Volume 183 — Kentucky Reports

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

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

<p>1. Escheat — Enforcement.—A corporation may hold real estate for a longer period than five years, although not devoted to legitimate corporate use, if it is held in anticipation of its future use for legitimate corporate purposes, with an ever present intention to devote it to such use.</p> <p>2. Escheat — Enforcement.—Upon proof by the Commonwealth in an action to escheat real estate, that it has been held for longer than five years, without having been devoted to use for legitimate corporate purposes, the burden of proving that it is being held for such future use with an ever present intention of so using, shifts to the defendant."</p> <p>3. Escheat — Enforcement.—The intention with which real estate is being held by- a corporation' beyond five years, as a necessary ingredient in the offense that will escheat the property, is provable not alone by the minutes of the directors’ meeting but by any evidence that has probative value of the defendant’s real intention in holding it.</p> <p>4. Escheat — Enforcement—Evidence.—The uncontradicted evidence of the defendant’s president of its intention and purpose with reference to the lot attempted to be escheated in this action held to be sufficient to avoid an escheat.</p>

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

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

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

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

<p>1. Statutes — Construction—Intent.-^In the construction of statutes the intention of the legislature in enacting them must prevail, and such intention is to be gathered from the words which the legislature employed. If those words are distinct, plain and unambiguous they must be given effect, although such construction might curtail the application of the statute so as to partially defeat the general purpose which the legislature had. in view, since It is the duty of courts to construe that which is written and not to amend, change or alter a plainly written statute so as to make it accomplish some supposed purpose of the legislature in enacting it.</p> <p>2. Insurance — By-Laws Attached to Application — Evidence.—Section 679 of the Statutes requiring applications, by-laws and other documents (or copies thereof) referred to in a policy of insurance to be attached thereto and forbidding the introduction of such documents as evidence in any action upon the policy unless so attached does not apply when the policy makes no reference to such application, by-laws or other documents.</p> <p>3. Insurance — By-Laws Attached to Application. — Neither do the provisions of section 656 of the Statutes require such documents to be either attached to or contained in the policy, since that section treats of and relates only to rebates.</p>

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

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

<p>1. Appeal and Error — Depositions—Failure to Except to. — Evidence in a deposition, even though incompetent and to which objections were entered when given, can not be disregarded upon appeal where no exceptions were filed and the competency was not presented or passed upon in the lower court.</p> <p>2. Appeal and Error — Finding of Chancellor. — The chancellor’s judgment upon a question of fact will not be reversed where the evidence is not convincing and the mind is left in doubt.</p>

<p>Appeal and Error — Omissions in Record — Effect.—Where portions of the evidence, bearing upon the-questions involved, are omitted from the record on appeal, the judgment will be affirmed.</p>

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

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

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

<p>1. Judgment — Setting Aside Default Judgment. — The setting aside of a default judgment, at the same term, at which it is rendered, is a matter, within the judicial discretion of the court, and is not governed by the provisions of the Code, which relate to' the granting of a new trial, after the term, at which the judgment was rendered, upon the grounds of casualty or 'misfortune.</p> <p>2. Judgment-Setting Aside Default Judgment. — The principle which should guide the judicial discretion of the court,, in setting aside a default judgment, at the term at which it was rendered, is the determination as to whether the ends of justice will be subserved, unless the laches of the applicant have been such as will in justice close the ear of the court.</p>

<p>1. Exemptions — Specific Articles of Personalty. — In the absence of a statute creating exemptions, all property is subject to execution, hence, the right of the debtor to an exemption must be determined by the statute creating the exemption; and when specific articíes of personal property are made exempt by statute from sale for tlie payment of a debt or debts of tlie owner, tbe courts are not , authorized, by construction, to extend {he exemption to other articles or different property.</p> <p>2. Exemptions — Corn and Tobacco — Income Earned by Labor.— Neither corn nor tobacco produced by the debtor or his family is “income earned by labor,” within the meaning of section 1697, Ky. Statutes, and is not exempt from coercive sale for the payment of the latter’s debts, except when the debtor has not provender on hand suitable for the maintenance of his family or live stock, as in such case the corn or tobacco, or a sufficiency- of it for that purpose, may be exempted in lieu of the necessary provender not on hand.</p> <p>3. Exemptions — Income Earned by Labor. — The “income earned by labor,” contemplated by section 1697, Ky. Stats., is an income which' can be measured in denominations of money, per month,' the receipts being .similar in character to such as are received from a salary or wages, although not necessarily payable at fixed times or in fixed amounts, but at the times and in the amounts the proceeds of labor may be received, as ini the case, of proceeds from the occupation of a mechanic and the like.</p>

<p>1. Counties — Fiscal Courts — Records.—A fiscal court can speak or contract only through its records properly made.</p> <p>2. Counties — Fiscal Courts — Road Bonds. — After road bonds have been issued and sold upon a 4 per cent interest basis, the fiscal court is without authority to exchange new 5 per cent bonds for the old issue of 4 per cent bonds and thus increase the interest rate, without consideration.</p> <p>3. Counties — Fiscal Courts — Contract to Sell Road Bonds. — The mere fact that the members of the fiscal court verbally directed salesmen to tell prospective bond purchasers that the 4 per cent bonds might be exchanged for 5 per cent bonds if the county later decided to issue 5 per cent bonds, was ineffectual to confer authority upon the salesmen to make such contract, in the absence of a properly entered order of the fiscal court.</p>

<p>1. Deeds — Constructive Notice. — A recital in a deed of record that the grantor is selling only a homestead in the lands, is constructive notice to all subsequent purchasers, and precludes their claiming the fee simple title as innocent purchasers.</p> <p>2. Marriage — Marriage of Slaves — Legitimacy.-—Society as well as the statutory law of this state recognized the validity of customary marriages among slaves before the civil war, and where a colored man -and woman, by the custom of times, were recognized as husband and wife; lived as such, and raised a family, 'the issue of the marriage will be regarded as legitimate and entitled to inherit from their ancestors, even though no certain or specific form of marriage ceremony was performed and no witness testifies to having witnessed the ceremony.</p> <p>.3. Homestead; — Abandonment of by Widow — Deeds.—A widow who sells and attempts to1 convey her homestead right in the lands of her deceased husband, abandons the same and her grantor takes nothing by the deed.</p> <p>4. Homestead — Innocent Purchaser. — One is not an innocent purchaser of land for value who knows the fact that there are unknown heirs, or who is confronted by a deed in his chain of title specifically reciting that the widow’s homestead right alone is conveyed.</p>

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

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

<p>1. Insurance — Life Insurance — Forfeiture—Waiver.'—■'Where a check for a premium was accepted on the condition that if it was not paid on presentation the policy should lapse, and the company treated the policy as lapsed only on the condition that the bank, on which the check was drawn, was not in error in refusing payment, it waived its right to insist on the forfeiture if, as a matter of fact, the payor had in the bank sufficient funds to meet the check, and the bank was therefore in error in refusing payment.</p> <p>2. Appeal and Error — Findings by Court — Conclusiveness.—Where in a common law action, the law and facts are submitted to the court, its finding of fact will be given the same effect as the verdict of a properly instructed jury, and will not be reversed unless flagrantly against the evidence.</p> <p>3. New Trial — Newly Discovered Evidence — Sufficiency.—A new trial-for newly discovered evidence was properly refused where the evidence was mainly cumulative and not of such a decisive character as to render a different result reasonably certain.</p> <p>4. New Trial — Grounds—Surprise—Necessity for Objection at Trial. —A reversal will not be granted on the ground of surprise, where there was no objection to the evidence alleged to constitute surprise, and no motion was made for the postponement or continuance of the case.</p>

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

<p>1. Elections — Action to Set Aside — Policy of the Courts. — It is the policy of the courts to uphold the validity of elections, and before they can be set aside for fraud or other invalidating facts the proof should be clear and conclusive of the existence of such ■ facts; and notwithstanding there may be proof of the deposit of fraudulent votes in the ballot box, if the number of such votes can be ascertained from the evidence, and it can further be determined for whom they were cast, they will be deducted from the total vote received by the person or measure for which they are cast, rather than to declare the election void.</p> <p>2. Elections — Bribery—Evidence.—The fact that a worker for a candidate in the election was seen to have distributed money among five or six voters who it is claimed thereafter voted the second time is only evidence of bribery and fraud and is not of itself sufficient to throw out the vote of that precinct in the absence of . some testimony to show that such voters were improperly influenced to and did vote as a result thereof, especially so as to another candidate in no way connected with the suspicious circumstances.</p> <p>3. Elections — Challengers and Inspectors. — Neither the fact that a challenger or inspector is a non-resident of the precinct, although a resident of the county, nor the further fact that after the polls closed the ballot box was taken to a nearby place where the votes were counted and where there was both light and heat, neither of which was obtainable at the polling place, is sufficient to render the election at that precinct void so as to require that it be en-> tirely rejected.</p> <p>4. Elections — How Conducted.- — By section 147 of the Constitution and Statutes enacted pursuant thereto, elections are required to be by secret ballot, and if the legal requirements for that purpose are violated to such an extent that as many or more than twenty per cent, of the voters cast their votes openly without being sworn as required by law, the election would have to be declared void.</p> <p>6. Elections — -When Contest Will Fail. — Notwithstanding it appears from the proof that the number of illegal votes alleged were cast, still if contestee has a majority, after deducting such votes, relief will be denied the contestant and his petition will be dismissed.</p>

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

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

<p>1. Master and Servant — Appliances—Res Ipsa Loquitur. — The doctrine of res ipsa loquitur is not applicable between master and servant unless there is other evidence, however slight, of some negligence of the master; nor would it apply even then where the injured servant was operating and had charge of the defective appliance or contrivance which produced the accident, and whose duty it was to inspect or repair or notify the master of the defects.</p> <p>2. Master and Servant — Negligence—Appliances.—Before a master can be held liable to his servant there must be some evidence to show negligence on his part, and there can be no negligence without the violation of some duty. Where it is the duty of the servant to inspect and repair the machinery, or notify the master of the defects, the latter is not in fault until he has received such notification, and if the servant fails to inspect or repair or notify the master, and continues to work, he will be deemed to have assumed the risk and can not recover from the master for any injuries sustained.</p> <p>3. Master and Servant — Assumption of Risk. — A servant was employed to operate a stationary boiler and engine, having complete charge of it. He was an experienced man and had operated the machinery for seven or eight years. Under the terms of the employment he had complete control of it and it was his duty to repair it or to notify the master of necessary repairs. No such notification was given and the boiler exploded, killing the servant. Held that the master was not liable, since the risk was assumed by the servant.</p>

<p>1. Pleading — Amendments.—Where a defendant styled his pleading "amended petition” by which a new defendant was brought into the action by summons thereon, the responsive pleading of the latter styled “Answer, Counterclaim and Cross Petition” although as a cross petition directed against other defendants, will be treated as an adverse pleading to the claim to the land in dispute of the defendant, who styled his pleading an “amended petition.”</p> <p>2. Adverse Possession — Limitation of Actions — Pleading.—When limitation or adverse possession is pleaded as a bar to the title asserted by an adverse party, it must be traversed and if any disability is relied upon to avoid the running of the. limitation statute, it is new matter and must be pleaded; and the rule applies to married women no less than other persons laboring under disability.</p> <p>3. Adverse Possession- — Finding of Chancellor. — Appellee’s claim of title by more than thirty years’ adverse possession of the land in dispute and her plea of limitation against appellant’s claim of legal title thereto, not having' been put in issue, the judgment ol the chancellor upholding her claim will not be reversed.</p>

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

<p>1. Trespass — Action for Upon Land — Evidence.—A party, who sues for trespasses upon his land, and his ownership is denied, must show, that he is the owner of the land, by some one of the ways, provided by law, for acquiring ownership of lands, before he can recover.</p> <p>2. Contracts — Parol Argeement'Establishing Division Line — Estoppel. —A parol agreement between the owners of adjoining lands, establishing a division line between their lands, will not be enforced as an estoppel, where the .controversy arises from overlapping deeds, causing a dispute as to'the superiority of title, and there-' fore a dispute as to true division line, and where the agreement was not executed, by acquiescence in and recognition of the agreed line for a considerable period of time, but, was repudiated by one of the parties, within a few days, and before any intervening right occurred.</p>

<p>1. Deeds — Title—Delivery.—The title to real estate passes upon the execution, and delivery of the deed.</p> <p>2. Frauds, Statute of — Sufficiency of Description. — If the description in the deed or,writing is sufficient to identify it, so that it can be designated by parol proof, and the words of description in the writing applied with certainty to the exact' property, which the parties had in mind, when making the contract/ the description is sufficient to meet the requirements of the statute of frauds.</p> <p>3. Deeds — Extrinsic Parol Evidence. — Extrinsic parol evidence is not admissible to identify the property, which the parties had in mind, when making the contract, as the writing must identify it, but, such evidence is admissible to designate the property, which was identified in the minds of the parties, as expressed in the writing.</p> <p>4. Adverse Possession — Champerty.—The adverse possession necessary to render a sale of a tract of land chapertous, must be such an adverse possession as, if continued, would ripen into a title after the statutory period.</p> <p>5. Champerty and Maintenance — Champertous Contracts in General. —The sale, by a co-tenant to another co-tenant, of his interest in lands, which are claimed by them under the same title, is not champertous.</p> <p>6. Dower — Devise in Lieu of Dower. — 'Where a husband devises property to his wife, it is presumed, that the devise is in lieu of dower, unless the will expressly shows a contrary intention, or the latter intention is necessarily inferable from the will.</p> <p>7. Dower — Devise in Lieu of Dower. — Where a devise is made to the wife by the husband, in lieu of dower, the wife is barred from claiming dower, in the lands of the deceased husband, unless she within twelve months, renounces the provisions of the will in the manner provided by law.</p> <p>8. Dower — Devise in Lieu of Dower — Failure to Renounce Will.— Where a widow fails to renounce the provisions of a deceased husband’s will for her benefit, within the time provided by law, it is presumed, that she has elected to accept the provisions of the will, in lieu of dower 'and distributable share.</p> <p>9. Dower — Law of the Place. — The title to real estate is governed, solely, by the law of the place, where it is situated, and the widow of an owner of real property, in this state, who resided in another state, is entitled to dower, in the lands in this state, solely, by virtue of the laws of this state, and her right to same must be measured by the conditions and restrictions, which the laws of this state, impose upon the right to dower.</p>

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

<p>1. Frauds, Statute of — Parol Contract for Purchase of Land. — A parol or verbal sale or purchase of land is void and confers upon the purchaser no legal or equitable interest whatever in the land, but only such collateral equities as may arise out of the transaction such as a lien on the land for the purchase money paid, if the possession has been transferred pursuant to the verbal purchase. A parol contract for. the purchase of land is unenforcible.</p> <p>2. Adverse Possession — Limitation of Actions. — One who has or claims an interest in land adverse' to another in possession thereof, must assert it within the statutory period, and if he fails, his right, whatever it may be, will be barred; and in no case will more than, thirty years be allowed for the bringing of such • action.</p>

<p>1. Husband and Wife — Alimony.—If a husband abandons his wife without a legal reason for so doing, he may be required to pay alimony.</p> <p>2. Husband and Wife — Abandonment.—Mere fits of ill temper and occasional quarreling and scoldings by the wife, will not justify a husband in abandoning his wife, unless his personal safety is endangered.</p> <p>3. Husband and Wife — Alimony.—A wife will not be denied alimony, where she is not guilty of any moral delinquency, and her husband has abandoned her, although she is not entirely blameless, if the husband was a participant in the causes of the shortcomings, which led to the separation.</p> <p>4. Husband and Wife — Alimony—Discretion of Chancellor. — The amount of permanent alimony to be allowed a wife, because of desertion by her husband, is confided to the sound discretion of the chancellor, who may take into consideration, the amount of the husband’s estate, his present and future prospects, his earnings and ability to earn money; his dependents, in the way of children, and the particular cause of the separation.</p>

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

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

<p>1. Appeal and Error — Finding of Chancellor. — 'Where there is a conflict in the evidence and upon a review or consideration of the entire record the mind is left in doubt as to the correctness of the judgment appealed from this court will not disturb the findings of* the chancellor.</p> <p>2. Trusts — Removal of Trustee. — If anything interferes to prevent a just and proper discharge of the trust and fiducial duties of the trustee or the trust is not being properly conducted, or by reason of hostility between the trustor and the trustee the court should be convinced that a change in trustees would be advisable, the trustee can be removed.</p>

<p>1. Appeal and Error — Finding of Chancellor. — Where the evidence is conflicting and the questions of fact "by reason thereof difficult of solution, if upon .a consideration of the whole case the mind is left in doubt as to the correctness of the judgment the findings of the chancellor will not be disturbed.</p> <p>2. Deeds — Undue Influence — Burden of Proof. — Where there exists between two persons a relation of confidence and trust, by which one may exert an undue influence over the judgment of the other, and a voluntary conveyance beneficial to the grantee is made, the burden of proof is on the person benefited to show the grantor acted freely and of her own volition.</p>

<p>1. Physicians and Surgeons — Injury from Want of Knowledge and Skill. — A physician or surgeon is answerable for an injury sustained, by his patient resulting from want of the requisite knowledge and skill, or from his failure to use reasonable care and diligence in the treatment of the patient, including a diagnosis of the case so as to discover the patient’s malady; and the stand- . ard of skill which the physician should possess and the care which he should exercise is that skill and care and diligence possessed and exercised by physicians in similar neighborhoods and similar surroundings and engaged in the same general line of practice.</p> <p>2. Appeal and Error — Directed Verdict. — A directed verdict is not authorized unless after admitting all of the testimony introduced hy the one against whom it is directed, and after fair and reasonable inference that might be deducible therefrom, he has failed to make out a case; and this rule prevails although the court would be authorized to set aside the verdict if one should be returned against the litigant making the request.</p> <p>3. Physicians and Surgeons — Injury from Want of Knowledge and Skill — Evidence.—A pregnant woman applied to defendant, a practicing physician, for treatment. Defendant diagnosed the case as kidney trouble and gave plaintiff some strong medicines that after taking produced pains and nausea and made plaintiff nervous. After four months plaintiff, who was forty-two yefrs old and never been pregnant before, suggested the' possibility of pregnancy and defendant said no, that the pain and enlargement were due to gas in plaintiff’s stomach and gave her more strong medicine and advised her to continue her work, which she did, until she was stricken with labor pains after which she gave birth to a dead child. Held, that a peremptory instruction to find for defendant at close of plaintiff’s testimony was improper.</p>

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

<p>1. Appeal and Error — Law of tbe Case.- — Tbe opinion of tbe Court of Appeals upon tbe first appeal of a case is the law of tbe case, upon subsequent appeals, under substantially the same facts, not only with respect: (1) to errors relied upon for a reversal on the first appeal and which, are mentioned in the first opinion; (2) to errors relied- on hut not noticed in the opinion, but (3) also as to errors appearing in the first record that might have been but -were not then relied upon.</p> <p>2. Appeal and Error — Law of the Case. — The rule that the opinion upon the first appeal is the law of the case in subsequent appeals under substantially the same facts, applies to all cases where the opinion does not expressly state that a particular point is not passed upon; and an opinion upon a first appeal conclusively settles the question of the sufficiency of the pleadings, the competency of the testimony, and its sufficiency to take the case to the jury.</p>

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

<p>1. Taxation — Manufacture.—Under a statute exempting from local taxation “raw material actually on hand at their plant for the purpose of manufacture” raw or green tobacco on hand at a factory that is only given some preliminary treatments at the factory and then sent to other factories to be put in shape for sale on the market is not exempt from local taxation.</p> <p>2. Manufacture — Meaning of Word. — In the meaning of the statute exempting “raw material on hand for the purpose of manufaclure” raw material is not on hand for the purpose of manufacture unless the manufacture of such raw material at the plant where it is found is so complete as that the product may be sent out from that plant and sold on the market as a finished product.</p> <p>3. Manufacture — Definition of. — It is not the means or methods employed nor the nature or number of processes resorted to or the size of the factory or the number of hands it employs or the volume of machinery in use, but the result accomplished that determines whether the article is manufactured or not.</p> <p>4. Taxation- — When Raw Material Exempt From — Manufacture— What is. — The test of whether raw material is on hand at a factory for the purpose of being manufactured is this — is the raw material converted at that factory or plant into a finished product complete for the final use for which it was intended or so completed as that in the ordinary course of the business of the concern it is ready to be put upon the open market for sale to any person wishing to buy it?</p> <p>5. Taxation — Raw Material — When Exempt From — Manufacture— What is. — It is not essential before the exemption applies that raw material should be converted at the factory into a finished product fit for .the final use for which it was intended. It will be sufficient if it is on hand for the purpose of being there converted into an article ready for sale on the open market although after the product has been so sold it may be put by other parties to the final use for which it was intended.</p> <p>6. Taxation — Notice to Taxpayer of Raise of Assessment. — Under section 4122 of the Kentucky Statutes if the Board of Supervisors raises the list of the taxpayer he must have notice of the raise or else it will be void.</p> <p>7. Taxation — Notice to Taxpayer of Raise of Assessment. — Where a taxpayer furnishes to the Tax Commissioner a list of property that he claimed to be exempt from taxation and the Tax Commissioner accepted the list as exempt, and thereafter the Board of Supervisors without notice to the taxpayer placed the property-in a list subject to taxation, this was in effect raising the assessment without notice and the action of the Board of Supervisors was void.</p> <p>8. Taxation — Injunction.—Where a Board of Supervisors raises without notice the list of a taxpayer he may enjoin the collection of the taxes.</p>

<p>1. Master and Servant — Workmen's Compensation Act — Participation in Compensation. — Under the Workmen’s Compensation Act a partially dependent father of a deceased employe may participate in the compensation, allowed by the board, with the wife of the deceased whom the law presumes to be wholly dependent, in that proportion which the partial dependency of the father bears to total dependency.</p> <p>2. Master and Servant — Workmen’s Compensation Act — Award.—The underlying purpose of the system instituted by the Workmen’s Compensation Act is- to provide support and maintenance for those who were dependent totally or partially upon the deceased employe in his lifetime, and to accomplish this the award made by the board should be distributed among the several dependents, total and partial, in the same proportion, as nearly as may be, that the deceased employed in taking care of the several dependents.</p>

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

<p>X. Wills — Inequality of Disposition of Estate. — Proof of inequality of disposition among the objects of a testator’s bounty, does not invalidate a will, unless fortified by evidence, proving incompetency, of tbe testator, or the existence of undiiS influence exerted upon bim.</p> <p>2. Wills — Distribution of Estate. — A testator, who is mentally competent, and not controlled by undue influence of another, may dispose of his property, as he chooses, and may select between the natural objects of his bounty, or he may discard them, and dispose of his estate to other objects.</p> <p>3. Wills — Dreams—Influence of.' — Proof, that a testator has, in previous years, had dreams, the interpretations of which, by himself, he obeyed, will not invalidate á will made by the testator, unless it appears, that he was acting under the influence of a dream, in the testamentary act.</p> <p>4. Wills — Undue Influence — Burden of Proof. — The burden of proof is upon one, who charges, that a will was the product of undue influence, and while like fraud, the one exerting it, usually does so, secretly, and surreptitiously, there must still be some evidence of it, and if there is none, the charge fails.</p>

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

<p>1. Master and Servant — Fellow Servants — -Negligence.—Employees in control of separate coal cars in a coal mine and performing the duty of driving the mules by which they are hauled, are not fellow servants of other employees of the -same master in control of like -cars in the same coal mine and performing the duty of driving the mules hauling them; and if a servant in control of one of such cars and engaged in. driving the mule hauling it, is injured by the negligence of a servant in control of another car and engaged in driving the mule hauling it, the master will be liable.</p> <p>2. Master and Servant — Fellow Servants — Negligence.—The master will not be excused for negligence resulting in injury to one servant inflicted by another servant in the same department of service and engaged in like work, unless the servants are so engaged and situated as that each, by ordinary care and attention in the performance of his duties, may protect himself from injury resulting from the negligence of the other.</p> <p>3. Master and Servant — Fellow Servants — Negligence.—Where the servant is injured by another servant of the same master, who is not directly associated with him or in any degree subject to his control, or even advice, and against whose negligence he has no means of protecting himself, he may recover of the master damages for the injuries caused him by the negligence of such other servant, whether such negligence be ordinary or gross, and without reference to the position or place the servant causing the injury holds.</p>

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

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

<p>1. Appeal and Error — Jurisdiction—Supersedeas.—An appeal from a money judgment for a sum as much as $200.00, exclusive of interest and costs, but less than $500.00, can be granted only by the Court of Appeals. Judgment can be superseded only by a bond executed before the clerk of the Court of Appeals.</p> <p>2. Appeal and Error — Jurisdiction.—Where the amount of the judgment is less than the minimum amount necessary to give this court jurisdiction the court will entertain the appeal where a valid or meritorious cross-petition or counterclaim is tendered or filed in an amount sufficient to give jurisdiction.</p> <p>3. Appeal and Error — Law of the Case. — Judgment of this court, on a former appeal, being the law of the case all questions that were -then presented or were properly before the court are as conclusively settled as if speeificially mentioned and considered.</p>

<p>1. Appeal and Error — Presumption.—On an appeal from a judgment rendered by the chancellor, in the absence of the record showing to' the contrary, it will be presumed that the judgment was properly and regularly entered and that the pleadings and testimony supported the judgment.</p> <p>2. Appeal and Error — New Trial. — In an action for new trial pursuant to sections 518-523 of the Civil Code it is necessary for the plaintiff seeking to vacate the judgment to file a copy of the record with the petition, or set out with sufficient fullness and definiteness facts relative to the judgment sought to be affected as to enable the court to determine whether or not plaintiff is entitled to a new trial.</p>

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

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

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

<p>1. Injunction — When Granted. — An injunction will not be granted unless it clearly appears that the complaining party will, unless it be granted, suffer great and irreparable injury-that can not be adequately ascertained or compensated for in a suit for damages.</p> <p>2. Injunction — Will Not Be Granted to Interfere With Pending Forcible Detainer Proceedings. — Where “A” instituted forcible detainer proceedings against “B” and “B” traversed the finding against him, "A” in a suit afterwards brought by him should not have an injunction to restrain “B” from using the premises in controversy in the forcible detainer proceedings.</p> <p>3. Forcible Entry and Detainer — No Bar to Action for Trespass or Waste. — Under section 468 of the Code proceedings under a writ of forcible entry or detainer do not bar an action for trespass or waste, but in such an action an injunction should not be granted.</p> <p>4. Forcible Entry and Detainer. — Where forcible detainer proceedings are pending in the circuit court on a traverse the plaintiff should not be allowed by an injunction while the forcible detainer proceedings are pending, to take possession of the premises that the defendant in the forcible detainer proceedings claims the right to the possession of.</p>

<p>1. Master and Servant — Liability for Injuries to Servant. — One wbo is engaged to shovel dirt from a ditch and over exerts himself and is injured, can not recover damages of the master because the servant is the best judge of his physical strength.</p> <p>2. Master and Servant — Liability for Injuries to Servant. — The fact that the master assured the servant that he could lift the dirt from the bottom of the ditch and cast it upon the surface of the ground and that the servant, though protesting, returned to the -work and was injured by overtaxing his strength, does not further the cause of the servant for the reason that the servant is better able to judge his own strength than is the-master to judge the strength of the servant.</p>

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

<p>1. Frauds, Statute of — Promise to Pay Debt 'of Another. — A promise to pay the debt of another, -which is founded upon a different con- ■ sideration from the consideration of the debt, and the promise is not made to the creditor, is not within the statute of frauds.</p> <p>2. Contracts — Who May Sue Upon — Consideration.—One for whose benefit a contract is made, may sue thereon, although he did not furnish, the consideration.</p> <p>3. Husband and Wife — Guaranty and Suretyship. — A married woman can not be hound, as a surety, and the only way she can undertake “to answer for the debt, default or misdoing of another,” is to set apart her estate “by deed of mortgage or other conveyance,” for the purpose of securing the payment of the liability.</p> <p>4. Husband and Wife — Guaranty and Suretyship. — A married woman will not be bound for the debt of her husband, despite the form of the transaction, if the substance of it shows, that it is a mere assumption of the husband's debt.</p> <p>5. Husband and Wife — Guaranty and Suretyship. — A married woman, who makes a promise to pay a debt, of her husband, in consideration of the sale and conveyance to her by the husband of a sufficient portion of his property to constitute a substantial consideration for the promise, and sufficient to induce it, will be bound by the promise, as such a transaction is not within the spirit and purpose of the prohibition of sectipn 2127, Kentucky Statutes.</p>

<p>1. Guardian and Ward — Employment of' Attorneys — Services.—A guardian is authorized to employ attorneys to prosecute and defend actions for his wards, and to bind their estates to pay a reasonable fee for the services of the attorneys.</p> <p>2. Guardian and Ward — Payment of Attorneys’ Fees. — Before the estate of an infant can be subjected to the payment of counsel fees, upon a contract with the guardian, it must appear, that the services were actually rendered, and that they were reasonably necessary for the protection of the interests of the infants, and that the sums charged, are reasonable and not disproportionate to the value of the services rendered.</p> <p>3. Guardian and Ward — Allowance of Attorneys’ Fees.- — The amount allowed for counsel fees, against the estate of an infant, will not be increased on account of the number of attorneys engaged, but, the court will fix a sum for payment for the necessary legal services rendered, and apportion it' between the attorneys, as may be equitable.</p> <p>4. Guardian and Ward — Payment of Attorneys’ Fees. — Where attorneys defend an action for wards, by contract, with the guardian, and the guardian pays them, he will be allowed credits in his settlement by the sums paid, if the services of an attorney were reasonably necessary, and the sums paid, were reasonably proportionate to the value of the services, but, in the event the guardian fails to pay for the services, the attorneys may subject the estate of the wards to the satisfaction of their debts, by a suit in equity, in which all the parties, in interest, are made parties.</p> <p>5. Attorney and Client — Compensation.—In fixing the compensation due an attorney, for legal services, the amount and character of the service rendered, the nature- and importance of the litigation, the amount and value of the property, in contest, the skill necessary to properly attend to the business, and the professional standing and skill of- the attorney may be looked to, together with the time, labor and trouble expended.</p>

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

<p>1. Eminent Domain — Taking Private Property for Public Use — Compensation. — Constitution, section 13, Bill -of Rights, and section 242, -which declare municipal and other corporations and individuals invested with. the privilege of taking private property for public use, “shall make just compensation for the property taken, injured or destroyed by them,” applies to the building without right of a fill for a railroad on the land of another, or the obstructing of the means of ingress and egress to and from his land. .</p> <p>2. Trespass — Liability for Injury from Invasion of Property. — A vendee or lessee of real estate is not exempt from liability for an injury that results from an invasion of another’s property, where his possession is based upon no other title than a tortious entry by his vendor, as in such case the act of the vendor in appropriating the property being wrongful, that of the vendee in retaining possession of the property is equally so.</p> <p>3. Trespass — Wrongful Transfer of Property — Compensation.—The party originally wrongfully taking or occupying the property, can not transfer to another by lease or otherwise any right in the property, except subject to the duty to make compensation therefor.</p> <p>4. Trespass — Measure of Damages — Instructions.—Where there is a wrongful taking of land constituting a trespass, the wrongful taker thereof cannot complain that the. trial court in instructing the jury as to the measure of damages, did not give the measure applicable to the taking of the land by condemnation proceedings; nor in such case was there any error in instructing the jury that the measure of damages was the same as applicable in a case of trespass to realty.</p> <p>5. Appeal and Error — Instructions.—The refusal,of an instruction offered, however correct may be its form or substance, is not error,-if the matter thereof is substantially contained in-another that the court gave.</p>

<p>1. Landlord and Tenant — Liability for Tenant’s Injury. — The landlord is not liable for injuries growing out of the defective condition of the premises, unless such condition is known to the landlord and is not known to, or discoverable by, the tenant on a reasonable inspection, and the landlord conceals, or fails to disclose, such condition to the tenant.</p> <p>2. Landlord and Tenant — Liability for Tenant’s Injury. — Where the defective condition of an attic floor was known to, or discoverable by, the tenant on a reasonable inspection, the tenant could not recover for injuries caused thereby, even though she did not know of the existence of a stairway underneath the flooring, and fell further than she had reason to anticipate she would fall if the flooring gave way, since the liability of the landlord turns on the fraudulent concealment, of a latent defect and not on the tenant’s lull appreciation of the danger.</p>

<p>1. Corporations — Subscriptions to Stock — Liability for Unpaid Subscriptions — Bona Fide Purchasers. — A corporation issued a certificate of common stock to an agent with the agreement that the common stock should he given as a bonus to purchasers of preferred stock, who were informed that they would receive one share of common stock with each two shares of preferred. No stock was assigned to the purchasers by the agent, but the stock was issued and accepted by them directly from the company. Held, that such purchasers were not bona fide transferees for value, but were liable to the creditors of the corporation for the par value of the common stock.</p> <p>2. Corporations — Subscriptions to Stock — Bonus Common Stock With Subscription to Preferred Stock. — Where persons subscribed for preferred stock at a par value of $25.00 per share, at the price of $35.00 per share, with the understanding that they would receive one share of common stock with each two shares of preferred, the additional $10.00 was paid solely as a premium on ecah share of preferred, and was in no sense a payment on the common stock, and the purchasers were not entitled to have their indebtedness for the common stock credited by the premium paid on the preferred slock.</p> <p>3. Corporations — Subscriptions to Stock — Liability of Stockholders to Creditors. — Under Constitution, section 193, and Kentucky Statutes, section 547, the liability of stockholders to creditors of a corporation for unpaid stock subscriptions is absolute, and is not affected by the creditors’ knowledge, or want of knowledge, when the credit was extended, that the stock was issued with the understanding that it was not to be paid for.</p> <p>'4. Bankruptcy — Corporations—Unpaid Stock Subscriptions — Right of Action — Trustee’s Sale. — A corporation permitted its agents to sell its preferred stock with the understanding that the purchasers would receive one share of common stock as. a bonus with each two shares of preferred, and that the common stock was fully paid and non-assessable. The corporation became bankrupt and the trustee sold its real estate “together with all the personal property, open accounts, notes and all assets belonging to the said Globe Casket Company, and now in the hands of the party of the first part, as aforesaid trustee.” Held, unnecessary to determine whether the- trustee’s fight of action for unpaid stock subscriptions could have been sold, but sufficient to say that it was not sold and did not pass to the purchaser at the trustee’s sale, in view of the fact that the corporation was estopped to recover the unpaid stock subscription, and the liability of the stockholders was in no sense an asset of the corporation, nor was it ever in the hands of the trustee.</p>

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

<p>1. Specific Performance — Nature and Grounds of Remedy in General. • — Tbe remedy of specific performance is not one which will be granted as a matter of right, but will be granted or withheld by the court in the exercise of a sound judicial discretion, which, however, is not an arbitrary or capricious one, but is one to bo exercised according to the principles of equity, and when to enforce it would operate harshly and oppressively upon'the defendant and in a way not reasonably contemplated when the contract was entered into, the relief will be withheld and the complaining party relegated to his remedy at law.</p> <p>2. Specific Performance — When Will be Denied. — -Although such harsh, oppressive and unconscious results would follow a specific execution but not to the extent to authorize its denial under above rule if the contract, strictly construed, does not include or provide for the specific relief sought, it will be denied.</p> <p>3. Specific Performance — When Will be Denied. — A contract provided for the sale of a right of. way through vendee’s farm, through which ran a natural stream, and in which, running longitudinally, the railroad company selected its right of way. The contract provided for a price for “hill” land and another ■ for “bottom” land. Held, that neither descriptive term applied to the bed of the stream, and the specific performance sought to compel the execution of a deed to that portion of the vendee’s farm in the bed of the stream will be denied.</p>

<p>Appeal and Error — Evidence.—The fact that the evidence in the case is conflicting or that this court would have found differently on the facts does not give or furnish cause or ground for setting aside the verdict. In this case but two witnesses testified on the main issue — one for appellant and one for appellee — so this court cannot say the verdict is against the weight of the evidence. Theories of both parties were submitted to the jury under proper instructions.</p>

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

<p>1. Judicial Sales — Inadequacy of Price. — Mere inadequacy o£ price is not sufficient to set aside a decretal sale of property, but where the price bid is greatly disproportioned to the actual value, only slight additional circumstances are required to order a resale..</p> <p>2. Judicial Sales — Exceptions—Infants.—Where rights of infants are involved the court will be more liberal in sustaining exceptions to commissioners’ reports on the ground of gross inadequacy of price.</p> <p>3. Judicial Sales — Notice.—Under the Civil Code of Practice, sec. C96, unless the order otherwise directs, notice of sale under order of court shall be made at the door of the court house of the county.</p> <p>4. Judicial Sales — Notice.—Where the judgment directed posting of notices at the door of the court house and in the vicinity of the property to be sold, and also a publication iñ a newspaper, it was necessary that tho directions of the judgment be complied with, publication in the newspaper alone being insufficient.</p> <p>5. Judicial Sales — Notice.—Where the report of sale recites that the property is advertised as directed by the judgment there is a presumption that the commissioner performed his duty, but this presumption may be rebutted by testimony showing the notices were not posted as required by the judgment.</p>

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

<p>1. Negligence — Contributory Negligence. — Contributory negligence does not bar a recovery, unless, but for tbe contributory negligence, tbe injury would not bave been incurred.</p> <p>2. Negligence — Contributory Negligence. — Contributory negligence does not bar a recovery, if tbe party, perpetrating tbe injury, was under a duty to exercise care and could bave, by tbe exercise of ordinary care, averted tbe consequences of tbe injured one’s negligence.</p> <p>3. Master and Servant — Care to be Exercised for Safety of Another.— Where a duty rests upon one to exercise care for the safety of another, and although slight injury may be unavoidable, the duty is encumbent upon-him, not to inflict any greater injury, than is unavoidable, although the injured one, himself, may have been negligent.</p> <p>4. Master and Servant — Assumption 'of Risk — Contributory Negligence. — It is the duty of a master to. be reasonably careful to prevent accidents and injuries to his servants, and his failure to do so, will render him liable, unless the servant assumes the risks or contributes to the injury, by his negligence.</p>

<p>1.' Homicide — Self-Defense—Instructions.—An instruction on the law of self-defense so worded as that it must have given, or was reasonably liable to give, the jury to understand, that in order to acquit the accused on that ground, they were required to believe from the evidence beyond a reasonable doubt the facts it was stated would excuse the homicide; and which, in addition, confined the exercise of the right of self-defense by the accused to the mere shooting and wounding of the deceased, was so prejudicial to the substantial rights of the accused as to compel the reversal of the judgment of conviction.</p> <p>2. Homicide — Self Defense — Instructions.—The instruction should have advised the jury that their belief from the evidence of the predicated facts constituting self-defense on the part of the accused, would justify a finding from them that the killing of the deceased was excusable; as in such state of case, the shooting by the accused was justifiable whether it resulted in the mere wounding of the deceased or in his death. A form of instruction which will correctly advise the jury as to the law of self-defense, on a retrial of the case, will be found in the opinion.</p>

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

<p>1. ■ Insurance — Fraternal Insurance — Beneficiaries.—Previous to the enactment of the act of March 22, 1916, where the beneficiary in a policy of insurance issued by a fraternal benefit society, died, during the lifetime of the insured, and the insured did not, thereafter, make any further or other disposition of the fund to be paid under the policy, and in the absence of anything, in the contract of insurance, which made any other disposition of the fund, then to the beneficiary named, the fund, upon the death of the insured, descended to the heirs of the deceased beneficiary.</p> <p>2. Insurance — Fraternal Insurance — By-law.—Previous to the act of March 22, 1916, concerning fraternal insurance companies, the constitution of the company, the laws of the state and the terms of the contract, fixed the rights of the parties and determined the disposition of the insurance fund, to be paid under the policy, at the time of the making of the contract of insurance, and after the contract of insurance was made, neither a by-law of the society, nor an act of the General Assembly can divest one of a vested right, which he acquired under the policy.</p> <p>3. Insurance — Fraternal Insurance — Beneficiaries.—As a general rule, a beneficiary of a certificate in a fraternal benefit society, has only a contingent interest, which does not become vested until the death of the insured, and if he dies, before the insured, his right dies with him, and such is the rule declared by the act of March 22, 1916, to hereafter prevail in this state, but, heretofore, by the terms of sections 4841 and 655 Ky. Stats., the rule has been held to have been abrogated, and under contracts of insurance made previous to March 22, 1916, if the beneficiary died before the insured, and the insured, thereafter, made no further disposition of the fund to be paid under the certificate, and there was no provision of the contract, which provided for any other disposition of it, than to the named beneficiary, the right of the beneficiary was'held to be vested, and while the insured might divest the right of the beneficiary by his act, the society could not do so.</p>

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

<p>1. Bills and Notes — Validity of Assignment — Wliat Law Governs.— The validity of the assignment of a note must be determined by the law. of the state where the assignment is made.</p> <p>2. Fraudulent Conveyances — Bills and Notes — Fraudulent Assignment — Evidence—Sufficiency.—In an action to set aside the assignment of a note by the payees to the wife of one of the payees, evidence examined and held to support the finding of the .chancellor that the assignment was in fraud of creditors.</p>

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

<p>Appeal and Error — Agreed Judgment. — A party, who makes no defense to an action, and by his answer, makes no issue, and agrees, that the judgment may be rendered, will not be heard upon appeal from it.</p>

<p>1. Master and Servant — Hours of Service Act.' — A section hand sweeping snow from the switches in a railroad yard is not an employe within the Hours of Service Act, which applies only to persons actually engaged in or connected with the movement of trains.</p> <p>2. Master and Servant — Hours of Service Act. — Sweeping snow from a switch in a railroad yard has no connection with the movement of trains under the act of Congress of March 4, 1907.</p>

<p>1. Equity — Relief.—Where issue is joined in a suit in equity the court may under a prayer for general relief grant any relief to which the parties show themselves entitled.</p> <p>2. Divorce — Cruel and Inhuman, Treatment. — A base and unfounded charge of unchastity and adultery made by the husband against his wife constitutes such cruel and inhuman treatment as to entitle her to a divorce upon that ground; but the charge by the husband in order to amount to such cruelty must be deliberately made and not made capriciously or in a fit of jealousy or under circumstances not showing a determination to falsely prefer the charge.</p> <p>2. Divorce — Alimony—Discretion of Court. — The question of the amount of alimony to be allowed the wife upon the granting of a divorce is one which addresses itself to the sound discretion of the court in the light of the facts of each particular case, there being no definite and fixed rule upon the subject.</p> <p>4. Divorce — Alimony—Allowance—Appeal and Error. — Where the testimony shows to a reasonable certainty that the husband possesses property to the value of between $4,000.00 and $5,000.00, and the wife has property to the amount of only about $650,00, and has in her custody two of the infant children, an allowance to the wife of $750.00 and of $100.00 to her attorney will not be disturbed as excessive.</p> <p>5. Divorce — Alimony—Evidence.—Where the husband seeks a divorce upon the sole ground of himself and wife living apart without cohabitation for five years, the wife by her answer may seek and obtain alimony, provided she was not at fault in bringing about the separation.</p> <p>6. Limitation of Actions — Pleading.-—The statute of limitation in order to be taken advantage of must be pleaded.</p>

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

<p>Appeal and Error — Subsequent Appeal — Law of Case. — The facts being substantially the same, the opinion on a former appeal is the law of the case, and binding alike on the trial court and the Court of Appeals.</p>

<p>1. Divorce — Abandonment—Alimony.—An action may be maintained by the wife for alimony independent of a suit for divorce, if the' husband has abandoned her or treated her in such a cruel and inhuman manner as to force her to leave him, and she is without fault.</p> <p>2. Divorce — Pleading.—In such action it is unnecessary to aver in the petition that cause for divorce had occurred or existed in this state within five years, as required in suits for divorce by section 423 of the Civil Code and section 2120, Ky. Stats.</p> <p>3. Divorce — Alimony.—Such an action is transitory except as localized by section 76 of the Code to the.county of the wife’s residence, but over which any court having jurisdiction of the subject matter may acquire jurisdiction of the defendant where he is summoned or voluntarily appears and malíes defense.</p> <p>4. Divorce — Cruel and Inhuman Treatment. — Refusal of the husband to permit wife’s children of tender years by a former marriage to remain in his home, under circumstances of this case, is such cruel treatment of the wife as justified her leaving him without forfeiture of her right to alimony.</p> <p>5. Divorce — Alimony.—While allowance of $1,000.00 as alimony to wife without fault for abandonment of husband who owns property of $8,000.00 or more would be too small under ordinary cir-’ •cumstances, it is not so under peculiar circumstances of this case.</p>

<p>1. Master and Servant — Personal Injuries — Evidence.—When a verdict for personal injuries is so large that it can be sustained only if the injuries are permanent, there must be positive and satisfactory evidence of permanency.</p> <p>2. Damages — Excessive Damages. — A verdict of $10,000.00 held to be so excessive as to indicate prejudice or passion upon the part of the jury, because of the inconclusive character of the scant evidence of permanency of injuries asserted to have resulted from an accident which seemed trivial at the time and was followed only tardily by any symptoms of serious injury.</p>

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

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

<p>1. Criminal Law — Mental Condition of Defendant — Evidence.— . Question of appellant’s mental condition having been submitted to tbe jury under proper instruction, tbe record examined, tbe court finds there is no ground to reverse the judgment of the jury finding appellant guilty. ■</p> <p>2. Criminal Law — Connected Criminal Acts. — Where several criminal acts committed by the accused' are so connected with respect to time and locality as to form an inseparable transaction and a complete account of the offense charged in the indictment cannot be given without detailing the particulars of such acts, ■ evidence of same is admissible to prove the whole general plan.</p> <p>3. Criminal Law — Evidence—Admonition.—The admonition of the icourt as to the admission of testimony relative to the second shooting was proper; even though the language used was inapt it was not prejudicial to the accused.</p>

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

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

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

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

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

<p>1. Perjury — -False Swearing — Indictment—Negativing False Statement. — An indictment for false swearing must set out the statements alleged to have been made and then aver that the statements were false and were so known to be when made.</p> <p>2. Perjury — False Swearing — Indictment—Sufficiency of. — It is only necessary that the alleged false statement should be negatived in such a way as to certainly inform the accused of the nature of the offense which is charged against him and when the indictment, after setting out the false statements, charges that they were wilfully corrupt and false and were so known to be when made, this is in substance the same as if the alleged false statements were negatived in so many words.</p> <p>3. Perjury — False Swearing — Indictment—Sufficiency of Averment as to Matter Being Investigated. — It is not essential that the indictment should set out the specific matter being investigated by the grand jury at the time the alleged false testimony is given. It is only necessary that it should state facts showing that the matter being investigated related to a subject that the grand jury had jurisdiction to inquire into.</p> <p>4. Indictment and Information — Sulficiency of. — Except in cases where some special technical averment is required an indictment will be good if it gives the accused full and accurate information of the charge against him in language so simple that a person of ordinary intelligence can understand the nature of the accusation.</p> <p>5. Perjury — False Swearing — Evidence Sufficient to Convict. — The falsity of the statement may be shown by the evidence of living witnesses or by documentary or written evidence or by facts that clearly and convincingly establish it.</p> <p>6. Perjury — False Swearing — Evidence Sufficient to Convict. — Where a person was indicted for falsely testifying that he had bought whiskey at a certain time and place from a named person and it was conclusively shown that the person from whom he said he bought the whiskey- was at the time confined in a penitentiary, this evidence • was sufficient to sustain a conviction for false swearing.</p>

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

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

<p>1. Executors and Administrators — Removal of Administrator — Appointment of Administrator De Bonis Non. — Effect of Striking Out Words “De Bonis Non.” — Where administrators are removed and another appointed in their stead, the latter is an administrator de bonis non, whether the words “de bonis non” are used in the order.of appointment or not, and the action of the county court in subsequently striking out these words on the ground of clerical misprision did not affect the relation which the latter sustained to the estate.</p> <p>2. Executors and Administrators — Rights and Powers of Administrator De Bonis Non — Recovery from Predecessor. — Under the common law rule which prevails in this state, an administrator de bonis non can recover from his predecessor or his personal representative only such estate of the decedent as remains in specie, and cannot recover the proceeds of such as "had been converted into money, unless such proceeds were kept separate and were susceptible of identification.</p> <p>3. Executors and Administrators — Administrator De Bonis Non — • Assets Wasted — Right of Action. — For assets wasted by the first administrator, the right of action is not in the administrator de bonis non, but in the distributees, heirs or creditors.</p> <p>4. Executors and Administrators — Action Against Predecessor and Surety by Administrator De Bonis Non — Petition—Sufficiency.— In Order for an administrator de bonis non to recover of his predecessor and the surety on his bond, he must allege that his predecessor had in his hands unadministered assets in kind, or the proceeds of such as had been converted into money and kept separate and unmixed with those of his own; otherwise, the petition is had on demurrer.</p>

<p>Appeal from Lawrence Circuit Court.</p> <p>1. Guardian and Ward — Authority to Expend Property of Ward — A guardian may apply to a court of equity for authority to expend property of the ward, and if the facts authorize it the court has jurisdiction to direct it to be made.</p> <p>2. Parent and Child — Guardian and Ward — Use of Ward’s Estate.— While it is the duty of the parent to maintain, educate and support his child for whom he may be guardian, still, if the parent is in such needy financial circumstances as that he is unable to do so, he may use the ward’s estate within the limits of the law for that purpose.</p> <p>3. Guardian and Ward — Use of Ward’s Income. — Where a ward is unable to labor for his support on account of his extreme youth, and it is shown that it is necessary to expend the whole of his income — which amounts to $58.75 per month — for his support and education, the chancellor may direct and authorize the guardian to expend that amount for such purposes until the further orders of the court.</p> <p>4. Insurance — Payment of Debts Out of Proceeds. — Where a testator in his will directed the payment of certain debts out of the' proceeds of a life insurance policy .which was at the time payable to his estate, and in the will stated that he would assign the policy to his son, which he afterward did, the policy will be held by the son burdened with the trust for thp payment of the debts specified in the will. . "</p>

<p>1 False Imprisonment — Defenses.—It is no defense to an action for false imprisonment that the defendant who made the arrest was acting under the directions of a superior officer, since the arresting officer must himself he authorized to make the arrest under some of the provisions of sec. 36 of the Criminal Code of Practice.</p> <p>2. False Imprisonment — Submission of Issue — Instructions.—If the facts constituting the authority to make the arrest are disputed, the issue should be submitted to the jury uuder instructions from the court; but if such facts are undisputed, it then becomes a matter for the court to decide, and where the undisputed facts show that the arresting officer in the exercise of a sound discretion had reasonable grounds to believe that the one arrested had committed a felony, it is the duty of the court to so direct the jury by a peremptory instruction.</p> <p>3. Arrest — When Officer May Arrest Without Warrant. — Where one reports to an officer that another had just attempted to rob him, and .gives a plausible and consistent account of the attempt, and there is nothing in the nature of the account to cause a reasonable person to question its accuracy, and soon thereafter the same person points out to the officer the one whom he claims attempted to rob him, the officer will be deemed to have reasonable grounds to believe that the one pointed out is guilty of a felony, and may arrest him without warrant.</p> <p>4. - Arrest — Force That May Be Used to Retain Custody of Prisoner. —An officer having a prisoner in charge whom he has lawfully arrested may use such force as is reasonably necessary to retain the custody of the prisoner, and may use such force as is necessary, or appears to him in the exercise of a reasonable discretion to be necessary, to defend himself from the dangers of an assault and battery committed upon him by the prisoner, but he must use no more force than above outlined in the defense of himself.</p> <p>5. Arrest — Assault of Prisoner by Officer — Evidence.—Evidence examined and held that the officer was not authorized to assault the prisoner in his charge, either upon the ground that it was necessary to retain his custody, or to defend the officer from an assault committed by the prisoner.</p>

<p>1. Master and Servant — Constitutional Law — Workmen’s Compensation Act — Validity.—'Notwithstanding section 241 of tke Constitution, providing that whenever the death of a person shall result from an injury inflicted hy negligence or wrongful act, damages may he recovered for such death, and until otherwiso provided hy law, the action to recover such damages shall be prosecuted hy the personal representative of the deceased, a servant may voluntarily accept provisions of the Workmen’s Compensation Act, fixing the amount of recovery in case of death.</p> <p>2. Master and Servant — Workmen’s Compensation Act — Action for Damages — Rights of Servant. — Since the Workmen’s Compensation Act provides for compensation for death in lieu of all other liability, an administrator of a deceased servant, who had accepted the provisions of the act, cannot maintain an action for damages.</p>

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

<p>1. Trial — Transfer of Causes. — Where plaintiff sues on a long and complicated account growing out of a contract, the defendant is entitled to a transfer of the cause to the common law docket, where the account is admitted by a failure to deny, and the answer, set-off and counterclaim present three distinctly legal issues triable by a Jury.</p> <p>2. Trial — Transfer of Causes — Motion for Transfer — When Seasonably Made. — A motion for transfer of a cause to the common law docket for trial of legal issues is seasonable, when made within a reasonable time after the filing of the pleading tendering the issues.</p> <p>1. Pleading — Estoppel—Reply—Sufficiency.—In an action on an account, tie allegations of the reply held insufficient to constitute an estoppel against certain claims set up in the answer, counterclaim and set-off.</p> <p>2. Account — Action On — Pleading—Answer and Counterclaim. — Inconsistent Position. — A party cannot admit the correctness of an account and at the same time insist, hy way of counterclaim, that certain credits were omitted which, would necessarily render the account incorrect.</p> <p>3. Account — Action On — Set-off—Inconsistent Positions. — Where an account stated had no connection with certain claims ior services rendered and expenses incurred under an oral contract of employment, defendant’s admission of the correctness of the account did not preclude him from relying on his set-off for such services and expenses.</p> <p>4. Appeal and Error — Legal Issues — Jury Trial — Denial of Right— Error. — Where defendant’s answer and set-off presented two legal issues which he had the right to have tried hy a jury, the denial of the right was prejudicial error.</p>

<p>1. Criminal Law — Defense of Insanity. — Testimony by defendant that he did not consciously kill his victim, against whom it is proven without contradiction he entertained malice or ill will, is of probative value only in support of the defense of insanity to show the absence of any motive whatever, but has no probative value to show the absence of malice merely of a sanp person.</p> <p>2. Homicide — Drunkenness—Evidence.—Evidence of drunkenness upon the part of one accused of murder, even where malice is proven, is admissible as part of the res gesta, for consideration of the jury in determining whether the punishment should be death or only life imprisonment, but it can not reduce murder ■ to manslaughter .-where pre-existent malice toward the deceased is proven, and may have that effect only where there is no proof, but merely a legal presumption, of malice.</p> <p>3. Homicide — Drunkenness—Evidence.—An instruction upon manslaughter is not authorized by evidence of drunkenness upon the part of the defendant who killed without justification one against whom he is conclusively proven to have entertained a settled ill will or malice.</p>

<p>1. Judicial Sales — Collateral Attack. — A separate action instituted after the term at which a judicial sale of real estate is reported and confirmed, by parties defendants to the action in which the sale was ordered and confirmed, who knew of the sale before confirmation, but did not file exceptions thereto, to set aside the sale and confirmation thereof, is a collateral attack thereof, unless brought under some provision of section 518 of the Civil Code, and can not be maintained unless the judgment of confirmation is absolutely void.</p> <p>2. Judicial Sales — Irregularities in — Confirmation—Exceptions.— Mere irregularities or errors in the advertisement and appraisement do not render the sale or confirmation thereof void, but voidable only, and to be available must be taken advantage of by exceptions filed to the report of the sale.</p>

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

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

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

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

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

<p>Master and Servant — Workmen’s Compensation Act. — In holding that the compensation for specific injuries, provided in section 18 of the Workmen’s Compensation Act, was confined to those injuries and no others, it was not intended to lay down the rule that the Workmen’s Compensation Board could not use the schedule contained in section 18 as a standard by which to measure the compensation to be allowed for injuries not specified, but falling within the general clause awarding compensation, “in all other cases of permanent partial disability,” etc.</p>

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

<p>Appeal and Error — Failure to File Brief — Effect.—In the absence of a brief from the appellant specifying the errors for which a reversal is asked, tke Court of Appeals will assume that no errors were committed by the trial court, or that they have been waived; and, consequently, that the judgment appealed from correctly determined the rights of the parties.</p>

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

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

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

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

<p>1. Waste — Action by Remaindermen Against Purchaser From Life Tenant — Evidence—Sufficiency.—In an action by remaindermen against a purchaser from the life tenant to recover for timber cut and removed, a judgment for $200 held erroneous, since the evidence authorized a finding of only $137.13.</p> <p>2. Vendor and Purchaser — Breach of Warranty — Vendor's Liability for Counsel Fees and Cost. — In an action by remaindermen to correct the record of a deed, and to quiet their title to the remainder interest in the land against a purchaser from the life tenant, by deed containing a covenant of general warranty, and purporting to convey the entire title, the defendant was entitled to recover on the warranty the full amount of the cost and attorneys’ fees incurred in defense of his title, where the correction of the record was a necessary step in order that plaintiffs’ title to the remainder interest in the land might be quieted.</p> <p>3. Estoppel — Vendor and Purchaser — Breach of Warranty — Arbitration and Award — Abandonment.—A purchaser of land is not es-topped to rely on a covenant of warranty by an agreement to arbitrate, where the agreement was never carried out but was abandoned.</p> <p>4. Trusts — Trustees Ex Maleficio — Equitable Liens. — Where vendors not only conveyed land by deed containing a covenant of general warranty, and purporting to convey the entire title, but also fraudulently represented that they were the owners of the entire title, and.it subsequently developed that they were the owners of only a life estate in the property, they became trustees for the purchaser of that portion of the purchase money for which there was no consideration, and the trust attached to land bought with such purchase money, and entitled the- purchaser to an equitable lien thereon.</p> <p>5. Life Estates — Improvements—Charge on Remainderman. — A life tenant, even though he may believe in good faith that hp is the owner of the fee, is not entitled to a lien as against the remainr derman, for the enhancement of the property by reason of his improvements, and the purchaser from the life tenant, though honestly, believing that he acquired the fee, is entitled to no greater rights than the life tenant himself.</p>

<p>1. Master and Servant — Assumption; of Risk.; — A trackman working for an interstate railroad and engaged in interstate commerce, who is injured by flying slivers of steel which come from a common chisel or clawbar, though defective; with which lie is ■working, assumes tlie risk of danger therefrom, and is not entitled to damages, although the suit be prosecuted under the Federal Employers’ Liability Act.</p> <p>2 Master and Servant' — Simple Tool Rule. — A spikemaul, T rail, chisel and clawbar are common tools governed by the simple tool rule, as announced by this court.</p> <p>S. Master and Servant — Defective Appliances — Assumption of Risk. —One who uses without complaint or an assurance of safety from the master, defective common tools with which he is injured, assumes the risk of danger from such defective common tools, and the company may successfully interpose the plea of assumed risk; such conduct is not- contributory negligence on the part of the employe but assumed risk, and is only a defense in cases where the Federal Safety Appliance Act does not cover the tool or instrumentality causing the injury.</p> <p>4. Master and Servant — Assumption of Risk — Contributory Negligence. — Contributory negligence is not a complete defense to an action- for personal injury or death of an employe under the Federal Employers’ Liability Act, but can be received only to reduce the -recovery. Assumed risk is a complete bar to an action in cases where it can be invoked.</p>

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

<p>1. Corporations — Designation: of Agent' Upon Whom Process May be Served. — A corporation which has failed to comply with the requirements of section 571, Ky. Stats., can not, lawfully, do "business in the state of Kentucky, and can not maintain a suit for the protection of a business which is being conducted contrary to law.</p> <p>2. Corporations — Designation of Agent Upon Whom Process May be Served. — A corporation which does business, in this state, without complying with section 571, Ky. Stats., can not make its acts before complying with the statute, valid, by a compliance with it thereafter.</p>

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

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

<p>1. New Trial — Newly Discovered Evidence.1 — Where the issue upon a trial was whether the plaintiff was then suffering from systemic poisoning or tuberculosis, a petition for a new trial alleging that the defendant could prove by the attending physician of plaintiff who died three months after the trial, that he died of tuberculosis, but the witness did not know the duration or contributing causes of the disease, did not state newly discovered facts of such a decisive character on the issue tried as to authorize a new trial, and it was not error to sustain a demurrer thereto.</p> <p>2. Master and Servant — Negligence.—A master having knowledge that the work required of a servant is liable to cause him some injury of which the servant does not know and failing to warn him of any danger, is liable for all the injurious consequences that are proven to have resulted from the negligence directly and without intervening cause, regardless of whether or not the master ought to have anticipated the particular consequences that did result.</p> <p>3. Negligence — Actionable Negligence — Evidence.—Where no injury ought to have been anticipated, as a matter of law there is no actionable negligence, because in the absence of some danger reasonably to have been anticipated there was no duty to warn, but when actionable negligence has been established the proximate results and amount of recovery depend upon the evidence of direct sequences and not upon the defendant’s foresight, and are for the jury.</p> <p>4. Appeal and Error — Instructions—Exceptions.—The defendant to save any question of the insufficiency of an instruction presenting plaintiff’s right to recover, need only object and except to its being given, and is under no duty to suggest by an offered instruction a necessary element of plaintiff’s right of recovery, omitted from such an instruction.</p> <p>5. Appeal and Error — Instructions.—An instruction which omits a necessary element of a party’s theory of the case can not be said as to his adversary to be correct as far as it goes or in any sense, nor does the rule apply to the adverse party that if an instruction is correct as far as it goes any omission not suggested by offered instruction is waived.</p>

<p>1. Waters and Water Courses — Easements.—An upper proprietor has an easement in the land oí his adjoining neighbor below for the natural flow of surface water and that in natural streams, and the lower proprietor may not interfere with either by the construction of dams or otherwise impeding the flow.</p> <p>2. Waters and Water Courses — Surface Waters. — The owner of the upper estate may not collect or concentrate on his land surface water and then empty it in volume upon his adjoining neighbor below, nor can he by artificial means cause increased amounts of water to flow into natural streams sb as to damage the lower proprietor.</p> <p>3. Waters and Water Courses — Damages.—To enable the lower proprietor to maintain a suit for a violation of his rights by the upper proprietor he must show that the damage and injury of which he complains is the proximate result of the alleged wrongful act.</p> <p>4. Appeal and Error — Finding of Chancellor. — Where the evidence is conflicting and the mind is left in doubt as to the truth of the matter, this court will give Weight to the finding of the chancellor and adopt it.</p>

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

<p>1. Judicial Sales — Appraisement—Coercive Sales — Sales for a Division of Proceeds —The statute requiring an appi'aisement applies to all coex'cive sales for the payment of debts, but does not apply to sales of land made under section 490, Civil Code, for a division of the proceeds.</p> <p>2. Partition — Sale of Property — Joint Owners. — Civil Code of Practice, section 490, provides that a vested estate in real property . jointly owned by two or niox’e persons may be sold by order i of a court of equity, though one of them is axx infant, if the estate be in possession and the property cannot be divided without materially impairing its value or the value of plaintiff’s interest therein. By act of 1916 (Acts 1916, chapter 119, page 707) section 490 was amended so as to authorize a sale, “if the estate shall have passed by devise or descent to the widow and heir or heirs of a decedexxt, and the widow shall have a life right in a portion thereof, either as a homestead or dower or by devise, and the said property cannot be divided without materially impairing Its value, or the value of the plaintiff’s interest therein.” Held, that where land descends to a widow and a single heir, they are joint owners within the meaning of the Code as amended, and. a sale thereof on the ground of indivisibility is fully authorized..</p> <p>3. Judicial Sales — Appraisement.—Where the principal purpose of an action was to obtain a sale of land that descended to a widow and an infant heir on the ground of joint ownership and indivisibility, under section 490, Civil Code, as amended by the Act of 1916, and the court had jurisdiction to order a sale on that ground, the fact that a settlement of the estate of the decedent and the payment of his debts were asked as mere incidents to the main relief sought, did not make the sale coercive in character, so as to require an appraisement of the property.</p>

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

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

<p>1. Appeal and Error — Upon What Decisions Are Based. — Docision; of this court are based upon the records filed and not upon affidavits filed with briefs of counsel.</p> <p>2. Judgment — Conflicting Judgments. — Where there are two conflicting judgments rendered by the same court, upon the rights of the> same parties, growing out of the same contract, that which i* later in time will prevail.</p>

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

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

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

<p>1. Witnesses- — Attorney and Client — Privileged Communications.— Although the relationship has ceased between them, an attorney cannot testify as to communications made to him in his professional character without the consent of his client.</p> <p>2. Witnesses — Attorney and Client — Privileged Communications.— In an action against an insurance company for the loss of her property by fire, the defense being that appellee procured the house and contents to be burned for the fraudulent purpose of collecting the insurance, it was permissible to prove a communication made by her in reference to her connection with the burning of the house by the attorney to whom the communications were ' made, such communications not having been made to the attorney in his professional capacity, and therefore not privileged.</p>

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

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

<p>1. Quieting Title — Actual Possession. — An action to quiet title does not lie against a defendant who is in the actual possession of the land.</p> <p>2. Judgment-Actions at Daw — Suits in Equity. — “A judgment given against a plaintiff on the single ground that he has mistaken his remedy or form of action is no har to his subsequent action brought in proper form.” ’</p>

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

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

<p>1. Infants — Action by Parent for Injuries. — A parent may recover of an employer of his infant child for any damage which the infant might suffer on account of injuries received while the child is engaged in a dangerous or hazardous employment to which the employer assigns it, provided the employer knew that the child was an infant, or could have known it by the exercise of ordinary care and the employment was made without the knowledge or consent of the parent.</p> <p>2. Infants — Actions for Injuries — Liability of Employer. — For the employer to be liable in such cases he must either put the infant at a dangerous or hazardous employment, or consent for him to be so engaged and acquiesce therein, and if the infant is placed at a safe and non-hazardous employment and without the knowledge or consent of the employer voluntarily engages for the time in a hazardous employment without the employer’s knowledge or consent, the latter will not be liable to the parent for any injury which the infant might sustain.</p> <p>3. Infants — Damages—Measure of. — The measure of damages in such cases is the value of the infant’s services from the time of the injury until he shall arrive at twenty-one years of age, together with the expenses incurred for medicine and medical treatment.</p>

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

<p>Corporations — Wrongful Receipt of Assets — Accounting.—One ■who owns all of the capital stock of a corporation and who converts to his own use the corporate assets without paying its debts, must respond personally to creditors to the extent of the value of the corporate assets thus wrongfully received by him.</p>

<p>1. Public Lands — Boundaries—Surveys.—A patent excluding all lands within the boundary theretofore surveyed has application only to valid, subsisting legal entries and surveys, and does not include surveys never perfected as required by law.</p> <p>2. Adverse Possession — Boundaries.—To support a title by adverse holding the possession must be continuous, actual, open, notorious and peaceable for at least fifteen years; the exterior boundary lines of the land claimed must be well defined, that is, either actually enclosed or so marked that the land is susceptible of identification by its description, and the possession must have been of such a character and extent as to preclude the idea that the right of possession was in any one else.</p> <p>8. Adverse Possession — Boundaries.-—To extend his possession beyond his close, an adverse claimant, as against seniors in title, must claim and hold the remainder of the land either under color of title or to a well marked boundary for a period of fifteen years.</p> <p>4. Public Lands — Failure to Register Survey. — One entering under a county court land warrant, executing a bond, for cited consideration, not paying for the land and failing to register his survey in the land office within the time specified by statute, legalizing the proceedings, forfeits all rights under the warrant or survey.</p> <p>5. Adverse Possession — Actual Possession. — There must be an actual possession of some part of the land claimed adversely with the intention to hold and possess it all; mere accidental or unintentional holding or possession is not sufficient.</p> <p>6. Appeal and Error — Records—Presumptions.—This court will conclusively presume, after submission, that a record brought here on schedule filed -in the lower court, as prescribed by the Code of Practice, is a complete record.</p>

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

<p>Wills — Allowance to Contestants. — Contestants of a will are not entitled to an allowance out of the income of the estate, to enable them to prepare their contest, even though under the will they are entitled to support out of the income, and would be entitled to whole estate if the will is rejected.</p>

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

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

<p>1. Appeal and Error — When Right to Prosecute Appeal Will Cease— Options. — Where the appellant elects to avail himself of one of two options given him by a judgment to which he excepts and from which he appeals, and the exercise of either option deprives him of a part of the money or property for which he sued, the taking by him of either option does not end or obstruct his right to take or further prosecute the appeal. It is only where he has compromised and settled the demand sued for or matter in controversy with the appellee in satisfaction of the judgment so as to free the parties from its coercive provisions; or where, pending the appeal, conditions have arisen that would make the judgment of the appellate court of no legal effect, that the right to further prosecute the appeal will cease.</p> <p>2. Homestead — How Debtor Entitled to Homestead. — In order to entitle a debtor to a homestead exemption in real estate, of which he is the owner, seized for debt, he must be a bona fide housekeeper with a family in possession of, i. e., residing upon, the property, claiming it as a homestead when levied upon by the attaching or execution creditor; or if not in possession his absence must be temporary and with the fixed intention or purpose existing at the time of leaving it to return to and occupy the property as a homestead. Moreover, he must have acquired the property prior to the creation of the debt or demand to satisfy which it is sought to be subjected to sale.</p> <p>3. Homestead — Abandonment—Exemption.—Although the , debtor may, after acquiring a homestead in real property; before the creation of the debt, leave it teinporarily with the intention to return to and occupy it as a homestead, and even carry such intention into effect by later returning to and occupying the property, if after doing so he abandons it as a homestead and removes to and occupies another piece of property of which he is the owner, and which he acquired after the creation of the debt, with the intention to make it his homestead instead of the property from which he removed, in such event he will not be entitled to a homestead in either piece of property as against the debt of the creditor, and both may be subjected to its payment, unless the second piece of property was purchased with the proceeds of the sale of the first property, in which event it would be exempt from the debt if worth no more than $1,000.00; but if worth more than that sum, only $1,000.00 of its value would be exempt to the debtor.</p> <p>4. Homestead — Evidence.—Evidence in this case examined: Held, that the debtor, a woman, is not entitled to a homestead in either of the two lots levied upon and sold in satisfaction of tlie debt of the execution creditor.</p>

<p>1. Execution — Purchase oí Land at Sheriff’s Sale Under Execution— Liens — Title.—One in possession of land by its purchase at a sheriff’s sale under an execution against the owner and a deed from the sheriff, will, prima facie, be entitled to it as against a lien asserted upon it by another by virtue of a mortgage on the land, made after the purchaser at the execution sale received his deed from the sheriff by one claiming to own it as a vendee of the execution debtor under a deed from the latter. But where it is made to appear that the land had, by a deed of record from the execution debtor, been conveyed the mortgagor before the judgment of the execution creditor against the execution debtor was obtained or before levy of the execution, although after the institution of the action, the mortgage lien asserted by the mortgagee would be superior to the title of the purchaser at the execution sale, unless, as here alleged by the latter, such deed and the mortgage thereafter- executed were fraudulently made to defeat the debt of the execution creditor, of which there is no satisfactory proof in the record of this appeal.</p> <p>2. Appeal and Error — Equitable Actions — Reversal.—Ordinarily an equitable action will, on appeal, be finally disposed of by the appellate court and, if the judgment is reversed, remanded with direction to the lower court to enter such final judgment as will conform to the opinion of the. appellate court. But where, as here appears, the case was prematurely tried in the court below, with respect of which the parties were equally at fault, and on the appeal the confused state of the record renders it practically impossible for the appellate court to intelligently determine the rights of the parties, that court, to prevent injustice to any of them, will reverse the judgment and remand the case for the necessary preparation and another trial in the circuit court.</p>

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

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

<p>1. Easements — Prescription.—It is incumbent upon one claiming an easement or roadway over the lands of another, to establish his right thereto, by grant or prescription.</p> <p>2. Easements — Commissioner’s Report — Failure to Confirm. — In a suit for partition of lands the commissioner appointed to divide the property, made a report in writing dividing the lands into four parts, and designating by metes and bounds a passway from lot No. 4, over and across lots Nos. 1 and 2 to the public highway. This report was filed with the clerk and placed with the other papers in the partition suit, but the report was never recorded, and, the judgment in the case did not mention the roadway recommended in the report, nor did the deeds made by the commissioner to the allottees provide for such roadway. Held, that such unrecorded report of commissioner did not vest in the owner of lot No. 4 an easement over lots Nos. 1 and 2.</p> <p>S. Easements — Commissioner’s Report. — A commissioner’s report has no force or effect upon the subsequent proceeding where the judgment does not refer to it or the deeds follow the recommendations contained in the report.</p>

<p>1. Fraudulent Conveyances — Husband and Wife. — A wife having been deeded certain property by her husband at a time when he was solvent, the property being hers, she is privileged to thereafter dispose of it as she might deem fit, and a conveyance by her of said property, or a portion thereof, to a creditor of her husband is not a preferential conveyance under section 1910 of the Ky. Stats., nor can other creditors of the husband complain.</p> <p>2. Trusts — Parol Testimony. — The objects and purposes of a latent trust or an express parol trust can be given or shown by parol testimony.</p>

<p>1. Trial — Peremptory Instruction, — A peremptory instruction is proper only after admitting every fact shown by the plaintiff’s evidence to be true, as well as all reasonable inferences that can be drawn therefrom, plaintiff fails to establish his case.</p> <p>2. Appeal and Error — AVeight of the Evidence. — Whenever an examination of the record discloses the fact that the verdict r; clearly and palpably against the weight of the evidence it is not only the right but the duty of the court to reverse and remand for a new trial.</p> <p>3. Trial — Argument of Counsel. — Argument of counsel should be limited to matters within the record or to fair and reasonable deductions arising therefrom.</p>

<p>Contracts — Covenant to be Performed — -Pleading and Proof. — On'e who sues upon a contract, which contains a covenant to be performed by him, and upon which the promise of the other party depends, can not recover without alleging and showing the performance of the condition precedent by him.</p>

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

<p>1. Appeal and Error — Workmen’s Compensation Act — Findings of Fact by Board — When Conclusive. — The rule as to the conclusive'ness of findings of fact only applies when there is a disputed issue of fact and on the facts the board makes a finding.</p> <p>2. Appeal and Error — Workmen’s Compensation Act. — Where Facts Are Not Disputed the Question is One of Law — Review by Courts. —If there is no issue of fact or if the facts are undisputed the question becomes one of law and the finding of the board is one of law and not of fact, and the right of the court to review it is authorized by that provision of the law allowing review when the order, decision or award is not in conformity with the act.</p> <p>3. Master and Servant. — Workmen’s Compensation Act — Knowledge of Injury By “Foreman” or “Boss.” — Knowledge of the injury by a "foreman” or "boss” will be the same as if the employer in person had knowledge.</p> <p>4. Master and Servant. — Workmen’s Compensation Act. — “Knowledge of Injury” — What Is. — “Knowledge of the Injury” as used in the statute is not answered by knowledge of an accident or that an employee “got hit” with something. The knowledge that an employe has received an injury must be sufficient to give reasonable information to the employer of the nature of the injury.</p> <p>5. Master and Servant — Workmen’s Compensation Act — Written Notice of Injury — Sufficiency of. — A written notice of the injury must be sufficient to apprise the employer in a general way of the nature of the injury.</p> <p>6. Master and Servant — Workmen’s Compensation Act — Notice of Injury — What Will Excuse. — The failure to give notice may be excused by “mistake or other reasonable cause,” and whether the mistake or other reasonable cause will excuse the failure to give notice is a question to be determined by the facts of the particular case.</p> <p>7. Master and Servant — Workmen’s Compensation Act — Notice of Injury “As Soon As Practicable.”- — The words “as soon as practicable” should be given a liberal construction so as not to defeat without just cause the compensation to which a meritorious claimant is entitled.</p> <p>8. Master and Servant — Workmen’s Compensation Act — Failure to Give Notice — What Will Excuse. — Where the employer, is not prejudiced by the failure to give notice as soon as it might have been given and the failure to give it earlier was occasioned by an honest mistake on the part of the employe his claim should not be rejected on account of the delay in giving notice.</p>

<p>1. Railroads — Injuries to Persons on Tracks — Trespassers or Licensees. — Whether a person injured while on a railroad track is a trespasser or licensee must depend, not on the fact that the accident happened in a city, incorporated town, or at a public crossing, but upon the number of persons using the track at said point.</p> <p>2. Railroads — Trespassers or Licensees. — Whether decedent was á licensee or trespasser held under the evidence a question for the jury.</p> <p>3. Railroads- — Warnings—Lookout.—The duty of a railroad company to give the necessary warnings, keep a lookout and have its trains under reasonable control applies in the yards of the company, if the same are used by the public to such an extent as to constitute the person injured a licensee.</p> <p>i. Pleading — Striking Out Pleading. — The court did- not err in overruling the defendant’s- motion to strike from the petition, the allegations thereof not being objectionable.</p> <p>5. Railroads — Employes—Care Toward General Public. — The care devolving upon railroad employes toward the general public is to be determined by principles of law and not by the rules of the company for the guidance of its employes.</p> <p>6. Appeal and Error — Objections to Rulings of Court — Waiver.—Objections to the rulings of the court should be made during the progress of the trial and will be treated as waived unless proper exceptions are saved.</p> <p>7. Railroads — -Signboards or Warnings — Pedestrians.—The existence of signboards or warnings is not conclusive that a pedestrian is not licensed to use the way. A license to use the tracks may .be acquired by use on the part of the public, regardless of such signboards.</p> <p>8. Trial — Argument of Counsel. — Reasonable latitude should be accorded counsel in the closing argument to the jury, provided the argument be confined to facts shown by the evidence and reasonable deductions therefrom. Argument not supported by the record is improper.</p>

<p>1. Divorce — Restoration of Property. — Where one spouse obtained property from tbe other during marriage and by reason thereof, it should be restored to tbe one from whom it was obtained on a decree of divorce.</p> <p>2. Divorce — Restoration of Property. — Property deeded by tbe bus-band to the wife without consideration during marriage, and money furnished by him to her with which to purchase property are presumed to have been obtained through and by reason of the marriage relation and should be restored by a judgment divorcing the parties.</p>

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

<p>1. Judgment — Court of Continuous Sessions — Power Over Judgments. — A circuit court of continuous sessions has the same power over its judgments, in actions at law, for sixty days after their rendition, as other circuit courts have over their judgments during the term, at which they are rendered.</p> <p>2. Judgment — Court of Continuous Sessions — Power to Vacate or Modify Judgment — A circuit court, of continuous sessions, after sixty days have elapsed from the rendition of a final judgment, has no power to set aside, modify or vacate its judgments, except upon the’ same character of proceedings and for the same reasons, that other circuit courts are authorized to disturb their judgments, after the term had ended, at which they were rendered.</p> <p>3. Judgment — Vacation of Judgment. — If a judgment is void, the court, which rendered it, may vacate it, upon motion, after the term, at which it was rendered.</p> <p>4. Judgment — Default Judgment. — Where a court has jurisdiction of the parties to an action, and the subject matter of the action, and the parties are free from disabilities, a default judgment regularly rendered, which is .within the pleadings and prayer of the petition, is not void.</p>