Volume 184 — Kentucky Reports

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

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

<p>1. Waters and Water Courses — Overflowing Land — Excessive Damages. — In an action against a railroad for diverting a water course, causing it to overflow plaintiff’s land, a verdict of $500.00 damages held excessive in view of the vague and uncertain character of the evidence as to the extent of the damage.</p> <p>2. Waters and Water Courses — Action for Damages — Trial—Questions for Jury. — In an action against a railroad to recover damages resulting from an overflow, caused by an insufficient drain box, statements of the defendant’s engineers that the box was permanent were mere conclusions and were not sufficient to make the question of permanent nuisance one for the jury, where the character and location of the box, and all the surrounding conditions, showed that the nuisance could be readily abated at a reasonable expense.</p>

<p>1. Easements — Passway—Maintenance of Gates. — Where by agreement land is divided between several joint owners, and a pass-way established over said lands for the benefit of the several owners, and gates maintained over the passway by the different owners, the grantee of any of such original owners may in liltej manner maintain a gate or gates.</p> <p>2. Husband and Wife — ’Easements—Husband May Not Bind'Wife as To. — Where the wife is the owner of the land, the husband is without power to bind the wife by writing to surrender her right to maintain gates over and across a passway through her land, unless the wife expressly consents thereto, or the husband is the authorized agent of the wife.</p> <p>3. Frauds, Statute of — Easements.—A writing executed by the husband without consideration, agreeing to surrender the right of the wife as owner of the land to maintain gates across a passway through her lands, is not enforceable against the wife where not signed by her, as she is the party to be charged.</p>

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

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

<p>1. Vendor and Purchaser — Auction Sale of Land — Frauds, Statute of —Memorandum—Signing—Sufficiency of Evidence. — In an action by the vendor of land, sold at public auction, to recover of the purchaser the difference between the auction price and the price obtained at a subsequent sale, evidence examined and held insufficient to show that the memorandum of sale in the auction book was signed by the auctioneer.</p> <p>2. Frauds, Statute of — Vendor and Purchaser — Auction Sale of Land —Authority of Auctioneer — Sufficiency of Memorandum. — An auctioneer is the agent of both parties to the sale, and a memorandum thereof signed by him at the proper time, if otherwise complete,' is sufficient to charge both the vendor and purchaser under the statute of frauds.</p> <p>3. Frauds, Statute of — Vendor and Purchaser — Auction Sale of Land —Authority of Auctioneer — Sufficiency of Memorandum. — Where an auctioneer has full authority to advertise the property and to make all the necessary arrangements for carrying the sale into effect, his authority to hind the vendor does not end with the sale but extends beyond it, and until it is revoked he may properly bind the vendor by a memorandum signed within a reasonable time, but he has no authority to bind the purchaser unless he signs the memorandum contemporaneously with, or immediately after, the sale.</p> <p>4. Frauds, Statute of — Auction Sale of Land — Sufficiency of Memorandum. — An auctioneer’s memorandum of the sale of land made on the next day after the sale, though binding on the vendor, is not binding on the purchaser unless he accepts the memorandum or otherwise assents to the sale.</p>

<p>1. Powers — Validity and Sufficiency of Execution. — Under section 4845 of Kentucky Statutes, where one haying a power of appointment to be exercised by will, devises his whole estate to a person whom in his discretion he has the right to designate, the devise is an execution of the power, although the power may not be mentioned or referred to, unless a contrary intention appears from the will.</p> <p>2. Powers — Persons Entitled to Share Under Will. — When a power of appointment is conferred by will to be exercised as to a class of persons, each one of the class is entitled to a substantial portion' of the estate, but it is not necessary that each of the class shall receive an equal share.</p> <p>3. Powers — Execution of Power. — A deed by the donee of the power of appointment to one of a class she had the right to designate, which referred to the source of the power and which was ineffectual for any purpose unless an exercise thereof, held to be an execution of the power.</p> <p>4. Deeds — Right of Possession Deferred Until Death of Grantor.— An instrument which is a deed in form and in the manner of its execution and which contains apt words of conveyance of the fee in the present tense, but providing that the title should not vest until the death of the grantor, held upon construction as a whole and giving some effect to all of its provisions, to be a deed and not merely testamentary, vesting a present interest in the grantee, with right of possession deferred until death of grantor.</p>

<p>Appeal and Error — Finding of Chancellor — Rule in Equitable Actions. — In an action at law, in which a trial by jury is waived and the issues of fact as w.éll as the law of the case are determined by the circuit court, its findings of fact will, on appeal, be given the same legal effect that would be accorded the verdict of a properly instructed jury. But in an action in equity, in which an appeal is taken from the judgment of the circuit court, a different rule will obtain; which is, that though the Court of Appeals will weigh the evidence for itself, it will not disturb the judgment unless it is found to be unsupported by the weight of the evidence; and if left in doubt from its examination of the evidence whether it supports the judgment, it will in such state of case affirm the judgment.</p>

<p>1. Trial — Verdict—Sufficiency of Evidence. — In an action to recover balance.due for banana crate bottoms, where the purchaser counterclaimed for damages on account of defective material, the verdict of the jury held not flagrantly against the evidence.</p> <p>2. Trial — Action for Articles Furnished — Counterclaim for Damages. : — Instructions.—"Where it, is sought to recover for articles furnished and the defendant counterclaims for damages for defective material, it is proper to instruct the jury to find for plaintiff the contract price, and for the defendant the amount of damages for defective material, and render judgment for the difference in favor of the party entitled thereto.</p> <p>3. Appeal and Error — Extent of Error — De Minimis — Reversal.— Under the maxim, “De minimis non curat lex,” a judgment for $1,004.00 will not be reversed for error operating to the appellant’s prejudice in the sum of only $7.42.</p>

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

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

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

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

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

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

<p>Taxation — Right of Appeal From Action of Supervisors. — By section 4128, Vol. 3, Kentucky Statutes, the property owner and the taxing authority are given like rights of appeal from the action of the Board of Supervisors in listing property for taxation, and also from the judgments of the quarterly and circuit courts, regardless of which party prosecuted the original appeal.</p>

<p>1. Appeal and Error — Depositions—Exceptions—Necessity of Ruling. —Waiver.—An error in the admission of improper evidence by deposition is waived, unless an exception is saved and acted on by the trial court.</p> <p>2. Gifts — Gift Inter Vivos — -What Constitutes. — To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery by the donor and acceptance by the donee. Where future control over the property . remains in the donor until his death, there is no valid gift inter vivos.</p> <p>3. Gifts — Gift Inter Vivos. — A valid gift inter vivos, with postponement of enjoyment, may be made if there is an unconditional delivery, and donor parts with all present and future control over the property.</p> <p>4. Gifts — Gift Inter Vivos — Delivery.—It is not necessary to a valid gift inter vivos that delivery be made to the donee personally. It may be made to a third person as agent or trustee for the use of the donee.</p> <p>5. Gifts — Gift Inter Vivos — Delivery—Trust.—Where property is delivered to one with the distinct agreement that he shall distribute certain portions of it to others and shall retain a portion for himself, he is not the agent of the donor but is himself a donee, and a trustee for the other donees, and a delivery to him is sufficient.</p> <p>6. Gifts — Gift Inter Vivos — Acceptance.—The acceptance of a gift by one who is a joint donee and trustee for the other donees is not only sufficient as to him but inures to the benefit of the other donees.</p>

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

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

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

<p>1. Municipal Corporations — Power to Create Indebtedness — Emergency. — To authorize a municipality to incur indebtedness in excess of the rates prescribed by section 158, of the Constitution, it must be shown, that there exists an emergency, requiring the incurrence of the indebtedness to protect the public health and safety.</p> <p>2. Municipal Corporations — Indebtedness—Emergency.—An emergency, within the meaning of section 158 of the Constitution, must be some unforeseen, or unexpected occasion for action, a pressing necessity, that demands, a remedy, at once.</p> <p>3. Municipal Corporations — Indebtedness—Health.—The emergency provided for, by section 158, of the Constitution, is limited to the perils to the 'public health and safety, and eliminates any mere apparent necessities growing out of conveniences, or out' of condition's, which are merely inconvenient to be borne.</p> <p>:4. , Municipal Corporations — Indebtedness—Emergency.—The question : ■ ■ of whether an emergency exists, within the meaning of section ■158, of the Constitution, must be determined from the particular ■facts of each case.</p> <p>5. ' Municipal Corporations — Indebtedness—Emergency.—The necessity for an electrical lighting plant and system, in a city of the fifth class, is not an emergency within the meaning of section 158, of the Constitution, although the plant has been in use in • the city for many years.</p>

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

<p>1. Elections — Contest— Grounds — Petition.—In a contest for an office required by law to be filled at a general (i. legular) election, tbe contestant must file in tbe circuit court bis petition containing tbe grounds of contest within ten days after the canvass of the votes east at such election and ascertainment of the result shall have been made by the County Board of Election Commissioners.</p> <p>2. Elections — Contest—Grounds—Petition.-—The filing in the circuit court of the petition and grounds of contest within ten days after the issuance of the certificate of election to the successful candidate, will not meet the requirements of Kentucky Statutes, section 1596a, subsection 12, regulating such contests. As in this case the petition containing the grounds of contest was not filed within ten days after the Board of Election Commissioners canvassed the vote and ascertained the result of the election, the circuit court properly dismissed the petition.</p>

<p>1. Lis Pendens — Form and Requisites in General. — A creditor in order to protect an execution lien upon land must, during the pendency of the action to enforce the lien, file in the office of the clerk of the county court of the county wherein the land is situated the lis pendens notice required by section 2358a, Kentucky Statutes.</p> <p>2. Lis Pendens — Form and Requisites in General. — One who buys land without actual notice of the pendency of an action to enforce a lien, created by the levy of an execution, will be protected in his purchase as an innocent purchaser unless the creditor has filed the lis pendens notice required by section 2358a, Kentucky Statutes.</p> <p>3. Interest in Property or Proceeds — Parties—Intervention of Parties. — Under section '29, Civil Code, any person claiming a right to or interest in the property, or its proceeds, may during the pendency of an action and at any time before a disposition of the property is had, file in the action his verified petition, stating his cause, and this petition should be treated as his answer, and be allowed to support his claim by evidence.</p>

<p>Appeal and Error — Requisite Amount or Value. — Judgments awarding applicants $50 each, as a reward for apprehending a mule thief, being judgments for the recovery of money, under section 950, Kentucky Statutes, and being for less than $200, this court has not jurisdiction of the appeal.</p>

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

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

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

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

<p>Appeal and Error — Finding of Chancellor. — Evidence upon the issue whether contract sued on was contract of the alleged maker, examined and held to sustain decision of the chancellor dismissing the petition.</p>

<p>1. Assignments for Benefit of Creditors — Preferences.—The preference given creditors of an assignor by the last clause of section 74 of the statutes is only upon debts which the assignor owed in his trust capacity, and does not extend to a personal obligation of the assignor upon which there was a contingent liability upon his part to the trustor, but which never accrued.</p> <p>2. Assignments for Benefit of Creditors — Discretion.—Sections 90 and 96 of the statutes expressly confer upon county and circuit courts a sound judicial discretion to permit claims to be filed or not which are presented by a creditor of an assignor more than three months after the time fixed for their presentation and before a final distribution, and such discretion was not abused by the chancellor in this action in refusing to permit claims to be filed nearly nine years after such date, when to have done so would have been prejudicial to the rights of the assignee and other creditors.</p> <p>3. Assignments for Benefit of Creditors — Cemeteries.—Where a public cemetery was a part of the assigned property, and was held under title which necessitated its operation, it was not error for the court to charge to a separate cemetery fund the allowance to the assignee for his services in managing and directing the operation of same, until it could be sold advantageously, even though an undivided interest therein was in lien and there were unincumbered assets, since it was an unavoidable expense if there had been no suit for a settlement.</p>

<p>1. Bills and Notes — Performance of Obligation — Negotiable Instruments. — A party to a negotiable instrument bas tbe right to insist as a condition precedent to bis performing any part of its obligation before maturity that tbe instrument be presented by tbe one insisting upon tbé performance.</p> <p>8. Bills and Notes — Designation by Statute as to Negotiability. — It is competent for tbe legislature by statute to designate wbat contracts may be negotiable and to confer upon them tbe qualities of commercial paper, provided such, a statute is not in conflict with any constitutional provision.</p> <p>3. Warehousemen — Warehouse Receipts — Negotiable Instruments. — ■ Section 4814a of Kentucky Statutes authorizes the issual of warehouse receipts by those engaged in warehousing tobacco to the one delivering tobacco to it, which receipts subsection 3 of the section,, supra, declares shall be negotiable, possessing the characteristics of bills of exchange and with like remedy thereon, and when so issued they possess such qualities although they may be essentially different from negotiable instruments under the law merchant or negotiable instruments act.</p> <p>4. Warehousemen — Warehouse Receipts. — When a tobacc.o warehouse company issues such a receipt it has the right to require the presentation of the receipt before performing any of the obligations contained therein, and where one of such obligations is to issue a designated amount of stock in the company to the holder, it can not be required to issue the stock except upon presentation of the receipt.</p> <p>5. Contracts — Performance.—When no time is fixed for the performance of a contract or some condition precedent thereto, the law requires that performance shall be made within a reasonable time after the execution of the contract, or after the precedent condition can be performed.</p> <p>6. Contracts — Performance.—What is a reasonable time within this provision of the law of contracts depends upon the facts and circumstances of each case, and where the facts are undisputed it is a question of law for the court.</p> <p>7. Warehousemen — Warehouse Receipts — Negotiable Instruments.— Where one is entitled to stock to be issued pursuant to provisions contained in a negotiable warehouse receipt, it is his duty to procure or have his agent to procure the warehouse receipts entitling him to the stock and present them to the company before he can demand the issue of the stock, and if he has sold the stock, it is his duty to perform such precedent conditions before he can demand of his purchaser performance of the contract on his part; and when no time is fixed in the contract of sale for the delivery of the stock, such precedent conditions must be performed by the seller within a reasonable time .after the company is in condition to issue the stock.</p> <p>8. Warehousemen — Warehouse Receipts — Issuance of Stock. — A delay on the part of the seller to perform such precedent conditions and to obtain the stock agreed to be sold for a period of ten months after he was entitled to have the stock issued is an unreasonable time, and the purchaser will not be compelled to perform his part of the contract.</p> <p>9. Warehousemen — Sale of Stock — Warehouse Receipt. — Plaintiff sold defendant stock in the Burley Tobacco Company, there being no time fixed for the delivery of the stock. Plaintiff was entitled to have it issued on presentation of the warehouse receipts containing the agreement to issue it but he failed to do so from June until the next May. Held, that his unreasonable delay in procuring the stock justified the defendant in declining to accept it.</p>

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

<p>1, Insurance — Accident Insurance — Validity of Policy. — Provision in an accident policy that the policy would be void if the insured left the employment of the company without having earned sufficient wages to make the first payment, or if he collected or disposed of his wages so earned, not leaving enough to pay said premium, was valid and binding; so also the provision that the * insured would not revoke, cancel or annul the order of assignment given to his employer to insure payment o£ the premium.</p> <p>2. Insurance — Accident Insurance — Recovery Under Policy. — Where insured prior to the due date of the first installment of premium on an accident policy had not earned sufficient money to pay said first installment and had, by a subsequent assignment, withdrawn the money so earned and left the employment of the company, he so violated the provision of the policy that no recovery could be had thereunder.</p>

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

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

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

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

<p>1. "Witnesses — Credibility—Cross-Examination—Character Witnesses. —Where defendant, charged with homicide," offered evidence of his good reputation for peace and good order, it was proper to cross-examine the witnesses as to whether they had heard rumors or reports of particular acts of misconduct on the part of the defendant, not for the purpose of proving such acts, but for the sole purpose of testing the accuracy and credibility of the witnesses.</p> <p>2. Criminal Law — Instructions—Limiting Effect of Evidence. — Where such evidence is objected to, or a motion is made to limit its effect, its admission should be accompanied by an admonition that it is limited to the purpose for which it is admitted, and is not to be considered as substantive evidence of the defendant’s guilt of the offense charged.</p> <p>3. Criminal Law — Instructions—Limiting Effect of Testimony. — A witness may be contradicted by proving that he has, at another time or place, made a different statement from -that contained in his present testimony, but when evidence of such contradictory statements is admitted, the court should instruct the jury that it is only admissible for the purpose of impeaching the credibility of the witness, if it does so impeach him, and for no other purpose.</p> <p>4. Homicide — Appeal—Instructions.—Where the instructions substantially state the law of the case, a conviction of homicide will not be reversed for slight inaccuracies.</p>

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

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

<p>1. Dis Pendens — Right to Property. — A pendente lite purchaser takes the property with no greater rights, than his vendor.</p> <p>2. Lis Pendens — Equities—Notice.—One who purchases property from one of the litigants, during the pendency of an action, which involves the ownership of the property or equities in it, with actual knowledge of the equities of the parties, takes it, subject to the judgment in the action.</p> <p>S. Lis Pendens — Purchaser—Knowledge of Equities — Appeal.— Where the right of appeal exists, the appeal of an action from a judgment of the court of original jurisdiction, to the Court of Appeals, is a continuation of the action, and if the appealing party prosecutes his appeal with diligence, one who purchases the property, in controversy, from one of the litigants, after the judgment, appealed from, is rendered and before judgment upon the appeal, with actual knowledge of the equities of the other parties, is a pendente lite purchaser.</p>

<p>1. Criminal Law — Bastardy—Evidence,—Testimony by tbe father of tbe prosecuting witness that she told him several hours after tbe birth of her child that the defendant was its father was incompetent, and its admission over defendant’s objection held to be under the circumstances of this case prejudicial error.</p> <p>2. Criminal Law — Argument and Conduct of Counsel. — Statement by the Commonwealth attorney in the presence and hearing of the jury when they announced to the court their inability to agree on a verdict: “Send them bach. I am tired of trying these cases at the expense of the Commonwealth,” -held to be improper and prejudicial.</p>

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

<p>1. Master and Servant — Mines and Mining — Rules—Construction. — A mine rule providing, “No employes except those connected with the operation of the motor or trip, will he allowed to ride on the locomotive or trip of loaded ears, and all others are strictly forbidden to get off or on any motor trip while the same is in motion, etc.,” is confined to cars drawn by a motor, and does not apply to a car drawn by a mule.</p> <p>2. Master ard Servant — Workmen's Compensation Act — Rules, Violation of — Contributory Negligence. — Where an employe’s violation of the rule has contributed to his injuries, as a proximate cause thereof, such violation is contributory negligence within the meaning of the Workmen’s Compensation Act abolishing that defense, if the employer has not elected to operate under the act.</p> <p>3. Master and Servant — Mines and Mining — Injury to Servant — Duty cf Master. — A mining company was under no duty to a trackman, not connected with the operation of cars, to set the brakes on empty ears in such a way as to prevent them from colliding with the loaded car on which the trackman was riding, unless it was customary for the trackmen to ride on loaded cars, with the knowledge of those in charge of the mine, in going in, out of, or‘about the mine.</p> <p>4. Master and Servant — Question for Jury. — Where there was some evidence of such a custom, the question was for the jury, and a peremptory was properly refused.</p> <p>.5. Master and Servant — Trial—Instructions.—In such a case, the court erred in assuming in its instructions that defendant was negligent in not setting the brakes properly, instead of making the question of negligence depend on whether it was customary for trackmen, not connected with the operation of cars, to ride on loaded cars, with the knowledge of those in charge of the mine, in going .in, out of, or about the mine.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch No. 3).</p>

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

<p>1. Pleading — Relief.—A litigant will be allowed the relief which he seeks if his pleadings state facts sufficient to entitle him thereto without his expressly naming the legal principle upon which he. relies.</p> <p>2. Insurance — Forfeiture of Policy. — An insurance company may forfeit a policy for the non-payment of a premium note when due, provided either the policy or the note contains provisions for such forfeiture, but when this is so the company will waive the forj feiture if after the maturity of the note it treats it as an asset and makes unconditional demand of the insured for its payment, and when the company has elected in such manner to waive the forfeiture it may not thereafter rescind the waiver and rely upon the forfeiture, since it will be required to stand by the election which it made.</p> <p>3. Insurance — Forfeiture of Policy. — Forfeitures are not favored in the law, and unless the company clearly provided therefor it will not be allowed to insist upon it, and if neither the policy nor the note given for the premium nor any other writing forming a part of the policy or the payment of the premium provides in clear language for a forfeiture upon non-payment of the note, no such consequences will attach to its non-payment.</p> <p>4. Insurance — Forfeiture of Policy — Non-Payment of Premiums.— If the language employed by an insurance company is susceptible of two constructions, one of which avoids the policy and the other keeps it alive, the latter construction will be adopted as more favorable to the insured, and where a note given for a premium makes no provision for the forfeiture of a policy upon its nonpayment, and the policy provides for a forfeiture only when a premium or a note given for a loan shall not be paid, this will not be construed to include the non-payment of a premium note and no forfeiture will result from its non-payment.</p> <p>5. Insurance — Forfeiture of Policy. — When an insurance company wrongfully forfeits a policy and notifies the insured that it is cancelled, the latter will not be required to tender subsequent premiums when they become due, unless after such wrongful cancellaton the company informs him that it will accept the premium and reinstate the policy, but in such case the insurer, upon a settlement of the policy, will be entitled to a credit for the amount of unpaid premiums with interest from their respective due dates.</p>

<p>1. Homicide — Evidence—Instructions.—In prosecutions under an indictment for murder where the testimony is entirely circumstantial with no eyewitness to the killing, it is the duty of the court to instruct the jury upon the whole law of the case, including one on manslaughter and self-defense, unless the circumstances and physical facts are such as to preclude the possibility of the homicide being committed in any other way except with malice aforethought, in which case no instruction upon self-defense, nor upon any degree of offense less than murder should be given.</p> <p>2. Homicide — Evidence.—While it is extremely doubtful whether the evidence in this case was sufficient to authorize a verdict of conviction, that question is not decided, since there will have to be a new trial, in which the Commonwealth might strenghten its evidence.</p>

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

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

<p>1. Contracts — Terms of Written Contract May be Varied. — The terms of a written contract may be varied by verbal agreement of all parties.</p> <p>2. Contracts — Quantum Meruit. — A provision in a contract that tbe consideration was not to be paid until tbe whole contract was completed and the lumber sold and paid for, did not prevent the contractor from recovering on the quantum meruit where the contractee wrongfully entered and took control of the work and ousted the contractor.</p> <p>3. Appeal and Error — Finding of Chancellor. — The finding of fact by a' chancellor will not be disturbed unless against the weight of the evidence.</p>

<p>1. Depositions — Nature and Form of Proceeding — Infants.—Depositions to be read against infants alone, not under tbe disability of coverture, must be taken upon interrogatories, as provided in sec. 574, Civil Code.</p> <p>2. Infants — Sale of Infants’ Land. — Where the lands of infants are sold at a decretal sale under an erroneous judgment, a bona Me purchaser within sec. 391 of the Civil Code will not be disturbed.</p>

<p>1. Action — Service of Summons — Answer.—Where a summons was issued upon the filing of the petition commanding the defendant, who resided in a county other than the one in which the action was brought, to answer in twenty days after its service upon him; and the summons was made returnable “within twenty days after the service thereof,” the defendant was not required to answer until the first day of the term beginning twenty days after the service of the summons upon him. And although the summons was issued to and placed in the hands of the sheriff of the county in which the action was brought and was duly executed in su’ch county upon the defendant, as it was executed twenty days before the first term of the circuit court beginning after its execution, it was sufficient for the defendant to answer on the first day of such term. Appellant could not complain that he was served with the summons in the county twenty, instead of ten, days before the next succeeding term of court, as the additional time gave him greater means for preparing and making his defense.</p> <p>2. Pleading — Sufficiency of Answer. — As the answer and counterclaim of the defendant put in issue every material averment of the petition, in the absence of evidence sustaining the averments of the petition, or of an order showing that the answer and counterclaim were withdrawn or for good cause striken from the record, it was error for the trial court to render a default judgment in behalf of the plaintiff.</p> <p>3. Pleading — Typewritten Signature. — The typewritten signature of a party or his attorney to a pleading, if made or authorized by such party or attorney, is a sufficient compliance with section 115 Civil Code, requiring pleadings to “be signed by the parties who file them or by their attorneys.”</p>

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

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

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

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

<p>1. Partnership — Compensation—Evidence.—To entitle one partner to a salary or compensation the proof of a contract to that effect must he clear and convincing; it is not sufficient that the claimant had control of the business or performed the major portion of the work.</p> <p>2. Pleading — Intervening Petition. — The allegations of an intervening petition not being denied they will, npon trial, be taken as confessed.</p>

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

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

<p>Taxation — Taxation of Corporations — Business Transacted. — The words, “business transacted” as used in section 4189c, volume 3, Ky. Stats., include not only selling operations, but any and every kind of business transaction of a corporation that is legally doing business in the state.</p>

<p>1. Joint Tenancy — Joint Owners — Agency.—Where the only issue of fact is whether or not one of two joint owners was acting as agent of the other in the sale of the whole property, testimony by one party of the existence of such agency, though contradicted by the other, and the correspondence between them tending to corroborate the former, though not conclusively, held to be sufficient evidence to support the verdict sustaining the agency.</p> <p>2. Joint Tenancy — Joint Owners — Accounting.—Where one joint owner sold the whole property and received therefrom $12,500.00, he was liable to account therefor to the other if in making the sale he was acting as agent for the latter, whether such agency was the result of previous agreement or subsequent ratification.</p> <p>3. Joint Tenancy — Liability of Joint Owners. — The father of one joint owner who received from his son a part of the purchase price due the other joint owner, without legal consideration therefor and with knowledge of the facts, is liable therefor to the latter.</p> <p>4. Trial — Pleading—-When Properly Rejected. — An amended answer and cross-petition offered after the case was called for trial alleging the plaintiff held only legal title and seeking to make the alleged equitable owners, parties, properly rejected.</p>

<p>1. Trial — Peremptory Instruction. — A peremptory instruction should not be given except where, taking all the evidence together,' and every reasonable inference to be drawn therefrom, the party against whom it is offered has failed to make out a case. And where there is contradiction in the testimony upon any particular issue, it should be submitted to the jury under appropriate instructions.</p> <p>2. Railroads — Crossings—Care to be Exercised in Approaching. — If where a highway crosses a railroad track, on account of the physical surroundings or other obstructions, the crossing is unusually dangerous, both the traveler and the railroad company should exercise care commensurate with the danger in approaching the crossing.</p> <p>3. Railroads — Crossings—Signals.—If such crossing is both dangerous and situated in a town or a populous community with an extensive amount of travel over it, the duty is imposed upon the railroad company to exercise ordinary care for the safety of those using the crossing, and if such ordinary care should call for the'use of other means to warn the traveler of the approach of the train than the usual warnings and signals, it is the duty of the company to use such other means, and it is proper to submit to the jury under the circumstances whether such additional means should be used.</p> <p>4. Railroads — Crossings—Speed of Trains. — If the crossing is of the character indicated, and the safety of the traveler on the highway demands it, it would be the duty of the company to operate its trains over the crossing at such reasonable rate of speed as due regard for the safety of the traveler would require. But1 this does not demand of it that it should run its trains at such a speed as to be able to stop the train and prevent the accident, or to afford the traveler in every case sufficient time to- get off of the crossing.</p> <p>5. Carriers — Action for Death of Passenger — Evidence.—Where the accident results in killing the traveler, which the railroad company admits, it is improper to admit testimony showing the character of injuries inflicted upon the deceased, and likewise it is error in actions to recover damages for injuries inflicted at crossings to permit testimony as to the speed of the train upon other days and at other places on the same day to be introduced.</p> <p>6. Negligence — Care Required in Use of Automobiles — Stop, Look and Listen Doctrine. — The law does not demand any higher duty of one riding in an automobile or an automobile truck when approaching a railroad crossing than it requires of one traveling in any other way, and since the rule of “stop, look and listen” ■ does 110L apply to1 the ordinary traveler in this state, it will not. apply to one traveling in an automobile or automobile truck.</p> <p>7. Negligence — Automobile—Care in Use of. — One riding in an automobile truck who does not have .charge of the machine, and who is not connected in any way with the business of the driver, will not be responsible for the negligence of the driver, but only for that of himself, if any, and if he is not negligent he may recover for any injuries which he may sustain unless the negligence of thei-driver was the sole cause of the accident.</p> <p>8. Negligence — Crossing Railroad Tracks. — It is not negligence per se for a telegraph operator in the employ of a railroad company to attempt to cross the company’s track over a public highway at the time a train is due to arrive, but the fact is competent evidence as bearing upon his negligence in attempting to go-over the crossing.</p>

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

<p>Appeal and Error — Appeals—Time for Trial — Premature Submission — Practice.'—An appeal granted by the Clerk of the Court of Appeals does not stand for trial until the appellee has been summoned or has entered his appearance, and where a case has been submitted before either of these things has been done, the submission is premature and the order of • submission will be set aside and the case continued.</p>

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

<p>1. Municipal Corporations — Exercise of -Care to Keep Streets in Safe Condition. — A municipality is under the duty of exercising ordinary care to keep and maintain its streets and pavements in reasonably safe condition for travel, but it is not an insurer of the safety of persons traveling thereon.</p> <p>2. Municipal Corporations — Unsafe Condition of Pavement — Personal Injuries.- — Where a municipality allows a property owner to use the pavement adjacent to his property for advertising purposes, and the use of the pavement is such as to place an extra burden and servitude thereon, and the use of the pavement by the property owner renders it not reasonably safe, and ¡by reason of its unsafe condition a pedestrian is caused to fall and is injured, both the city that allowed such use of the pavement, and the property owner who made such use of the pavement, are responsible in damages at the suit of the injured person, and they may be joined in one action.</p> <p>3. Municipal Corporations — Use of Pavement for Advertising Purposes — Personal Injuries. — A word placed in the pavement but which does not interfere with its free use by the public, nor render it dangerous or unsafe, will not of itself attach liability to the property owner for injury to one falling upon such pavement; but a pavement made of slick, slippery tiling, used for advertising purposes by a theater, is such a use and servitude of the pavement by the abutting proprietor as will fix responsibility upon him for injury where such use was the proximate cause thereof.</p>

<p>1. Schools and School Districts — Graded Common Schools. — The requirement in section 4464 of the statutes that the board of education shall approve the petition for the establishment of a graded school is mandatory, and an order of the county judge calling an election to establish the school without such approval is void.</p> <p>2. Schools and School Districts — Graded Common Schools. — The approval by the county hoard of education as required by the statute is not confined to an approval of the proposition to establish the district, but also includes its approval of the boundaries of the district.</p> <p>3. Schools and School Districts — Graded Common Schools. — The board of education after having given its approval has the right, in the exercise of a sound discretion — and especially if it did so through mistake — to withdraw such approval at any time before final action taken on the petition by the county judge.</p> <p>4. Schools and School Districts — Graded Common Schools. — If after having approved the petition the county board of education should for any legal reason withdraw its approval of either the proposition to establish the school or of the boundaries of the proposed district before final action by the county judge, the latter would be without jurisdiction to act upon the petition, and an order made by him ignoring such withdrawal and calling the election is void.</p>

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

<p>1. Insurance — Reserve—Paid Up Insurance. — Under section 659, Ky. Stats., the entire reserve, or net value of a policy, shall be used in the purchase of paid up or extended insurance.</p> <p>2. Insurance — Construction • of Policy. — Where a policy of insurance contains terms more advantageous to the insured than are required by statute the provisions of the statute will be treated as a minimum of value; the policy and statute will be considered together and that construction given which is most favorable to the insured and such as will sustain the contract.</p> <p>3. Insurance — Lapse of Policy for Non-Payment of Premium. — Where a policy lapsed for non-payment of the premium and where, after deducting from the reserve' and accrued dividend the indebtedness on the policy, there is a balance remaining more than sufficient to pay the gross premium for new, original term insurance for the face of the policy, less the indebtedness at insured’s attained age, and for the period between the lapse and death, a recovery under the policy will be upheld.</p> <p>4. Insurance — Construction of Policy.' — Statutes already existing relating to insurance in force at the time the policy is issued must • be regarded as entering into and forming a part of the policy to the same effect as if embodied therein.</p> <p>5. Insurance — Construction of Policy. — Different provisions of a contract of insurance must be so' construed, if it can be reasonably done, as to give effect to each, and where two interpretations equally fair may be made that which allows a greater indemnity -will prevail.</p> <p>•6. Insurance — Construction of Policy.' — Where under the terms of a policy its meaning is doubtful a construction will be given which is favorable to the insured.</p> <p>7. Insurance — Construction of Policy.' — Where the policy contains inconsistent or contradictory provisions effect will be given to those which sustain rather than those which will forfeit the contract.. .</p>

<p>1. Pleading — Tender of Answer — Discretion.—Counsel from a conversation with his client understood that a case had been settled and for this reason ceased to follow the case and a default judgment was entered. When the error was discovered a duly verified answer was tendered setting up a defense, the tender having been made before a trial on the default judgment, it was an abuse of discretion on the part of the trial court to refuse to allow the answer to1 he filed.</p> <p>2. Pleading — -Tender of Answer. — A litigant should he accorded every opportunity of presenting his defense, and where through misunderstanding a default judgment is entered, upon proper diligence being shown, and upon tender of a verified answer, the court should have permitted the answer to he filed.</p>

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

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

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

<p>1. Vendor and Purchaser — Bond for Conveyance of Land. — One who holds a title bond for land may authorize his grantor, either verbally or in writing, to sell and convey the land; and the conveyance of the legal title holder will conclude the equitable interest of the title bond holder.</p> <p>2. Vendor and Purchaser — Agency—Consideration.—No consideration is required to support a power to sell land or an agency for that purpose.</p> <p>3. Frauds, Statute of — Parol Authority ter Sell Land — Agency.—An agency to sell land may be created by parol; no writing is necessary as such relation does not come within the statute of frauds.</p> <p>4. Vendor and Purchaser — Title Bond — -Agency—Estoppel.—-Where one who holds a title bond for land, writes another directing him to sell and convey the land, and such letter is exhibited to the prospective purchaser, who thereupon buys the land from the agent, the holder of the title bond is thereafter estopped to assert claim to the land.</p>

<p>1. Deeds — Construction—“Heirs,” as a Word of Purchase. — In a deed, the consideration of which was paid by J. H. W., and the parties of the second part were the wife of J. H. W., “and her heirs and the' heirs of J. H. W.,” and the grant was to the wife of J. H. W., “her heirs and the heirs of J. H. W. their heirs and assigns,” and the habendum was to the wife of J. H. W., “her heirs and the heirs of J. H. W. their heirs forever,” the words “heirs and the heirs of J. H. W.” will be construed as words of purchase and not of limitation, so that the wife of J. H. W. will take a life estate only and her children and the children of J. H. W. will take the remainder.</p> <p>2. Life Estates — Adverse Possession — Remaindermen.—Until the death of the life tenant, remaindermen have no right of possession; consequently, neither the life tenant nor anyone claiming through her can hold adversely to the remaindermen while the life tenant is alive.</p> <p>3. Appeal and Error — Absence of Parties in Interest — Action of Chancellor — Propriety.—The refusal of the chancellor to pass on questions affecting persons who were not parties to the action was proper.</p> <p>4. Appeal and Error — Remaindermen—Action to be Adjudged Owners of the Land — Judgment—Error.—Where seventeen persons were joint owners of remainder interests in a tract of land, it was error to adjudge that nine of them were the owners of‘ a nine-thirteenths interest in remainder, it not appearing that they had acquired the interests of the other owners.</p>

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

<p>1. Partnership — -Creation and Requisites. — A partnership can not engage in business under a fictitious name until it has filed in the office of the clerk of the county court of the county, or counties, wherein it proposes to do’ business, the certificate required by section 199b, Kentucky Statutes.</p> <p>2. Partnership — Fictitious Name — Contract Obtained by. — A contract obtained by a partnership operating under a fictitious name, which has not filed in the county wherein the contract is made, the certificate required by section 199b, Kentucky Statutes, is voidable at the option of the innocent party but not void.</p> <p>3. New Trial — Vacation of Judgment — Pleading.—After a judgment by default has been entered, a claimant of property affected by the judgment, in order to be entitled to a vacation of the judgment and a new trial, inust not only present a justification by affidavit for his delay in filing his plea, but must present a pleading which, if true, would entitle him to the relief sought.</p>

<p>1. Adverse Possession — Title from Commonwealth. — Where all litigants claim title to the land in controversy under á common source, it is unnecessary for the plaintiff to trace the title from-the Commonwealth to the common source.</p> <p>2. Taxation — Tax Deeds — Title—Burden of Proof. — While a tax dee® is prima facie evidence of title in the grantee and his privies, yet when such deed is attacked for irregularities appearing upon its face or in the tax sale leading up to it, and these irregularities are confessed or made to appear, the burden shifts to the grantee and his privies in the deed to sustain the deed.</p> <p>3. Taxation — Tax Deeds — Defective Deeds. — The following are such irregularities as will vitiate a tax deed: Failure to file an affidavit in writing, as required by section 4151, Kentucky Statutes, before amended in 1908; sale for more than the true amount of taxes, penalties and cost due; failure to give the notice required by sections 4153 and 4156, Kentucky Statutes; failure-of the sheriff to mail to the taxpayer a post card 15 days before . sale as per section 4149 There are other steps which are also essential.</p> <p>4. Adverse Possession — Joint Tenants. — One joint tenant can not acquire title by adverse possession to the whole estate except by such acts or conduct as will amount to a disseizin of his fellows- and bring knowledge to them of his purpose and intention to holffi and claim in severalty.</p> <p>5. Taxation — Limitation of Actions. — The five year statute of limitations contained in subsections 2515 and 2519, Kentucky Statutes,, has no application to the tax deed under consideration.</p> <p>6. Taxation — Tax Deeds. — -A tax deed which is void for irregularities confers no title upon the grantee and he would acquire no title, by holding under it until the lapse of the 15-year period.</p> <p>7. Joint Tenancy — Lease—Oils—Royalties.—Where one joint owner leases the common property for oil and gas, and the lessee enters on the premises, sinks wells, develops the property, both th© grantor in the lease and the lessee who takes and appropriates the minerals from the land are responsible to the outstanding co-tenants for the reasonable value of their share of such minerals in place, and- the lessor in this case is responsible for the fair and reasonable rental value of two-fifths of all royalties which he has received from oil or other minerals.</p> <p>8. Joint -Tenancy — Minerals—Division of Proceeds. — Where lands-' are chiefly valuable for minerals beneath the surface, and it is. impossible to divide the lands in kind according to their value for, mineral products, the only resort is to sell the whole ,of,th®. property and divide the proceeds among the several owners as itheir interests appear.</p>

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

<p>1. Rape — Indictment and Information — Detaining Woman Against Her Will. — It is not necessary to charge in an indictment for taking and detaining a woman, under section 1158, Ky. Stats.,, that it was done feloniously, as the statute does not require that the act should be feloniously done, but, the use of the word I® only surplusage and does not impair the indictment. It is sufficient to charge, that the taking and detention was unlawfully done.</p> <p>2. Rape — Criminal Law — Detaining Woman Against Her Will.-— There can be but one crime embraced in an indictment for a violation of section 1158, Ky. Stats., and where upon a trial for suck' crime, evidence is introduced tending to prove more than one offense by the defendant upon the same woman, the court sbouldy require the Commonwealth’s attorney, to elect which offense her will rely upon for conviction, and should so instruct the jury, as to confine it to a decision of the guilt or innocence of the defendant of the offense upon which the state relies for conviction, amffi. should admoiiisli the jury, that it could consider the proof as to the ‘other offenses, only, as corroborative of the guilt of the offense, which is being tried.</p> <p>S'.' Rape — Detaining Woman Against Her Will. — It is competent for a • defendant in an indíctmént for a violation of section 1158, Ky. Stats., where his defense, is that the woman consented, to make proof of specific acts of lewd and lascivious behavior by the woman, with other men, shortly before the commission of the alleged crime for which he is being tried, as evidence to be considered by the jury upon whether the acts of the defendant were against the will of the’ woman or with her consent.</p>

<p>1. Taxation — Inheritance Tax. — Whether certain personal property of a nonresident decedent situated in the State of Kentucky, devised to collateral kindred by his will, is liable to an inheritance tax under its laws, is the question involved in this case; the statute imposing the tax having been enacted in 1906, and amended in 1914, and the death of the decedent having occurred in 1912.</p> <p>2. Taxation — Inheritance Tax — Statutory Provisions. — As the act of 1906 imposed a tax on the succession to property such as was devised by the will of the testator, without providing adequate-means or procedure for enforcing its collection, and the amendment of 1914 remedied the defect by giving jurisdiction to the county court of the county in which the property is situated to-determine the amount of such tax and enforce its collection, the provisions of the latter act are applicable to the property upon which it is sought to collect the tax in this case; and as the property is yet undistributed, the jurisdiction of the county court was properly invoked to compel its payment.</p> <p>3. Taxation — Inheritance Tax — Statutory Provisions. — It -is at the-death of the decedent that the title to property passes to the heirs, devisees or legatees and that the right of the state to the inheritance tax accrues, although actual enjoyment is postponed by the delays incident to the administration of the estate. The occasion for the tax being the devolution of property, it should usually attach to such interests only as arise by reason of a death subsequent to the passage of the act imposing the tax. The statute is not given a retrospective operation, so as to reach estates of persons who have died before its enactment, unless its terms-clearly demand such an interpretation. But the method of procedure for the ascertainment and collection of the tax is con-trolled by the statute in force at the time of the institution of the proceeding, although the tax itself and the rights of the parties-are .controlled by an earlier statute.</p>

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

<p>1. Husband and Wife — Estoppel.—A married woman cannot estop herself by her acts and declarations from asserting dower and other claims to land, except where to permit her to assert her claims will operate as a fraud.</p> <p>2. Husband and Wife — Estoppel.—A husband conveyed a tract of land owned jointly by himself and wife, but the wife’s signature to the deed was forged. Possession of the property was surrendered to the grantee. The husband and wife moved and remained away for two or three years. She then returned and took up her residence near the land, but took no steps to recover the property. Some time later, the grantee conveyed to defendant, who relied on the record and paid for the land without any knowledge or notice that the deed was a forgery as to the wife. After the death of the grantee, the wife brought suit to cancel the deed as to her and to recover the land: Held, that her negligence in not ascertaining that the deed was forged and her delay in not taking steps to recover the property did not amount to fraud, so as to estop her from asserting title to the property.</p> <p>3. Cancellation of Instruments — Deeds—Proof Under Prayer for Possession of Land. — In a suit to partition her father’s estate, plaintiff was allotted a certain lot, while her husband purchased a lot allotted to her sister. The commissioner executed a deed, conveying the two lots to plaintiff and her husband jointly. Subsequently, the property was conveyed to another by deed executed by the husband and purporting to have been executed by plaintiff, but her signature thereto was forged. In an action to cancel the deed and recover the lot allotted to her in the division of her father’s estate, plaintiff, whose title was denied, offered the deed as evidence of title: Held, that having accepted and held under the deed, without any effort to_ have it corrected, and having offered the deed in proof of her title, she was bound by its provisions and could not recover any greater interest in the property than that conveyed by the deed.</p>

<p>1. Wills — Review—Evidence.—A verdict in a will contest, like that in any other case, will not be disturbed i£ there is any evidence-to sustain it.</p> <p>2. Wills — Undue Influence. — Undue influence cannot be presumed. Proof tending to establish its existence must be adduced. The fact that devisees or others had access to the testator or there was an opportunity to influence him is insufficient, where there is a want of evidence or facts tending to establish the want of free agency on the part of testator.</p> <p>3. Wills — Contest—Evidence.—In a will contest all the contestants or contestees must fall or stand together. The evidence of one cannot be separated from that of the others; and the contestant having testified in the case, her husband was not a competent witness for her, nor for any of the other parties joined as contestants; that others were interested, in whose behalf he would have been a competent witness, does not affect the case.</p>

<p>1. Wills — Undue Influence. — Undue influence is any influence obtained over the mind of tbe testatrix to sucb an extent as to destroy her free agency, and to constrain her to do against her will'what she would otherwise refuse to do, whether exerted one time or another, directly or indirectly, if it so operated upon her mind at the time of the making or execution of the will.</p> <p>2. Wills — Undue Influence. — Mere general or reasonable influence over the testatrix is not sufficient to invalidate a will; to have this effect the influence must be undue, that is not right or not proper. Acts of kindness, attention, advice, suggestions or appeals to the feelings, or understanding, not destroying the free agency must not be mistaken for undue influence.</p> <p>3. Wills — Mental Capacity. — The test of mental capacity sufficient to make a will is that the testatrix have sufficient mental capacity to take a survey of her property, to know.its value, to know the objects of her bounty and her duty to them, and to dispose of her property according to a fixed purpose of her own.</p> <p>4. Wills — Mental Capacity. — The fact that a testatrix at times addressed her son Arthur as Wilbur, the name of a deceased son,- - is not evidence of mental incapacity, the names being phonetically the same.</p> <p>5. Wills — Mental Capacity. — The fact that testatrix, who was generally known as “Bettie Bailey” signed her name as “Bettie Elizabeth Bailey” is no evidence of mental incapacity, but rather an exei’cise of .caution and care to have her name correctly appear in her will. Many of our proper names are the result of contraction of the original. Bettie-is the diminutive of Elizabeth.</p> <p>6. Wills — Mental Capacity. — Under the laws of this State citizens of the requisite mental ability are privileged to dispose of property by will, according to their desires, and the opinion of a jury as to what might be a proper and just division will not be sub- ■ stituted for the will of the testatrix.</p>

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

<p>1. Wills — Construction—Intention of Testator. — The cardinal rule in> the interpretation of wills is to consider all the provisions of the-will and to ascertain from.the language employed the intention! of the testator and to construe it so as to carry out that intention,, provided it does not contravene any rule of public policy or is not contrary to any positive rule of law; and where there are codicils; they are to be taken into consideration within this rule as forming parts of the will.</p> <p>2. Wills — Construction—Intention of Testator. — Another rule of presumption is that the testator did not intend to die intestate as to any of his property, and if the will is susceptible of two constructions, one disposing of all of the property and the other not, the-former construction will he preferred.</p> <p>3. Wills — Construction—Exclusion.—A testator can not exclude one who would otherwise inherit by only declaring in Ms-will that such one should not have any part of his property, since to effectuate that purpose the property must he disposed of, but such attempted exclusion may be considered in determining whether the testator intended to dispose of all of his property.</p> <p>4. Wills — Limitation—Upon Absolute Estate. — While it is not competent for a testator to limit an absolute estate by attempting to dispose of what may remain of the devise after the death of thedevisee, still it is competent for him to limit, in the same clause or in a subsequent one, what would otherwise be an absolute estate by disposing of the entire property, in the limiting clause, after the death of the devisee, since such limitation is not inconsistent with or repugnant to the estate attempted to be limited.</p> <p>5. Wills — Construction.—A testatrix devised her farm to her six: brothers and sisters and directed her executor to sell it for the-purpose of division,' but to prefer some member of her family- im> making the sale, and gave the right to her executor to occupy ft. :Tor five years and in a codicil extended the right of occupancy throughout the life of her executor (who was her brother), if he. so desired, with further directions for him to “leave it so some of nay family can own it.” Held, that the word- “leave” in the quoted •clause was not used in a testamentary sense, but in the sense of •departing or going away from, and that by the use of the clause the testatrix intended that her brother, the executor, when he •ceased to occupy the farm, either voluntarily or by his death, would leave it intact as a part of the estate of the deceased so it would •toe in condition to be purchased by some member of her family .as she had provided in the original will.</p>

<p>1. Attachment — Wrongful Attachment — Action for. — A party whose property is wrongfully. attached may sue those who caused the attachment to be levied thereon'under section .7, Kentucky Statutes, instead of suing upon the attachment bond, for damages resulting therefrom.</p> <p>:2. Attachment — Wrongful Attachment. — In such an action the question of whether the attachment was wrongful is concluded by the judgment in the attachment suit.</p> <p>.'3. Attachment — Live Stock — Feeding and Care of. — The owner of productive, usable live stock wrongfully attached cannot recover the cost of feeding and earing for same while under attachment when he was not deprived of its use and possession.</p> <p>-4. Attachment — Wrongful Attachment — Depreciation of Property.— Neither can he under such circumstances recover for depreciation and deterioration in value, due to natural causes and not proximately resulting from the attachment.</p> <p>'5. Attachment — Wrongful Attachment — Compensation.—In such actions the owner is entitled to recover his actual damages, by which is meant compensation for those injuries and losses which are the direct and proximate result of the wrongful suing out of the writ and the seizure and detention of his property thereunder.</p> <p>6. Attachment — Wrongful Attachment. — Loss of Productive Value of Property. — Loss of a sale at the market value of property having a productive, usable value is not a loss proximately resulting from the wrongful attachment especially where no effort was made by the owner to consummate the sale or notice given that a sale was desirable, hence proof of an offer to buy at the market value was incompetent and properly excluded.</p>

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

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

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

<p>1. Deeds — Life Estates. — A deed which in its granting clause contains the words, “The said Wm. Ratliff for and in consideration of natural affection for the said Ann Eliza (being his daughter) hath this day bargained and sold unto the said Ann Eliza, a certain tract or parcel of land, lying and being in the county of Pike and State of Kentucky”; and the habendum clause contains these words: “To have and to hold forever free from me, my heirs and assigns unto the said Ann Eliza May, her heirs and assigns, that is to say unto Ann Eliza her lifetime, then to her children,” conveys a life estate only to the mother with remainder in fee to her children.»</p> <p>2. Deeds — Life Estates. — One who purchases land from a life tenant takes only a life estate even though the deed of the life tenant purports to convey the fee simple title.</p> <p>3. Adverse Possession — Holding of Grantee of Life Tenant — Remainders. — The holding of a grantee of a life tenant can not become adverse to the remainderman during the continuaney of the particular estate, even though he enter under a general warranty deed for the whole estate.</p> <p>4. Adverse Possession — Title.—Where plaintiff and defendant claim title under a common source, the defendant can not rely upon an outstanding superior title with which he has no privity to defeat the claim of the plaintiff; nor can he deny the title under which he holds, but is bound by all material recitations in each • link of the chain of conveyances under which he claims.</p> <p>g. Life Estates — Remaindermen.—Possession.—The possession of a life tenant is the possession of the remainderman, and the posses-ion of one cotenant inures to the benefit of all cotenants.</p> <p>6. , Life Estates — Limitation of Actions. — A life tenant in possession who acquired an interest of a joint-tenant, can not set the statute of limitations running so as to bar the remainderman until the termination of the life tenancy, no matter how long; but on the happening of this event, he may by manifesting a tenancy in severalty, under color of recorded title, set the statute in-motion, which will ripen into title at the end of the statutory period.</p> <p>7. . Joint Tenancy — Adverse Possession — Disseizin.—Ordinarily the exclusive possession of one joint tenant will not work a disseizin of his fellows until actual notice of his purpose to hold in severalty is brought home to them; but if his holding is under a general warranty deed of record for the whole estate, and is also open, adverse and exclusive, it will amount to a disseizin which time will ripen into title.</p> <p>S. Courts — Stare Decisis — Estoppel.—The rule of stare decisis does not operate to estop a court where property rights were acquired before decision, nor in a case in which the recognized rule has been varied and in which the specific property is not affected.</p>

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

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

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

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

<p>1. Wiljls — Defeasible Fee. — Where an undivided one-fourth remainder interest in the testator’s property is given a daughter in fee by one clause, but which by subsequent clauses is given to the surviving remaindermen, if she die childless, and to her surviving child or children, if any, she takes a defeasible fee.</p> <p>2. Wills — Defeasance of Title. — Where the time of the happening of 'the contingency that will work a defeasance of a devisee’s interest is fixed by the will in one clause, rules of construction cannot be resorted to to fix another time for the happening of the same contingency which works a like defeasance of her title under another clause, but in favor of different beneficiaries, as it must be ¡presumed that the testator referred to the same .time for the happening of the same event in both references thereto.</p>

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

<p>1. Elections — Majority or Plurality Vote — Corrupt Practices Act. — A candidate, who receives neither a majority, nor a plurality of the legal votes cast, at an election, can not he declared elected to the office, although his successful opponent is ineligible, or. has, by a violation of the Corrupt Practices Act, forfeited his right to the ofEice.</p> <p>2. Elections — Primary Elections — Certificate of Nomination — Injunction. — The board of election commissioners has no judicial discretion in the matter of granting a certificate, of nomination to the candidate for a nomination, at a primary election, who has received, upon the face of the returns, a majority or plurality of the legal votes cast, and may be compelled, by mandatory injunction, to do so, when the candidate shall have complied with the law with reference to filing statement of expenditures.</p> <p>3. Elections — Primary Elections — Void Nomination — Corrupt Practices Act. — A nomination at a primary election, is not void, because of violations of the Corrupt Practices Act by the candidate, ' in securing his nomination, ipso facto, but, only becomes void, when in a contest proceeding the nomination shall have been adjudged to be void.</p> <p>4. Elections — Ballots—When Cannot Be Counted. — When a name of a candidate is printed or written upon the ballot illegally, and contrary to law, and by one having no authority to do so, the votes cast for such candidate, can not be counted, in a-computation of the legal votes, but, when the name is legally printed upon the ballot, the eligible votes cast for it, must have their effect.</p> <p>5. Elections — Ballots—Legality.—Where a nomination has not been set aside or held to be void, in the manner and at the time provided by law, and the name of the nominee has been printed upon the ballot, in the regular way, the name is not illegally upon the ballot, and eligible votes cast for such nominee, must be counted, ■although the nomination might have been set aside, if contested, in the way, and time provided by law.</p> <p>6. Elections — Corrupt Practices Act — Contest.—Violations of the Corrupt Practices Act, in securing a nomination are not grounds for contesting the election of the nominee, at the final election, where Bis name has been regularly placed upon the ballot, and his nomination has not been successfully impeached, by a contest for that purpose.</p>

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

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

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

<p>1. Corporations — Declaration of Dividend — Equity.—While a court of equity may upon a proper showing by a stockholder compel thé directors of a corporation to declare a justified dividend oppressively withheld, such action is only justified upon clear and satisfactory proof of the company’s ability to pay a substantial dividend upon its capital stock, after reasonable provision has been made for its present obligations and -anticipated needs for a reasonable -time in the future.</p> <p>2. Corporations — Management—Equity.—Not only so, but there must be no room for doubt of the necessity for judicial interference with directors’ management of the corporation’s affairs.</p> <p>3. Corporations — Dividends—-Stockholders — Pleading. — A petition which does not state that the complaining stockholder has made a request of the directors that a dividend be declared nor that he has been denied access to the company’s books or information as to its financial condition, nor that he is in ignorance of its affairs and which does not state facts manifesting the company's ability to pay a dividend on its capital stock does not state a cause of action.</p> <p>4. Corporations — Value of Stock — Dividends.—The mere fact that the stock of a corporation has a book value in excess.of its par value as a result of excess earnings in years past when large dividends were declared connected with the assertion that a large sum was wrongfully charged off during -such years to depreciation of equipment, does not manifest a right to dividends in years when the earnings are insufficient to pay dividends or to permit of even a moderate amount being charged off to- depreciation of equipment, alleged to consist of a large amount of machinery, such as wagons, scrapers, traction engines, steam shovels, dump cars, cranes, derricks, etc., and a large number of horses and. mules, used in the contracting business in which the company is engaged.</p>

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

<p>1. Negligence — Actionable Negligence — Proximate Cause. — Negligence in order to be actionable must be tbe proximate cause of tbe injury, and the proximate cause of an injury is that which in a natural and continuous sequence, unbroken by any independent cause, produces the injury and without which it would not have occurred; but -proximity as to time and place is unimportant except as evidence showing proximity of causation, and unless the injury results directly and not remotely from the negligent act complained of the one guilty of it must have in the exercise of ordinary prudence reasonably foreseen or anticipated - that the: result would have been .the natural and probable consequence of his act.</p> <p>2. Landlord and Tenant — Damage to- Tenant’s Goods — Negligence-Proximate Cause. — A landlord to prevent the pipes in his three story building from freezing turned off the water at night with the knowledge and consent of tke tenant on the ground floor and the, next morning between eight and nine o’clock turned the water on, because of which the store room below occupied by plaintiff was flooded and goods therein damaged from water flowing through faucets which the tenant on the second floor had negligently left open. Held that the damage to plaintiff’s goods was not the proximate result of the act of the landlord in either turning off or turning on the water, since in doing the latter act it was not incumbent upon him to foresee or anticipate that any tenant above plaintiff would negligently leave the faucets open in the apartments under his control and occupied by him.</p>

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

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

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

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

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

<p>1. Appeal and Error — Presumption That Omitted Portions of Record; Sustain Judgment. — The presumption that arises from the omission from the records on appeal, of parts of the records of the action, that the omitted portions sustain the judgment, does not-arise when the record on appeal shows that the omitted portions were not before the trial court, and were not considered and! could not have influenced the decision of that court.</p> <p>2. Appeal and Error — Writings Intended to be Used as Evidence— Records. — Writings filed for the 'purpose of being used as evidence in the trial of an action at law do not become a part of' the record unless used, or offered to be used as evidence, or unless, they are filed with the pleadings as the foundation of the cause-of action.</p> <p>3. Appeal and Error — Reversal—Records.—A judgment will not be-reversed unless an error prejudicial to the substantial rights of appellant affirmatively appears from the record and where the-error so appears, in spite of any presumption arising from a por- ■ tion of the record being omitted, the judgment will be reversed.</p> <p>4. Appeal and Error — Res Judicata. — The general doctrine of res; judicata is that a final judgment rendered upon the merits of the-case by a court having jurisdiction of the subject matter and the-parties, is conclusive of the rights of the parties and their privies, in another suit on the points and matters in issue in the first suit..</p> <p>5. Judgment — Effect of Judgment in Former and Subsequent Suit.— There is a distinction between the effect of a judgment in a former suit between the same parties in a subsequent suit, upon the-same cause of action, and a second su'it between the same parties-upon a different cause of action from the one in the first suit. In. the first instance the judgment in the first’ suit is a complete harto the second action, not only as to everything which was used* in the first action to sustain or defeat the demand, but everything: which the parties could have properly used for that purpose; but: in the second instance the judgment is an estoppel to a relitigation of the questions which were actually litigated and determined' in the first action, and of such facts as the court necessarily determined in arriving at its decision.</p> <p>6. Trial — Rule to Determine Whether Two Suits Involve Same Cause-of Action. — The accepted rule in determining whether two suits; involve the same cause of action is whether the same evidence-will- sustain or defeat the cause of action in both the suits.</p> <p>7. Deeds — Exception.—An exception in a deed is that the grantor-retains and does not part with the title to a certain portion of the-land contained within the description of the property otherwise? conveyed by the deed.</p> <p>.3. Deeds — Exception.—The property excepted, in a deed for real estate must he described with sufficient certainty to enable one to locate it, and the maxim, “That is certain which can be made certain” applies to the property excepted.</p> <p>•3k Deeds — Exception—Identification of Property. — Where the language of an exception in a deed sufficiently identifies the property which is excepted from the operation of the deed that it can be designated and located by parol evidence when applied to the description of it in the exception, it is sufficiently certain to make the exception valid.</p> <p>30. Depositions — Admissibility in Evidence. — Depositions given in an action may, when otherwise competent, be used in a subsequent action between the same parties or their privies, if filed before the commencement of the trial.</p> <p>31. Ejectment — Judgment in Action of — When Does Not Bind Landlord. — A judgment in an action of ejectment by a claimant of land against a tenant in possession, does not bind the landlord, unless he was made a party to the suit, or unless he made himself a party by defending the action for the tenant, or in assisting or directing the defense of the action, and if the judgment does not bind the landlord it will not affect the right of the other in a subsequent litigation with the landlord.</p> <p>32. Ejectment- — When Not Bar to Subsequent Action. — A judgment in an action of ejectment denying one a right of recovery, upon the title to the land he then claims under, is not a bar to a subsequent action by the same claimant upon a title acquired by him since the judgment in the former suit.</p>

<p>1. Pleading — Bill oí Discovery — Sufficiency.—A petition wMcli states facts sufficient to constitute a bill in discovery and contains a prayer in 'accordance tberewitb, is good on general demurrer even though, the petition attempts to state by insufficient averment another cause against the defendant.</p> <p>2. Powers — How Exercised. — The well-settled rule is that a power can not be exercised except in the way and manner appointed by the instrument creating it.</p> <p>3. Powers — Mortgage Liens. — Where one conveys land to his wife for life, with remainder to his children, reserving in himself the power at any time to appoint the whole, or any part, of the lands to a different use or uses by deed or will, the execution of the mortgage by the grantor covering the land does not amount to the exercise of the power, except pro tanto, and so much of the land as is not required to satisfy the mortgage lien remains the property of the children.</p>

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

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

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

<p>Appeal and Error — Review—Finding on Conflicting Evidence.— Where the evidence is conflicting, and on a consideration of the whole case the mind is left in such doubt that the Court of Appeals cannot say with reasonable certainty that the chancellor erred in his conclusion, his finding will not be disturbed.</p>

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

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

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

<p>1. Life Estates — Adverse Possession — Remaindermen.—The possession of a life estate is not adverse to the remaindermen.</p> <p>2." Husband and Wife — Antenuptial Contract — Property Included— Finding of Chancellor — Evidence.—In an action by a widow to enforce an antenuptial contract, providing that in the event of issue she should be endowed with one-third of the home place of her husband, evidence examined and held to sustain the chan- ■ cellor’s finding that a tract of land adjoining the home place was not a part thereof but belonged to his first wife, and upon her death descended to her children.</p> <p>3. Husband and Wife — Antenuptial Contract — Fraud—Evidence.— Evidence held to sustain the finding of the chancellor that an antenuptial contract, whereby a wife was endowed with one-third of the home place owned by her husband, and was given a child’s part in the remainder of his property in the event she had issue, but if she had no issue, she was given a child’s part in all of his property, was not obtained by fraud.</p> <p>4. Husband and Wife — Antenuptial Contract — Construction.—An antenuptial contract providing that in the event of issue the wife “shall be endowed with one-third of the home place of the father and husband, and that all of the other property belonging to the husband at the time of his death shall be sold and the wife, instead of dower in said property, shall take a child’s- part,” construed and held that the word “endowed” was used in its technical sense, and that the wife took only an estate for life in one-third of the home farm.</p> <p>5. Descent and Distribution — Advancements.—Where the father has a large -amount of property, small gifts of money made to his ■children, without any view to a settlement in life, should not be charged as advancements.</p> <p>6. Appeal and Error — Questions Not Raised Below — Practice.—It is not the practice of the Court of Appeals to pass on questions not raised or adjudicated below.</p>

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

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

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

<p>1. Bills and Notes — Bona Fide Holder. — To bring himself within the defense of a bona fide holder the latter must prove that the note was complete and regular upon its face; that he became the holder of same before it was overdue; that he took it in good faith and for value, and at the time it was negotiated he had no notice of any infirmity in the note or any defect in the title of his assignor.</p> <p>2. Bills and Notes — Popularity Contest — Deceit.—Inducing candidates in a popularity contest to become interested by false nominations and fraudulent votes is such a deceit upon the unsuspecting candidates, and so opposed to public policy, that the courts wilL not give their sanction to such practice and a recovery on a note executed pursuant to such fraudulent plan will be denied.</p>

<p>1. Damages — Removal of Trees — Directed Verdict. — Plaintiff seeking damages resulting from the removal of trees from property which he claims to own must show title or right in himself to said property, either hy ownership or possession thereof, and in the absence of this proof the court should direct a verdict for the defendant.</p> <p>2. Deeds — Description—Parol Evidence. — Where a description in a deed contains sufficient data so that hy the aid of parol evidence no question as to the intention of the parties can arise, the description will be beld sufficient. In sucb cases parol evidence is admitted not to identify but to designate tbe subject matter already identified in tbe minds of tbe parties in tbe language of tbe contract wben read in tbe light of tbe facts.</p>

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

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

<p>1. Larceny — Asportation.—Where property is stolen in one state and carried by the thief into another state it is a fresh asportation in the state to which it has- been carried and the offender may be punished in the latter state.</p> <p>2. Receiving Stolen Goods — Jurisdiction.—Receiving stolen goods is, a distinct offense irom larceny of the same goods, and the circuit court of the county where the goods are received has jurisdiction to try the offense. The receiving of the goods constitutes the crime.</p> <p>3. Receiving Stolen Goods — Trial of Offender. — Where a person charged, with receiving stolen goods consents to accompany an . officer to a sister state-, the arresting officer was not required to take the.accused before a magistrate as provided by sec. 46 of the Criminal Code.</p> <p>4. Arrest — When Arrest May Be Made Without Warrant. — Peace officers may, without a warrant, arrest any person who they believe, on reasonable grounds, has committed a felony, though it afterwards appears that no felony was actually perpetrated.</p>

<p>1. Taxation — Corporations—Exemption from License Tax. — Under section 4189a, Ky. Stats., a corporation upon which a franchise or license tax was imposed by law, at the time of the enactment of section 4189a, supra, is exempt from the payment of the license tax, imposed by that statute.</p> <p>2. Statutes — Enactment Upon Same Day. — Two statutes, which are enacted by the General Assembly upon the .same day, and which became laws upon the same day, must be construed together, and they will be presumed to have become laws, at the same time, and each to have been existing, when the other became a law.</p> <p>3. Taxation — Mistake in Payment — Rectification.—Under section 162 Ky. Stats., the Auditor may be required, by mandamus, to draw his warrant upon the treasurer for the benefit of one, who pays money into the treasury for a tax, when the tax was not, in fact, due, if the payment was made under the mistaken belief, that the tax was due, because of mistake of law, or if the payment was involuntary; provided, however, that the rectification of the mistake or involuntary payment does not involve the doing of some act, which the Auditor has not the power, and which it is not his duty to do.</p>

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

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

<p>Pleading — Variance Between Pleading and Proof. — There was a variance between the pleadings and proof, amounting to a failure of proof under section 131 of the Code of Practice, where plaintiffs sued upon a contract and alleged compliance therewith, and their proof showed not a compliance with the contract sued upon, but a compliance if any with an extension and modification thereof by some seven or eight additional contracts between the parties which were not pleaded.</p>

<p>1. Appeal and Error — Reversal and Correction of Error. — Where the opinion of this court in attempting to deal with a number of questions involving several different pieces of real estate, inadvertently overlooks the facts eontroling one lot, and directs a rescission of a contract with respect to other lots held by the same party, and the opinion fails to specify which lots are included in the contract to be rescinded, and the trial court upon a return of the case, enters a judgment decreeing a rescission of all the contracts of purchase held by one grantee even though one contract was fully executed and which this court did not intend should be rescinded, upon a second appeal the judgment will be reversed and the error corrected.</p> <p>2. Appeal and Error — Rescission of Contract — Pleading and Proofs,— Where neither the pleadings nor the proof will support a rescission of contract, a court is not authorized to enter such judgment.</p>

<p>1. Corporations — Statutory Bequirements — Doing Business — What Constitutes. — The business referred to in section 571, Kentucky Statutes, making it unlawful’ for any corporation “to carry on any business” in this state, until it shall have filed in the office of the Secretary of State a statement, signed by its president or secretary, giving the location of its office or offices in this state, and the name or names of its agent or agents thereat, upon whom process can be served, is the business for which the corporation is organized, and does not include the taking of stock subscriptions to procure the capital necessary to carry on the business, so as to render such contracts void if the statute has not been complied with, and the fact that the stock is to be paid for in merchandise does not alter the rule.</p> <p>2. Reformation of Instruments — Grounds—Mistake—Quantum of Evidence. — A written contract will not be reformed on the ground of mistake unless the mistake be established by full, clear and decisive evidence.</p> <p>3. Reformation of Instruments — Stock Subscription — Mistake—Sufficiency of Evidence. — In a suit by a corporation to recover a stock subscription, evidence, that the subscription was conditional and that the condition was omitted from the written contract of subscription by mistake, held insufficient to authorize a reformation of the contract of subscription.</p> <p>4. Corporations — Suits by — Necessity of Formal Resolution of Directors — -Abatement and Revival. — Though a corporation may cease to do business, a suit brought by direction of its president, with the acquiescence of its directors, to recover on stock subscriptions for the benefit of creditors, will not be abated on the ground that the suit was not authorized by a formal resolution of the board of directors.</p> <p>5. Corporations — Statutory Requirements — Subscriptions to Stock.— The Kentucky Constitution provides that a foreign corporation cannot transact business within the state on more favorable conditions than a domestic corporation, and section 543, Kentucky Statutes, requires that at least fifty per cent, of the capital stock of each domestic corporation shall be in -good faith subscribed before it shall be authorized “to transact any business with persons other than its stockholders:” Held, that a-stockholder cannot defeat his stock subscription on the ground that fifty per cent, of its stock has not been -subscribed in good faith, since the sale of the stock to him was a transaction with a stockholder and the statute does not apply.</p> <p>6. Corporations — Subscription to Stock — Release of Other Stockholders — Defenses.—It is no defense to an action to recover a stock subscription, that another shareholder was released from liability on his stock subscription, without the consent of the defendant, for the release being V&id, the released shareholder remains bound to make good his subscription.</p> <p>7. Corporations — Foreign Corporations — Dissolution—Effect—Pleading. — The dissolution of a foreign corporation, having its principal place of business in this state, is not ground for abating an action brought by it to recover on a stock subscription, and an amended answer asking its abatement on that ground was properly rejected.</p>

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

<p>Appeal and Error — What Not Prejudicial Error. — The court’s permission to file and refusal to strike an amended petition from the record, which set up -a separate cause of action which accrued after the commencement of the suit, as also the refusal to require the plaintiff to elect held not prejudicial if error, because defendant was served with notice issued upon the amendment and given ample opportunity to present his defense thereto, which he did, and the new cause of action asserted by .the amended petition was such that had it existed at the time, could have been joined in the original petition, and if set up by separate action would have been consolidated with the original action upon motion of either party.</p>

<p>1. Appeal and Error — Counties—Appeals from Fiscal Court — Necessity of Pleading. — Where, on appeal to the circuit court from an order of the fiscal court allowing a claim in the sum of $6,260.00, the order is not invalid on its face, a county should manifest its right to relief on appeal by a pleading showing wherein the order is invalid either in whole or in part, and to that end, facts, and not mere conclusions of law, should be alleged.</p> <p>2. Municipal Corporations — Counties—Limitation of Indebtedness— Evidence — Burden of Proof. — The burden of proving that a particular indebtedness of a county is void, because it exceeded the statutory or constitutional limit, is upon him who alleges its invalidity, and this rule is peculiarly applicable where a county is attacking its own indebtedness, and all the facts are in its possession.</p> <p>3. Actions — Municipal Corporations — Counties—Limitation of Indebtedness — Jury Trial. — Where the indebtedness of a county is attacked on the ground that it exceeded the statutory or constitutional limit, the case should not be tried by a jury since it involves a complicated set of accounts, and the questions of law and fact are so intermingled that the jury could not be properly instructed.</p>

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

<p>1. Railroads — Laying Water Mains Along Right of Way. — A railroad company may excavate and lay water mains along its right of way for the purpose of carrying water to be used in its engines, yards and shops, and this right is incident to its right to build and main-, tain a railroad along such right of way.</p> <p>2. Railroads — Laying Water Mains Under Streets. — Where a railroad passes through a city, crossing its streets, its right to excavate and lay a water main under and across the streets for the purpose of supplying water to its engines, yards and shops, an essential in its business, is inherent in the franchise and grant to so use the streets, but the city has the right to prescribe such reasonable rules and regulations governing the excavation and laying of water mains under the street crossings as may appear reasonable and necessary for the protection of the city and the traveling public.</p> <p>3. Railroads — Use of Right of Way. — A railroad company may use its right of way for any purpose necessarily incident to its business, which does not interfere with the rights of property owners or trespass upon the rights of the public.</p>

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

<p>1. Contracts — Contract to Drill Well — Abandonment.—A contract to dig a well provided that it should be dug to a depth of 1,600 feet unless accepted or abandoned by the employer at a less depth, and further provided that if the well should be abandoned either before or at completion the contractor should draw all casing and plug the well. Held that the employer would not have the right after the.well had been, drilled to a depth of 1,550 feet to require the contractor to plug it at a depth of 1,000 feet at or near which point there was a flow of water which the employer desired to appropriate.</p> <p>2. Contracts — Customs and Usages. — In order for an alleged custom to enter into and become a part of a contract and to affect the rights of the parties it must have been known to the parties and contemplated by them at the time as forming a part of the contract or of its terms; or it must have been of such long and universal use as to be presumed to have been known by them.</p> <p>3. Contracts — Contract for Drilling Wells — Construction.—The ordinary meaning of the word “ream” as used in contracts for drilling wells is the process of enlarging a smaller hole and does not include the continuation of the larger hole after reaching the bottom of the smaller one, and the evidence in this case is insufficient to show a contrary or an alleged customary meaning so as to apply to the entire depth of the larger hole.</p>

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

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