal action brought by the Commonwealth to recover of a. carrier a fine for violating the provisions of subsection 3, section 2569b, Kentucky Statutes, the offense alleged in the petition is that the carrier received and unlawfully delivered a certain package of intoxicating liquor to the consignee, “without entering or causing to be entered upon a separate book kept for that purpose, truthful statements of the amount and kind of liquor received, the name and address of the consignor, the name and address of the consignee, the purpose for which said liquor was intended to be used as stated on the outside of the package containing such liquor, the date when received, the date when delivered, and by whom and to whom delivered,” the facts thus alleged properly stated an .offense under the statute; hence the action of the trial court in overruling a general demurrer to the petition was not error.</p> <p>2. Intoxicating Liquors — Carrying Into Prohibited Territory — Record. —As on the trial there was evidence conducing to prove that the carrier’s agent delivered to the consignee a package of liquor without entering in the book kept íór that purpose, the quantity or kind of liquor delivered, or the date of such delivery, the case was properly allowed to go to the jury and their verdict finding the carrier guilty was authorized by the evidence.</p> <p>3. Intoxicating Liquors — Carrying Into Prohibited Territory. — Where it is charged in the petition or indictment that the carrier in a single delivery of intoxicating liquor in prohibited territory, violated all, or part or only one, of the provisions of the statute, proof of its violation of any number, or only one, of the provisions alleged to have been violated, would constitute the offense denounced by the statute and subject the carrier to the penalty prescribed therefor.' But whether all, several or only one of the provisions of the statute is disobeyed in a single delivery of such liquors, it will constitute but one offense growing out of the one delivery.</p>

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

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

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

<p>1. Public Lands — Entry and Survey. — The survey, wbicb will render void a subsequent entry, survey or patent, must be a valid survey.</p> <p>2. Public Lands — Conflicting Entries. — An entry upon a junior patent, wbicb laps upon a prior survey of another does not give tbe junior patentee possession of tbe lap, unless bis entry is made within tbe lap.</p> <p>3. Adverse Possession — Champertous Possession. — A possession, which renders a sale and conveyance of tbe land, champertous, must b,e an adverse possession, wbicb, if continued for tbe statutory period, will ripen into title.</p> <p>4. Public Lands — Possession.—One having a valid survey of unappropriated lands, and entering thereon, with the intention to possess the lands to the extent of the boundaries of the survey, is in actual possession of the entire boundary.</p> <p>5. Public Lands — Equitable Assignment. — A sale and conveyance of the land, embraced within a valid survey, is an equitable assignment of the. entry and survey, to the vendee.</p> <p>6. Public Lands — Record of Survey. — The record of a survey of vacant and unappropriated lands, made by the county surveyor, upon the book, upon which he is required, by law, to keep the record of such surveys, in the absence of any evidence showing its invalidity, will be presumed to be-the record of a valid survey.</p> <p>7. Public Lands — Survey and Patent. — A survey and, a patent, without a preceding entry, is void, where preceding the survey and patent, an entry had been made upon the land by another.</p> <p>8. Public Lands — Entry, Survey and Patent. — The statute, which de-, dares an entry, survey or patent of land, which has been previously entered, surveyed or patented to be void, was not designed to make void, the patent of one, who was, lawfully, entitled to obtain a patent, but, its purpose was to prevent interference, by intruders, upon the lawful entries, surveys and patents of others.</p>

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

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

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

<p>J!, Homicide — Self Defense — Suspension—Instructions.—On a trial for homicide, evidence examined and held sufficient to sustain a clause in the self defense instruction, qualifying the right of self defense.</p> <p>8. Criminal' Law — Continuance—Postponement—Absent Witness— Error. — It was not error to. refuse to pass a case to enable an absent witness to testify to a discrepancy between the evidence of two witnesses on the trial and their evidence on the examining trial, where the discrepancy was testified to by three other witnesses, and the discrepancy was so slight as not to amount to a material contradiction.</p>

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

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

<p>1. Champerty and Maintenance — Defense of Does Not Apply to Judicial Sales. — The defense of champerty does not apply to judicial sales and a sale made by a trustee in bankruptcy under orders and directions of the bankrupt court is a judicial sale -within this rule. But such judicial purchaser will obtain no better or more enforceable title than the one held by the party whose interest is sold at the judicial sale, and if that title was champertous and non-enforceable in his hands, neither will the one obtained by the judicial purchaser be enforceable for the same reason.</p> <p>2. Appeal and Error — Law of the Case. — The law as announced upon the first appeal becomes the law of the case as betw'een parties and privies in all subsequent trials of the same case.</p>

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

<p>1. Mines and Minerals — Oil and Gas Leases — Forfeiture.—Under an oil and gas lease, whereby the lessee agreed to begin a well on the premises within one year, “or pay at the rate of 25c an acre per year, for each additional year such beginning is delayed,” the lessor was not entitled t'o forfeit the lease for the failure to develop the premises until he first demanded that the lessee begin the development and gave him a reasonable time in which to do so.</p> <p>2. Mines and Minerals — Oil and Gas Leases — Rent—Payment—Time. —In such a lease where no operations were begun the second year, the tender of the stipulated rental in the manner provided by the contract, before the expiration of the second year, was in time to avoid a forfeiture.</p> <p>3. Mines and Minerals — Oil and Gas Leases — Subsequent Leases— Invalidity. — Where the same lands are covered by a prior oil and gas lease, that is valid and in force, a subsequent lessee of the same lands for the same purposes, with both actual and constructive notice of the prior lease, acquires no rights as against the prior lessee.</p> <p>4. Mines and Minerals — Oil and Gas Leases — Subsequent Leases— Relief. — The owner of an oil and gas lease is entitled to have his title to the oil and gas quieted as against the owner and the subsequent lessee with notice, and to have them enjoined from interfering with his right to enter on the land and remove the oil.</p>

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

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

<p>1. Criminal Law — Evidence.—Evidence examined and held sufficient to support a verdict of guilty.</p> <p>2. Criminal Law — Evidence.—It was not reversible error for the Commonwealth to call a witness and ask his name, place of residence and the further question, “I will ask you to look at John and Fred Crowe and state if you have ever seen either one of them before,” where the objection was sustained and the witness was not permitted to answer.</p> <p>3. Criminal Law — Evidence.—The mere fact that the Commonwealth’s attorney intended to elicit evidence tending to show that the defendant had been guilty of other crimes, did not prejudicially affect the rights of appellant where no such evidence was introduced or allowed by the court.</p> <p>4. Criminal Law — Argument of Counsel. — While it is reversible error for the prosecuting attorney, in his closing argument, to declare his individual opinion and belief of the guilt of the defendant, not expressly stated to be based upon the evidence, no such error occurred upon the trial of this case where the court admonished the jury that they could consider the evidence of the witnesses only, and the Commonwealth’s attorney corrected his statement to “I believe from the testimony” that certain inferences may be drawn.</p>

<p>1. Contracts — Performance—Estoppel.—Where a party to a contract •requests and directs the other to perform the contract in a certain way, and the latter accedes to the request and performs it as directed, the former is estopped to deny, that the work contracted for, was not performed in accordance with the contract, if the contract was not one, which the law requires to be in writing.</p> <p>2. Attachment — Evidence—Burden of Proof. — Where an attachment is obtained upon the ground, that the defendant has no property in the state, subject tó execution or not enough to satisfy the plaintiff’s demand, and the collection of the demand will be endangered by a delay in obtaining a judgment and a return of no property found, and the defendant does not deny that he has no property subject to execution or not enough to satisfy the claim, but does deny, that the collection of the demand will be endangered by delay in obtaining a judgment or a return of no property, a prima facie case exists for plaintiff and the burden of proof is upon the defendant.</p>

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

<p>1. Street Railroads — Abandonment of When Unprofitable to' Operate. —Where a street railway company that has secured permission to use the streets and highways for the construction of its road and operation of its cars for a specified time cannot continue its operation as a whole under good business management except at a loss it may be permitted to remove its tracks and equipment and abandon the road upon restoring the highways, if there is no contract obligation upon the part of the company to operate its road for a specified time.</p> <p>2. Street Railroads — Constitutional Law — Cannot be Compelled to Operate at Loss.- — To require a street railway company to operate its road at a loss in the absence of a contract obligation to do so would be in effect taking private property for public use without compensation in violation of section 13 of the Constitution.</p> <p>3. Street Railroads — Abandonment of Not Allowable in yiolation of Contract. — Where there is a contract obligation upon the part of a street railroad company to operate its road for a specified time it may be compelled to do so for the time specified, although at a loss.</p> <p>4. Street Railroads — Permission to Use Streets Does Not Constitute Binding Contract to Operate for Time Specified. — Where a city by ordinance granted to a street railway company the privilege of occupying the streets in the construction and operation of its road for a specified time the grant did not amount to a contract obliging the company to operate its road at a loss for the time specified.</p> <p>5. Street Railroads — Performance of Service Under Permissive Grant to Occupy Streets. — Where a public utility corporation undertakes- by virtue of permissive grants the performance of public service, this undertaking, when it can be performed under efficient management with fair profit, carries with it the duty of performing the service in such a way as that the public interest will be served.</p> <p>6. Street Railroads — Conditions of Permissive. Grant Cannot .Be Broken by Either Party. — Where a street railway company secures by ordinance permission to occupy, tbe streets of the city, neither party should be permitted to break or alter the conditions of the- grant to the prejudice of the other or the public. Both parties must fulfill the purpose of the grant in the manner and for the period of time specified. , t</p> <p>7. Street Railroads — Abandonment of — Receivership.—When it is doubtful whether a street' railway company that was under no contract obligation to do so can operate its road at a reasonable profit on account of mismanagement or dissension, the court should put the road in the hands of a receiver for the purpose of testing its ability to be operated except at a loss</p>