Volume 185 — Kentucky Reports

<p>1. Municipal Corporations — Use of Street by Pedestrian — Automobiles. — A pedestrian has the same right to be upon and use a public street between crossings that an automobilist or other vehicle driver enjoys, their rights being equal.</p> <p>2. Municipal Corporations — Automobiles—Duty of Driver to Keep Lookout for Pedestrians. — It is the duty of one driving an automobile in a public street to keep a lookout for pedestrians, keep the car under control, and if necessary for the safety of pedestrians bring the car to a stop. On approaching a pedestrian in such street, it is the duty of the automobilist to sound a warning signal by horn, bell or other contrivance, but if the pedestrian sees and knows of the approach of the car, such warning signal is not required.</p> <p>3. Municipal Corporations — Injury to Pedestrian by Automobile.— It is the duty of one crossing a street in a busy center to exercise ordinary care, the surrounding conditions considered, for his own safety and to avoid coming in collision with an auto-m- die or other vehicle, and if while crossing such street and wx e the pedestrian is in a safe place, he obsex’ves a ear appr ching along a path which does not endanger him and he v ntarily leaves such safe place and in attempting to pass in fi it of the car, is struck and injured, no recovery can be had, eve° though the automobilist fail to give the warning signal requ 3d by subsection 15 of section 2739 Kentucky Statutes.</p> <p>4. Municipal Corporations — Oar© Required of Pedestrian — Instructions. — An instruction requiring a pedestrian upon tbe public street to use increased care commensurate with, the extra hazardous surroundings, is error. He is required.to exercise such care as a reasonably prudent person would employ for his own safety in the street under facts and circumstances similar to those sur-' rounding him, and the court should so instruct the jury.</p> <p>5. Appeal and Error — Instructions—Although the trial court submit the case to the jury by instructions, one or more of which are erroneous but not prejudicial to the rights of appellant, the judgment will be affirmed.</p>

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

<p>Deeds — Estate Conveyed — Covenants—Warranty—Purchases With Notice. — In the division of their father’s estate in the year 1864, M. J. P. was allotted lot No: 6, M. B., lot No. 7, and W. H., lot No. 5, in addition to other property. M. J. P. and M. B. made an ■oral trade with their brother, W. H., by which they exchanged other lands to him for lot No. 5. At the same time they made an oral agreement by which M. J. P. was to1 have lot No: 5, and M. B. was to have a portion of lot No. 6. In the year 1865. M. J. P. and her husband sold and conveyed, by deed containing a covenant of warranty, all the minerals except coal in lot No. 6, “also' that other portion of the said H. B. Hulett estate which the parties of the first part have acquired from William Hulett and other heirs of said H. B. Hulett, deceased, by purchase or exchange, making in the aggregate-acres.” In the'year 1876, W. H. conveyed lot No. 5 to M. J. P. and her husband, and shortly thereafter M. J. P. and her husband conveyed to M. B. a portion of lot No. 6. After the execution of the deed'from W. H. to M. J. P. and her husband, they conveyed the lands to appellants without reserving the mineral. Held, that as the weight of the evidence showed that, at the time of the execution of the mineral deed, M. J. P. and her husband had acquired by oral exchange all of lot No. 5, all of the minerals except coal passed by the mineral deed, and since the deed contained a covenant of general warranty, the subsequent deed from W. H., vesting the grantors with the legal title to all of lot No. 5, inured to the benefit of the grantees in the mineral deed and perfected their title before the subsequent conveyances to appellants or their predecessors in title, who purchased from M. J. P.' and husband with constructive knowledge of the fact that the minerals had theretofore been conveyed.</p>

<p>Bills and Notes — Holder of Negotiable Instrument — Defenses.— The holder of a negotiable instrument may maintain a suit thereon, in his own name, and hence, a denial of his ownership of the note does not present a defense to his action, but, if he does not have the equitable title to the note, the party sued upon the note, may interpose any defense, which he might make, as against the beneficial owner.</p>

<p>1. Railroads — Injuries to Trespasser. — A railroad company subjects itself to liability if after it has undertaken tbe care of an injured trespasser tbe injuries are aggravated or tbe injured person’s condition is made worse through its negligence.</p> <p>2. Railroads — Voluntary Assumption of Burden. — Tbe voluntary assumption of an unrequired burden under certain conditions or circumstances may impose tbe same obligations as the assumption of a required duty.</p> <p>3. Railroads — Assuming Charge of Injured Trespasser. — After assuming charge and care of an injured trespasser tbe company must do so in a proper manner and -without negligence, but it is not required to continue its care of tbe injured person until be recovers or is removed by death.</p> <p>4. Railroads — Care of Injured Trespasser — If a railroad company with due care and diligence, after taking charge of an injured trespasser, places him in the care” of a competent surgeon or physician or takes him to a hospital or infirmary, or sends him to his family or near relatives, it is not required to do more.</p>

<p>1. Army and Navy — Offenses by Persons in Military Service — Jurisdiction of Military Tribunals — Waiver—Jurisdiction of Civil Courts. — Articles of war, enacted August 29, 1916 (Comp. St. 1916, sec. 2308a), do not confer on military tribunals exclusive jurisdiction over crimes against the state law, committed within the United States by persons subject to military law, but the jurisdiction of such tribunals, being concurrent with that of the state courts, may be waived in favor of the latter.</p> <p>2. Criminal Law — Witnesses—Impeachment — Evidence — Warrant Charging Another Offense — Admissibility.—In a criminal prosecution for robbery, evidence, by the chief of police, that his depal’tment had a warrant charging the defendant with another offense, was not admissible for the purpose of impeachment or for any other purpose.</p> <p>3. Criminal Law — Trial—Misconduct of Counsel — Reversible Error. —In a criminal prosecution, where .the attorney for the Commonwealth persisted in asking improper and prejudicial questions, which the court had ruled to be wrong, for the purpose of getting before the jury evidence which the law did not permit them to hear, a judgment of conviction will be reversed, the refusal of the court to permit the witness to answer not being sufficient to remove the prejudicial effect which the questions had on the minds of the jury.</p>

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

<p>1. Waters and Water Courses — Diversion Caused by Railroad Construction — In an action to recover damages caused by the construction of railroad tracks and the diversion of the current of a river unless, plaintiffs show that the wasting away or damage to their property was greater after the work was done by the railroad company than before, defendant is entitled to a directed verdict.</p> <p>2. Waters and Water Courses — Diversion of Current. — Mere diversion of the current would not authorize- a recovery unless the construction increased the damage to plaintiffs’ property.</p> <p>3. Trial — Instructions—Where the evidence is equally consistent with the existence or non-existence of negligence it is not competent for the judge to leave the matter to the jury.</p>

<p>1. Obstructing Justice — Defective Indictment. — Where during the trial of oue charged with feloñy and after the submission of the ease to the jury, oue of the jurors engages in conversation with the sheriff of the county, an indictment charging said juror and-sheriff with the crime of obstructing justice is defective where it fails to charge that the conversation or communication between said juror and the sheriff pertained to.a matter or subject connected with the trial, and where it is not charged that said communication was out of the hearing or presence of the officer in charge of the jury.</p> <p>2. Obstructing Justice — Interference With Deliberation of Jury.— A sheriff who obligates himself to faithfully discharge and execute the duties of his office shohld not interfere with or disturb a jury or jurors having under consideration the trial of any cause.</p> <p>3. Obstructing Justice — Conversation With. Juror by Sheriff. — The conduct of a sheriff in talking to a juror in a criminal proceeding is very reprehensible, however innocent said officer may have been of any intentional wrongdoing. He should avoid all appearance of evil or wrongdoing and should not disturb or interfere with the jury or jurors while they are considering a pending case.</p> <p>4. Obstructing Justice — What Offense Consists of. — Obstructing justice means impeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein.</p>

<p>1. Prohibition — Jurisdiction.—The circuit court under the provisions of section 479 Civil Code and 25 of the Criminal Code has jurisdiction to issue writs of prohibition only when the inferior court is proceeding or about to proceed without jurisdiction.</p> <p>2. Prohibition — Pleading—Failure to State Cause of Action. — Plaintiff in a petition filed in the circuit court sought to prohibit the county judge from trying plaintiff under twenty-six warrants which the judge had issued charging plaintiff with the offense of selling oil without having the same inspected, contrary to the provisions of section 2202 of the Kentucky Statutes, upon the ground that the sales, which were admitted, were not made within the county. Held that the plaintiff failed to state a cause of action, since the county judge had jurisdiction of both the person of defendant and of the -subject matter, and if the sales were not made in the county it was a fact which could be proven before the county judge under a plea of not guilty.</p>

<p>1. Wills — Execution.—Under Kentucky Statutes, section 4828, a will may be signed by tbe testator or by someone else in his presence and by his direction.</p> <p>2. Wills — Contest—Execution—Question for Court. — Where the draftsman of a will and the attesting witnesses testify that the testator requested the draftsman to sign the will for him, and the witnesses were not contradicted or impeached, the court did not err in assuming that the will was duly executed by the testator.</p> <p>3. Wills — Contest—Mental Incapacity — Undue Influence — Questions for Jury. — Where in a will contest the evidence of mental incapacity and undue influence was conflicting, the questions were for the jury and not for the court.</p> <p>4. Wills — Construction.—Testator made the following will: “I wish to appoint Mrs. Belle Wise, my half sister, as my executrix without bond. I wish to leave her the entire control and division of my estate. I direct her to make the following bequests: To the children of Mrs. Ruth English (deceased), each ($1,000) one thousand dollars. To William Geohegan ($500) five hundred dollars.” Held, that the testator’s half sister took the fee to all of his property except that specifically bequeathed to the children of Mrs. Ruth English and to William Geohegan, and that the bequests to the latter took effect and were payable immediately upon the testator’s death.</p>

<p>1. Appeal and Error — Accounting.—This court is a court of errors and not of original jurisdiction, and will not attempt an original accounting of numerous and complicated accounts.</p> <p>2. Escheat — Sale of Lands by Directors of Corporation. — The question of whether or not lands conveyed were at the time liable to escheat could only furnish a reason for a bona fide sale by the directors of the corporation owner, and the necessity for a sale being conceded, the question of escheat is not pertinent upon an inquiry as to whether the deed was in fact a Ibona fide sale.</p> <p>3. Deeds — Deed Not Bona Fide Sale. — Where such deed, by its terms purported to convey to an insolvent employe of the corporation, real estate worth $1,800,000.00, for the sole consideration of the employe’s note for that amount, due in twenty years, without provision for enforcement of either principal or interest within the twenty years, even upon default in the payments of interest, semiannually provided, for therein, and he was by secret agreement relieved of all personal liability on the note, and authorized to pay himself a salary out of the income from the property ■conveyed, and was also prevented from selling the property, except 'by consent of grantor or its assignee, held that the deed ■absolute on its face was not a bona fide sale, nor understood! or intended by the parties as such.</p> <p>4. Corporations — Mismanagement—Equitable Relief. — Where for a period of years the directors of a corporation have uniformly and persistently managed and operated its affairs in disregard of its welfare and in the interest of another corporation having no interest therein except as creditor, of which they are also directors, a court of equity applied to by a minority stockholder will relieve the corporation of such mismanagement by removing the directors, and where adequate relief could not be obtained by the election of new directors by the stockholders because of the ownership of a majority of the stock in both corporations by a third corporation, and there is no reason for the continued existence of the corporation, except to sell its property and pay its debts, will take charge of and wind up its affairs.</p>

<p>1. Pleading — Amendments—Variance.—No recovery can be had where the pleadings relied upon an express contract and only an implied one is proven, unless there should be an amendment conforming the allegations to the proof, since the proven contract constitutes a fatal variance from the one relied on in the pleadings.</p> <p>2. Principal and Agent — Sale of Real Property — (Commissions.— When a real estate agent is employed to effect a particular sale to a particular individual he cannot claim commissions either under an express or implied contract upon a sale made to another by the owner after the agent’s failure to make the sale for which he was employed, and to which he did not contribute, except to call the attention of the purchaser, who was his brother, to the land and its price.</p>

<p>1. Death — Presumptions.—Where a resident of this state, 38 years of age, unmarried and insane, escaped from an asylum in the state to which he had been committed, and has not been seen or heard from or of by any of his relatives or former acquaintances at his last known place of residence for more than twelve years, his death must be presumed in this case wherein his death has come in question, under section 1639 of Kentucky Statutes.</p> <p>2. Death — Presumptions.—While a decedent is presumed to have left heirs, there is no presumption that a man who was unmarried and insane when last heard of, thereafter married and within 'seven years, after which under our statute he is presumed to be dead, had children who survived him.</p> <p>3. Insane Persons — Presumptions—Death.—One who had been declared upon an inquisition to be a lunatic and was such when last seen, is presumed to have been insane in the absence of proof to the contrary, until his death within seven years there-_ after.</p> <p>4. Death — Presumptions.—Proof that a man 38 years of age, unmarried and insane, escaped from an asylum more than twelve years before the death of his father, and has not been seen or heard of since by any of his relatives or former acquaintances ¡at his last known place of residence, held to sustain the chancellor’s findings of fact that he died childless before his father.</p> <p>5. Contracts — Death of Coparcener — Contract for Sale of Land. — ■ Where by contract it was agreed by the purchaser that he would pay to the sellers a balance of the purchase price for land which would have belonged to a coparcener of the grantors, if alive, but which otherwise belonged to them, upon their doing certain specified things to establish the death of' the coparcener without issue, he must pay1 the amount to them upon their compliance with the contract.</p> <p>6. Contracts — Contract for Sale of Coparcener’s Land. — Where under such a contract the sum retained by the purchaser was not due until the sellers did certain things and no interest was provided for, the sellers were not entitled to a judgment for the recovery of the retained sum or interest thereon until they had fully complied with their contract.</p>

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

<p>Appeal and Error — Finding of! .Chancellor. — This court, upon issues of fact in equity cases, will adopt the finding of the trial court if the evidence creates only a doubt as to the truth of the matter, and will not reverse such finding unless the evidence preponderates against it.</p>

<p>Partnership — -Accounting—Report of Master. — Upon an accounting •between parties the report of the master, examined and found to be correct, will be sustained.</p>

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

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

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

<p>1. Appeal and Error — Dismissal.—An appeal granted by the lower court will be dismissed upon motion in this court if it be not filed, as provided by section 738, Civil Code, twenty days before the beginning of the second term of this court; but if no motion to dismiss is made until after the submission of the case, the right is waived.</p> <p>2. Appeal and Error — Transcript—Uncertified Record. — Where there is a partial transcript and it does not support the judgment, the uncertified portion of the record will generally be presumed to support the judgment.</p> <p>3. Executors and Administrators — Compensation for Services Rendered Decedent. — Where relatives live together in' the same family, the presumption will be that they do so live by mutual consent for the convenience of each other, and that each receives some benefit from the arrangement, and that one is not to compensate the other for services rendered unless the claim for such compensation be supported by clear and convincing proof of an express contract.</p> <p>A. Wills — Devises—Title.—A will devising a house and lot to a named devisee which has been duly and regularly probated and from which no appeal has been prosecuted, vests perfect title in the devisee.</p> <p>5. Liens — Pleading.—Where the pleadings do not contain- averments sufficient to support a lien upon real property, or specific performance, or a prayer for such relief, the court is without jurisdiction to decree a lien or a reconveyance.</p>

<p>1. Criminal Law — Accomplice.—The mere fact that one is jointly indicted with another does not render him an accomplice or bring him within the rule covered by section 241 Criminal Code. But' if the witness, whether jointly indicted or not, appears from the evidence to have participated in the crime charged, section 241 of the Criminal Code does apply.</p> <p>2. Criminal Law — Evidence—Discretion.—The trial court has a broad discretion in the admission of testimony in chief by rebuttal witnesses.</p> <p>S. Criminal Law — Self-Defense—Instructions.—'Where the defendant does not claim self-defense, and the evidence of the Commonwealth tends to show the defendant the principal in the crime and the witness an innocent bystander only, while the evidence for the defendant tends to prove the witness the principal perpetrator and the defendant in no wise connected with the commission of the felony, there being no evidence whatever of a struggle or an effort to fight on the part of the deceased at the time or just (before he was killed, the court properly declined to give an instruction upon self-defense.</p>

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

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

<p>Appeal from Ballard CireuitCourt.</p>

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

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

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

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

<p>1. Criminal Law — Appeal—Interfering With Verdict. — The verdict of a jury in a criminal case will not be reversed on appeal unless its finding is flagrantly against the evidence.</p> <p>2. Criminal Law — Appeal-—Homicide—Insufficiency of Evidence.— On a prosecution for homicide, evidence examined -and held to sustain a verdict of manslaughter.</p> <p>3. -Criminal .Law — Appeal—Reservation of Error — Examination of Witness. — Misconduct of the prosecuting attorney in asking the witness an improper question will not be reviewed where there was no objection to the question.</p> <p>4. -Criminal Law — Appeal—Questions Reviewable — Bill of Exceptions —Argument of Counsel. — Improper argument of prosecuting attorney which was not set forth in the hill of exceptions cannot he reviewed on appeal.</p> <p>5. Criminal Law — Appeal—New Trial — Instructions.—Error in failing to give an instruction is not available on appeal where it was not relied on in the motion and grounds for a new trial.</p>

<p>1. Municipal Corporations — Liability Upon Implied Contract. — While a municipality can not ordinarily be held liable upon an implied contract, where the. facts show that it has obtained money from the plaintiff wrongfully, or under the mistaken belief on the part of’ its officers and the plaintiff that the municipality had the right to receive the money, and for which it gave no consideration, the payor of the money would have the right to collect it from the municipality in a suit brought for that purpose.</p> <p>2. Municipal Corporations — Contract to Sell Bonds — 'Defenses—Where a municipality contracted to sell to ■£ purchaser its bonds, and received pay therefor, when it was without authority to. issue the bonds, and they were actually void, the city, in a suit by the purchaser, can not rely, as a defense, upon the fact that the bonds were illegal and issued without authority.</p> <p>3. Municipal Corporations — Action to Refund Money. — To make the municipality refund the money paid in such case does not violate the rule usually invoked for the protection of the taxpayer in suits against the municipality based on implied contracts, since the refund is no part of taxes collected but only what the purchaser paid.</p> <p>4. Appeal and Error — Cross Appeal — 'When Allowed. — Under the Civil Code of Practice, section 755, a cross appeal will only be allowed to an appellee against an appellant, and is not permissible ■against .a co-appellee; the only remedy for an appellee dissatisfied as to a judgment against him by a co-appellee being by original appeal.</p>

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

<p>1. Removal of Causes — Right of Removal. — When a petition for removal is filed in a state court accompanied by the proper bond and notice, if the record shows upon its face that a case is made which is removable, it is the state court’s duty to order the removal.</p> <p>2. Removal of Causes — Diverse Citizenship. — If the ground on which removal is sought is that of diverse citizenship, the state court ■must take as true the allegations of the petition for removal and not those of plaintiff’s petition.</p>

<p>1. ICarriers — Shipment of Live ’Stock — Condition of Stock. — Where no one accompanies a live stock shipment and injury results in transit the shipper makes out a prima facie case when he shows the stock was in good condition when delivered to the 'Carrier, and in a damaged condition when it reached its destination, and the carrier must explain the cause of the injury, and it can only exempt itself from liability by showing that the damage was brought about by the act of God, or the public enemy, or because of the in'herént nature, propensities or viciousness of the animals, or to the act or fault of the shipper.</p> <p>2. Trial — Question for Jury. — Where facts are sought to be established by indirect evidence it is the province of the jury to draw inferences from the proven facts, and where more than one inference may reasonably be drawn, or where a certain inference may be drawn or declined to be drawn, the matter is for the jury.</p> <p>3. Aippeal and Error — Amount of Recovery. — A verdict of $1,200 for damage to a shipment of live stock held, under the evidence, not to be excessive.</p>

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

<p>Appeal from Jefferson Circuit Court (Comm'on Pleas Branch, No. 3.)</p>

<p>Insurance — Life—Defenses by Company — Demurrer to. — Where a life insurance company in its answer set up as a defense to a suit on the policy that the applicant made in his application false and material representations on the faith of which the policy was issued it was error to sustain a demurrer to the answer.</p>

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

<p>1. Officers — Abolition of. — Offices created by the legislature may be abolished by the same body by saying so in a later act, without an express repeal of the statute creating the abolished office.</p> <p>2. Officers — Abolition of — 'Constitutionality of Act. — The State Insurance Board having been abolished by the act of 1918, neither said board, nor its members, can maintain a suit to test the constitutionality of said act.</p> <p>3. Statutes — Where Part of Unconstitutional. — Where a part of a statute is unconstitutional and this portion is stricken out, if that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent ot that which was rejected, it will be sustained.</p> <p>4. Statutes — Construction—Legislative Intent. — It is the duty of the court to construe statutes in accordance with the legislative intent, since it is always to be presumed the legislature designed the statute to take effect and not be a nullity.</p> <p>5. Statutes — Enforcement—Restrictions Upon. — Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facia valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the Constitution and the case shown to come within them.</p> <p>6. Officers — Abolition by Implication. — An office is abolished by implication where a statute transfers all of its functions to another officer.</p> <p>7. Officers — Appointment—Removal.—"Where the power of appointment is conferred in general terms and without restriction, the power of removal in the discretion and at the will of the appointing power is implied, and always exists unless restrained and limited by some provision of law.</p>

<p>1. Exceptions, Bill of — Time for Filing. — Section 334, Civil Code, requiring the court to limit the time for filing a bill of exceptions to a day in the succeeding term, is mandatory, and where the statute does noit provide that the succeeding term shall be deVotedi exclusively to criminal business, the unsuccessful party is not excused from complying with an order limiting the time for filing the bill to a day in that term by the fact that that term was set apart for the trial of criminal cases by order of oourt.</p> <p>2. Exceptions, Bill of — Signing and Approval. — It was proper for the court not ito approve and sign a bill of exceptions not filed within the time fixed by the order of court.</p> <p>3. Appeal land Error — Exceptions, Bill of — Failure; to Sign — A bill of exceptions not signed by a judge is no bill at all and cannot be considered.</p> <p>4. Appeal and Error — Exceptions, Bill of — Failure to Sign — Motion to Strike — Waiver.—Since an unsigned bill of exceptions is no bill ait all, no 'motion to strike the alleged bill is necessary, and the right to raise the question is not waived by a failure to miake such motion until after the ease has been submitted, but the question may be raised at any time by «ailing the attention of the Court of Appeals to the fact that the alleged bill is not signed.</p> <p>S. Appeal and Error — Review—Want of Bill of Exceptions. — In the absence of a hill of exceptions, the only question to he considered is whether the pleadings support the judgment.</p>

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

<p>1. Elections — PrimJary Elections — Qualifications of Voters. — A primary election is not an election -within the meaning of the term, as used, in the 'Constitution,'and it is within the province of the legislature to prescribe the qualifications of the voters and the manner of Voting at such election.</p> <p>2. Elections — Primary Elections — Violation of Statute. — A vote at a primary election, in the manner of the casting of which all the essential requirements of the statute regulating the mode of voting at such an election are violated can not be- received.</p> <p>3. Elections — Illegal Voter Competent to Prove for "Whom he Voted. —An illegal voter is a competent witness to prove for whom he voted, and can not refuse to so testify, unless the statements made by him upon that subject would tend to prove bim to be guilty of a .public offense, for which he might be prosecuted and punished.</p>

<p>1. Appeal and Error — Sufficiency of Evidence. — Evidence examined and beld sufficient to sustain the verdict.</p> <p>2. Appeal and Error — Question for Jury. — Where there is a question of fact upon which the evidence is conflicting, it is for the jury, and its verdict will not be disturbed by this court unless it be flagrantly and palpably against the evidence.</p> <p>3. Railroads — Injury to Passenger-Rule as to Recovery. — The rule denying the right of passengers on trains and street cars to recover for injury occasioned by a fall from a car, except in cases “where the jerk is sudden, unusual, unnecessary and violent,” has no Application where the street car is brought to a stop for the purpose of allowing a.passenger to alight and the passenger in the due exercise of care for his own safety is, proceeding down the steps in an effort to leave tlie car when he is thrown and injured by a sudden jerk of the car.</p>

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

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

<p>Appeal and Error — Second Appeal. — Wien there is a second appeal in the one case, the first thing to he determined by the Court of Appeals on such appeal is, whether the judgment rendered by the circuit court following the reversal of the judgment on the first appeal, substantially conforms to the law as announced by the opinion of the appellate court on the first appeal. And where, as in this case, such conformity is shown, to exist, and that no questions of law or fact were or properly could have been raised in the case in the circuit court, after the reversal of the judgment on the first appeial, that were not involved, in the first appeal, the judgment of the circuit court from which the second appeal is prosecuted will on such appeal, be affirmed by the Court of Appeals.</p>

<p>1. Infants — Judgment—Opening and Vacating in General. — Under Civil Code, sections 391-518, subsection 8, a judgment rendered ¡against an infant, may be vacated- on his application before, or within twelve months after, h-is -arrival at twenty-one years of age. The judgment may be vacated on motion, supported by affidavits or other proof of his infancy, if m-ade during the term at which it is rendered, as allowed by Civil Code, sections 340-342. If it is sought to vacate the judgment -after the term the ¡application must be within the time prescribed by section 391, on the ground provided by section 518, subsection S, and by -peltition, verified by affidavit, and such further proceedings as are pm ■ scribed by section 520.</p> <p>2. Infants — Judgment—Opening and Vacating in General. — As infants, their property and' rights, are under the special care of courts of equity, they have the right at any time within the period prescribed by section 391 of the Code, to apply to such courts ■to vacate any judgment by which injustice has been done them, without relying upon any other ground than that of their infancy at the time of the rendition of the judgment</p> <p>3. Infants — Judgment—Opening and Vacating in General. — The fact that the infant may by a mere motion, supported by -affidavit, made after the term of its rendition, have attempted to have vacated a judgment rendered against him while Ian infant and been refused the relief thus sought, will not bar his right to subsequently and at any time within twelve months after his arrival at twenty-one years of age, obtain its vacation as allowed by section 518, subsection 8, land section 520 Civil Code,</p>

<p>1. Criminal Law — Evdence of Other Crimes. — The general rule that evidence of other crimes is inadmissible upon the trial of a particular crime is subject to well recognized exceptions. Evidence of other crimes being admissible where it tends directly to prove defendant guilty of the crime charged or the motive,» intention or. knowledge, or when two or more crimes are so linked together in point of'time and circumstances that one can not be fully shown without proving the other.</p> <p>2. Criminal Law — Issues and Theories of Case in General. — Refusal to give tendered instruction, though correct, is not error when the substance of the instruction tendered is embraced in those given by the court.</p> <p>3. Criminal Law — Appeal and Error. — The verdict of a properly instructed jury on the question of fact will not be interfered with upon appeal unless the mistake is so flagrantly against the evidence as to make it appear at first blush that the jury was influenced by passion or prejudice.</p> <p>i. Criminal Law — Appeal and Error. — The evidence examined and found to support the verdict of a properly instructed jury, which found the appellant guilty of wilful murder and fixed his punishment at death.</p>

<p>1. Indictment and Information — Sufficiency.—An indictment charging that accused persuadéd a person and his daughter to absent themselves from the county and to remain away for at least two terms of court does not charge two offenses.</p> <p>2. Obstructing Justice — Pendency of Litigation. — A person may be guilty of the common law offense of obstructing public justice during the pendency of litigation.</p> <p>3. Criminal Law — Indictment and Information — Instructions.—It is not necessary that the instruction should literally follow the verbiage of the indictment.</p> <p>it. Indictment and Information — Words and Phrases. — The use of the conjunction “or” instead of “and” held not objectionable under the facts of the case.</p> <p>5. Criminal Law — Evidence.—It was not error for the court to permit a witness to read to the jury a receipt given by the appellant at the time he paid a sum to be released from all liability from any criminal or civil proceedings.</p>

<p>1. Officers — Compensation of Commonwealth Attorney — Deficiency. —Fines and Forfeitures. — A Commonwealth’s attorney, under the provisions of section 98 of the Constitution, and sections 124 and 125 of the Statutes, is entitled to no per cent, of any fines or forfeitures to supplement a deficit in his salary for any prior year or years, except for such deficit, if any, for the year in which such fines and forfeitures were assessed.</p> <p>2. Officers — Compensation of Commonwealth’s Attorney — Fines and Forfeitures. — The right of the Commonwealth’s attorney to the statutory percentage of fines and forfeitures must be measured by each year of his incumbency in office as a unit, and if the fines and forfeitures of which he claims his percentage were neither assessed nor collected during that year, he may not appropriate any part of them to supplement a deficiency for any other year.</p>

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

<p>1. Wills — Construction—Intention of Testator. — In tbe construction of wills the cardinal rule is to ascertain from the entire contents the intention of the testator and to construe it so as to carry out that intention.</p> <p>2. Wills — Intention of Testator. — The “intention of the testator” referred to above is the one which he expressed by the language employed, and is not a secret or supposed intention not expressed.</p> <p>3. Wills — Ambiguity—Construction.—When the language of a will is ambiguous and is equally susceptible of two constructions, one of which disposes of all of the testator’s property, and the other would result in his dying either wholly or partially intestate, it will be presumed that he intended to dispose of all of his property, and the construction will be given which has that effect.</p> <p>4. Wills — Intention of Testator. — Courts may, in an endeavor to arrive at the intention of the testator, transpose, insert or omit words or clauses so as to effectuate his undoubted intention; but before this can be done it must appear beyond reasonable doubt that the testator intended to express the meaning conveyed after the making of such transposition, insertion or omission.</p> <p>6. Wills — Partnership Property — Intention of Testator. — Where a partner by his will directed that property actually owned by the partnership, but the title to which was held by himself alone, be sold and the proceeds applied to the discharge of a lien on another piece of partnership property, the title to which was held jointly, and then directed that the other partner should have his one-half interest in the property relieved of the lien and his one-half interest in the surplus of the proceeds. Held, that he did not intend thereby to devise to his surviving partner the testator’s one-half interest in the entire partnership property.</p>

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

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

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

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

<p>1. Appeal and Error — Review—Granting of Motion for New Trial.— Unless an abuse of discretion clearly appears, the action of the trial court in granting a new trial will not be disturbed on appeal.</p> <p>2. Appeal and Error — Granting of New Trial — Newly Discovered Evidence — Abuse of Discretion. — Where, upon a trial, the evidence that defendant did not execute and deliver a particular deed was unsatisfactory, and after the trial the record of a divorce case, which had been out of the clerk’s office for some time prior to the trial, Was discovered, and this record contained a deposition of the defendant in which he stated that he had deeded the land in controversy to his wife, there was no abuse of discretion in granting the new trial on the ground of newly discovered evb dence.</p> <p>3. Deeds — Delivery—Prima Facie Evidence — Burden of Proof. — Proof that a deed had been acknowledged by the defendant, and had been on record for about twenty years, was sufficient to make out a prima facie case of delivery, and to impose on the defendant the burden of proving the contrary.</p> <p>i. Appeal and Error — Review—Absent Witness — Affidavit—Harmless Error. — The refusal to permit an affidavit for 'Continuance to be read as a deposition of an absent witness was not prejudicial error, where the only admissible portion of the affidavit was lacking in probative force.</p> <p>5. Adverse Possession — Champerty—Husband .and Wife. — Where lands of a wife are jointly occupied by her and her husband, his possession is not adverse to her so as to support a title by adl verse possession, or sustain the plea of champerty.</p> <p>6. Homestead. — Divorce.—An absolute divorce terminates the husband’s right of homestead in his wife’s property, where the decree is silent on the question.,</p>

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

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

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

<p>1. Criminal Law — Venue.—A circuit court does not have jurisdiction to find, or hear or try an indictment for t'he commission of an offense, which occurred wholly in another county, except jurisdiction to do so, be conferred upon it by the circuit court of the county, wherein the offense was committed, by ordering a change of the venue of the prosecution to it, as provided by law for the change of venue of a pending indictment or information.</p> <p>2. Criminal Law — Jurisdiction—Consent of Accused. — Where a circuit court does not h-ave jurisdiction of the subject matter of a prosecution, it can not acquire jurisdiction of the person of the accused, without his consent.</p>

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

<p>1. Contracts — Purchase and Storing of Hemp — Reimbursement.—By a contract between plaintiff and defendant under which defendant agreed to purchase hemp for plaintiff as its agant, it was stip* ulated that the hemp should be stored in defendant’s warehouse, defendant’s commission to cover all expenses of conducting the business. The warehouse burned and defendant stored salvaged hemp in the country, paying storage, for which he seeks reimbursement. Held, that defendant is entitled to reimbursement for unforeseen and extraordinary expenses necessarily incurred in caring for plaintiff’s hemp-.</p> <p>2. Appeal and Error — Finding of Chancellor. — -The rule that where upon a question of fact the proof is so conflicting as f?o- leave the mind in doubt the decision of the chancellor will be accepted, does not apply where the error is one of law.</p> <p>3. Contracts — Itemized Expense Account. — When an itemized expense account is kept for the purpose of making a charge therefor the party claiming thereunder should not be permitted to add a gross sum upon the mere statement that he knows he expended that much or more in addition to the account kept by him.</p> <p>4. Appeal -and Error — Approval of Master’s Report. — In his report the master credited defendant with the purchase price which he paid and charged him. with the value of salvaged, tow in accordance with the appraisement made soon after the fire. Plaintiff claims that the charge should have been for the full value before- the fire because of defendant’s inability to disclose what he thereafter received from a sale of same. Held, that the appraised value not having been shown to be incorrect, and in absence of other proof of its value, the master under the circumstances adopted the most satisfactory plan and' the chancellor’s judgment approving same should not be disturbed.</p> <p>5. Appeal and Error — Judgment—Interest.—A judgment upon an accounting may, under section 2220, Kentucky Statutes, include accrued interest upon the net amount, when correctly ascertained, due the successful party, but when a judgment for a single fixed sum, including accrued interest, is upon appeal affirmed as to part but reversed as to other items, and remanded for a new trial of still other items involved, it is reversed as to all interest included therein, since such interest was calculated upon an incorrect and reversed adjudication of the net indebtedness. Hence it was error to allo-w in the second judgment any interest on interest from the date of the first judgment. The accrued interest that may be included in a judgment upon a settlement of accounts, except as otherwise provided by law, is simple and, not compound interest, calculated upon the correct indebtedness as finally adjudged.</p> <p>6. Appeal and Error — Reference to blaster — 'Costs.—The- court did not err in adjudging costs of the reference to the master against defendant, even though upon one of the items referred defendant . recovered a substantial sum, since this is but a single action in which plaintiff has the only judgment carrying costs.</p>

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

<p>1. Divorce — Alimony—Appeal.—While the Court of Appeals lias no power to reverse a decree of divorce, it may review the decree to determine whether alimony was properly awarded.</p> <p>2 Divorce — -Alimony.—Where it was shown that the husband had at least $2,000.00 and probably more, and was receiving a salary of $1,500.00 a year, an allowance of $2,000.00 alimony to his wife waa not excessive.</p>

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

<p>1. Executors and Administrators — Services—Relatives—Presumption —Pleading—Evidence.—Where in an action by a nephew to charge the estate of his aunt for services rendered her in consideration of her agreement to give him all her property at her death, the administrator filedi an answer denying that the parties made the contract sued on, or any other contract except “as it will appear hereinafter,” and then alleged a different contract from that sued on, the admission that there was a contract was sufficient to overcome the presumption that the services were gratuitous, and to dispense with the rule requiring ‘the establishment of an express 'contract by stricter proof than is necessary in the case of an ordinary contract.</p> <p>2. Frauds, Statute of — Operation and E.ffeet — Oral Agreement to Devise Real Estate — Services and Reliance on Contract. — An oral agreement to devise real estate to another in consideration of services to be performed is within the statute of frauds and cannot be enforced, but the party performing the services is not without a remedy and may recover the reasonable value of his services.</p> <p>3. Appeal and Error — Trial—Instructions—Pleading—Proof.—Where in an action by a nephew to charge the estate of his aunt for services rendered in consideration of an agreement by her to give him all her property, there was neither pleading nor proof of the value of his services, it was error to instruct the jury that the measure of his recovery was the reasonable value of his services.</p>

<p>1. New Trial — Newly Discovered Evidence. — A new trial will not ordinarily be granted! for newly discovered evidence if such evidence is merely cumulative, unless it is of such a decisive character as to render it practically certain that it would have influenced the verdict. But for evidence to be cumulative within this rule it must be directed to the same fact as was the evidence to which it is cumulative. If its purpose is to establish an independent collateral fact or circumstance tending to establish the principal fact it is not cumulative within the meaning of this rule.</p> <p>2. New Trial — Newly Discovered Evidence. — Before a new trial will ■be granted on the ground of newly discovered1, evidence it must ■be shown that due diligence was used to obtain it. It is not sufficient for this purpose to merely allege that such diligence was exercised; the applicant should go further and allege facts from which the court may determine whether such diligence was exercised.</p> <p>3. New Trial — Newly Discovered Evidence. — Where it appears that the alleged newly discovered witnesses reside in the vicinity, and that the applicant or his attorneys had access to andi talked with them either before or during the trial, a new trial will not be granted because of their testimony unless it further appears that they concealed the facts from the applicant after he made efforts to obtain them, and the same is true with reference to a witness who was present during the trial, whether he testified or not.</p>

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

<p>1. Bail — Breach of Condition of Bond — Forfeiture.-—Where a person indicted for a felony has been inducted into the military service of the United States government, either voluntarily or by draft under the selective service act, when the defendant and his surety were instrumental in securing his induction, and at the time of trial is stationed at a camp within forty miles of the place of trial, a two hours’ ride by rail, and upon application to the proper officer by the accused or his bail a pass or furlough would be granted to enable the accused to attend court, but such request is not, made the bond for the appearance of the accused should be forfeited.</p> <p>2. Bail — U. S. Selective Service Regulations. — Under rule 13 of the selective service regulations any registrant at large on bail, under criminal process, having been classified as any other registrant, pending his discharge from confinement or the final disposition o£ Ms case, shall be treated as standing at the bottom of class IV.</p> <p>3. Bail — CJ. S. Selective Service Act. — Where accused were placed in class 1A under the selective service act, at their express solicitation, and by reason of said placement were -inducted into the national army, whereas had rule 13 been followed, they would not have been called, effort on their part to be placed in class 1A was not indicative of any effort on their part to -comply with the obligations of their bond.</p> <p>4. Bail- — Release from Bail, — Causes which will entitle a bail to a release from the obligation of his bond are stated in the opinion.</p> <p>5. Bail — Soldier in U. S. Army. — Where accused had been offered a pass or furlough, which would have enabled him to attend trial, but declined to accept same, his non-appearance did not warrant or justify discharge.</p> <p>6. Bail — Soldier in U. S. Army — Discharge of Bail. — If the principal on the day fixed for his appearance was a soldier in the United States' army and made application for a pass or furlough for the ■purpose of attending trial and he should be prevented from attending the trial solely because of the refusal to secure the pass or furlough his hail will be discharged;</p> <p>7. Bail — Soldier in U. S. Army — Forfeiture of Bail. — The Soldiers’ and Sailors’ Civil Relief Act of 1918, has no application to a case involving the forfeiture of a bail bond where neither the accused nor their sureties made any effort to have the former attend trial, and' where it is in evidence that a pass or furlough would have been granted had it been requested, and in fact a pass wa3 offered to one of the accused for the purpose of attending trial.</p> <p>8. Bail. — Forfeiture of Bail — Sureties.—The non-appearance of the accused due merely to the fact that he was iu the military service ■of the United States government does not release the surety where it was within the power of the defendant and his sureties to have the accused present at the trial of the indictment and no attempt was made by either to do so.</p> <p>9. Bail — Forfeiture of Bail — Selective Service Act. — The judgment, findings and determination of the several draft boards under the selective service act are final where the board has proceeded in •due form and the parties involved have been given a fair opportunity to be heard and present their evidence; but where, after the classification and induction of the accused into the army, they are so situated as to be able to attend trial, forfeiture of the bond ■for their appearance does not bring in question any judgment, proceeding or determination of the draft board.</p> <p>10. Bail — Waiver of Irregularity — -Sureties.—Any irregularity in the filing in the circuit court of a hail bond taken by a police court is waived where the parties throughout the trial treat the bond as ■having been filed, admit the suretyship in the answer, in which no irregularity is pleaded, brief the case as if the bond had been put in evidence, and the bill of evidence shows it to have been filed.</p> <p>11. Bail — Obligation of Bond — Forfeiture.—The obligations of a bail bond are that the accused shall be in court on the date fixed to answer the charge against him and shall at all times render himself amenable to the orders and process of the court; failing so to do the bond will be forfeited.</p>

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

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

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

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

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

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

<p>1'. Criminal Daw — Evidence—Admonitions.—On cross-examination of a witness introduced by defendant in a murder trial to prove his reputation for peace and quietude witness was allowed to testify regarding a specific act of defendant. Objection of defendant overruled and the court admonished the jury “that they were not" to take this testimony as substantive testimony against the defendant, but only to affect the credibility of the defendant for¡ peace and quietude if in their mind it did affect his credibilty.” Held, that this admonition, although erroneous, could not have been construed as authorty for the jury to consider the evidence for the purpose of affecting defendant’s credibility as a witness but only for peace and quietude.</p> <p>2. Criminal Daw — Evidence—Admonitions.—While it is error for the .court to fail to properly limit the effect of evidence where an objection is made calling tlie court’s attention to tlie necessity therefor, such error will not authorize a reversal unless it appears irom the whole record that defendant’s substantial rights were prejudiced thereby.</p> <p>3. Criminal Law — Impeaching Evidence — -Admonitions.—The error of the court in failing to properly admonish the jury as to the effect of impeaching evidence held not to be prejudicial upon all the ■ evidence in this ease.</p>

<p>Appeal and Error — Former Appeal — Judgment in Obedience to Mandate. — Where upon a second appeal no question of either fact or law not decided upon the first appeal is presented and the judgment appealed from was rendered in obedience to the (mandate of the Court of Appeals, the judgment must be affirmed. (See Bondurant v. Dahnke-Walker Milling Co., 179 Ky. 774.)</p>

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

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

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

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

<p>1. Officers — Term, of Office — Vacancies and Holding Over. — Under the provisions of an act of the legislature, approved March 16, 1918, being chapter 11, Acts 1918 (page 31), the office of county-assessor was abolished and there was substituted therefor the office of county tax commissioner, the assessors then in office becoming by the terms of the act county tax commissioners for tfie' term of office which they were then filling. Held, that one filling a vacancy in the office of assessor or by appointment when the act took effect is entitled to hold the office of county tax commissioner only during his appointive term, and that it should be filled at such regular election as is provided in section 152 of the Constitution.</p> <p>2. Officers — Filling Vacancies. — The provisions of section 152 of the Constitution relative to filling vacancies in office apply to offices created by the legislature, as well as those created by the Constitution.</p>

<p>1. Homestead — Election to Take Without Allotment. — When land occupied as a homestead at the death of the husband is worth less than $1,000.00 and the widow in proceedings instituted for that purpose could have had set apart to her the whole of it as a homestead her continued occupancy of the land without such proceedings will be treated as an election on her part to hold the whole of it as a homestead. In such a case proceedings to have homestead allotted are not essential to preserve the right of the widow to a homestead.</p> <p>2. Homestead — Allotment of. — We have no statute providing for the allotment of homestead except when it is sought to sell land under coercive process; but courts of chancery may, in proceedings for that purpose, set apart homestead.</p> <p>3. Homestead — Increase in Valuation. — The widow may continue to hold land set apart to her as a homestead although during her occupancy it may increase in value beyond the amount allowed as the value of a homestead.</p> <p>4. Homestead — Dower—Widow Cannot Claim Both. — The widow cannot claim both dower and homestead although she may elect which she will take, and when she elects, the election is binding upon her.</p>

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

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

<p>1. Criminal Law — Motion for Continuance. — Where following the return of an indictment against him for murder, six days intervened between the appellant’s arrest thereunder and the day- upon which his case was set for trial; and the truth of the statements of three absent witnesses constituting, as claimed, material evidence in ' his behalf, set forth in his affidavit for a continuance, was admitted by the attorney for the Commonwealth, and no showing • • was made by appellant that the full' effect and benefit to him of the testimony of the absent witnesses could not be had without their personal presence at the trial and the oral giving of their testimony in open court, the overruling of his motion for the continuance by the trial court is not reversible error.</p> <p>2. Criminal Law — Continuance—Evidence.—Although the homicide for which the appellant was indicted may be said to have resulted from a controversy between him and the deceased as to the true location of the line dividing their lands, that fact did not entitle the former to the continuance on the ground statéd in his affidavit, namely: that a suiwey of the .disputed line would- furnish evidence that the line should be located as claimed by him and that the continuance asked was necessary in order that opportunity .be - given to make the survey. Evidence as to the location of the disputed line furnished by a survey would not have been competent. As the only issue triable under the indictment was the guilt or innocence of appellant of the crime charged, evidence as to the line should have gone no further than to show that it was in dispute and that deceased tore down the fence as changed and erected by appellant. Such evidence was properly admitted because competent to show the bad state of feeling between the parties, and as bearing on the motive actuating each of them at the ' 'time of the homicide.</p> <p>3. Criminal Law — Instructions.—An- instruction asked by the appellant singling out and giving undue emphasis to certain facts or features of the evidence was properly refused.</p> <p>4. Criminal Law — Review of Manner of Selecting Jury. — Error of the trial court in the matter of selecting or impanelling a jury in a criminal case, is one which section 281, Criminal Code, declares shall not be reviewed by the Court of Appeals.</p>

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

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

<p>1. Insane Persons — Settlements of Committees — Exceptions—Jurisdiction of County Court — Appeal—Jurisdiction of Circuit Court.— On final settlement of a committee of an insane person, his administrator may question not only the accuracy of the final settlement, but of preliminary settlements that had been confirmed, by filing exceptions thereto, and not only has the county court the right to pass on the exceptions, but the propriety of its action is reviewable on appeal to the circuit court.</p> <p>2. Insane Persons — Committees’ Compensation. — Under Sec. 3883, Kentucky Statutes, providing that the allowance to executors, administrators and curators “shall not exceed five per cent, on all amounts received and distributed except in cases of extraordinary services,” a committee of a lunatic is not entitled to charge a commission of five per cent, on the amount received, but five per cent, only on the amount received and distributed.</p> <p>3. Insane Persons — Liability of Committee — Statutes.—In view of Sec. 2153, Kentucky Statutes, providing that “the power and duty of the committee of an idiot, lunatic, imbecile or incompetent person shall, in all respects, be the same as those of the guardian of an infant except as to education,” sec. 2035, Kentucky Statutes, providing that if, from any source, a balance is owing by a guar-, dian at the end of any year, which ought to have been invested or loaned out for the benefit of the ward in reasonable time, but which remains ip the hands of the guardian, he shall be charged with interest from the end of the year in which the balance arose, and thereafter with interest upon interest in biennial rests, applies to committees of lunatics as well as to guardians; and where a committee charges a ward a commission to excess of what it is entitled to, it is liable not only for such excess but for interest from the end of the year in which such excess arose, and thereafter for interest upon interest in biennial rests.</p> <p>4. Insane Persons — Investments—Powers and Liability of Committee. — In view of sec. 2035, Kentucky Statutes, supra, a committee of an insane person is without authority to invest the funds of its ward in notes which make it impossible to compound the interest every two years as provided by the statute, unless it shows that no other reasonably safe investment could have beep made at the time, and is liable for such additional interest on the ¡amount of such notes as it could have obtained had the money paid for the notes been invested in conformity with the statute.</p> <p>5. Insane Persons — Settlements of Committees — Exceptions—Accrued Interest. — An exception to the settlement of a committee of an insane person should be sustained where it appears that the committee in purchasing a note credited itself with too much accrued interest, and the administrator of the insane person is entitled to recover the difference.</p> <p>6. Insane Persons — Settlements of Committees — Sale of Standing Timber — Exceptions.—Though the committee of an insane person has ¡no right to sell the standing timber on his ward’s lands without an order of court, yet where the sale took place many years ago, and the committee showed by the best evidence obtainable that the sale was made with the approval of certain relatives of the ward, that the price received was fair and adequate, and that it accounted for every dollar of the- proceeds, there is no reason why it should ibe required to pay any sum in excess of that which it actually received, and an exception to such item in the committee’s settlement should be overruled.</p>

<p>1. Guardian and Ward — Appointment of Guardian — Precedence— Weight Attached to Decision of County and Circuit Courts.— Where the action of the county court in the appointment of a guardian outside of the next of kin has been approved by the circuit court it is entitled to great weight and will not be disturbed unless it is made plainly to appear that in making the appointment the county court abused the discretion -vested in it by section 2021 of the statute-which allows the court to depart from the order of precedence laid down ini the statute when the interest of the infant so requires.</p> <p>2. Guardian and Ward — Appointment of Guardian — Precedence.— The county court should in making an appointment follow the order of precedence pointed out in the statute unless there is good cause for not doing so.</p>

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

<p>1. Counties — Fiscal Court. — Tbe fiscal court, alone, can exercise tbe corporate powers of a county, except in the instances, where the law 'has otherwise provided.</p> <p>2. Counties — Election Booths — Fiscal Court Bound by Contract of Purchase. — Under section 1467, Ky. Stats., the sheriff of a county is authorized to .purchase booths, for the purpose of the elections of the county, and the county is bound by his contract and the fiscal court must comply with it, by allowing for the price of the booths and directing the treasurer to pay it, unless the contract was the result of the fraud of the vendor or fraudulent collusion between the vendor and sheriff.</p>

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

<p>1. Intoxicating Liquors — Misrepresentation of Brewery — Recovery of Damages Against. — One who in good faith buys, for resale in •his store, a soft drink labeled "non-intoxicating” in reliance upon the assurance of the brewery that it is non-intoxicating, and who is charged, arrested, convicted, fined and imprisoned for selling, the alleged soft drink, may recover damages of the brewery.</p> <p>2. Damages — Wrongful Misconduct of Another — Recovery. — The mere fact that one is found guilty of a violation of a statute will not prevent his recovery of damages where he acted in good faith and the wrong complained of resulted from the willful misconduct of another and not through any intentional wrong or bad purpose of the one convicted.</p> <p>3. Contracts — When Not Against Public Policy. — A contract is not against public policy unless it is injurious to the interest of the public, contravenes some established interest of society, is violative of some public statute, is against good morals, or tends to interfere with the public welfare or safety; and courts will not refuse to enforce a contract merely because it is remotely connected with an illegal transaction except in the instances above named.</p> <p>4. Contracts — Purchase of Soft Drinks — Public Policy. — A contract for the purchase of a non-intoxicating or soft drink for resale in local option territory is not against public policy.</p>

<p>1. Limitation of Actions — Interruption of Statute. — Subject to but few exceptions, when tbe statute of limitation begins to run against a right to enforce a cause of action, the running of the statute is not interrupted by reason of any subsequent event or condition.</p> <p>2. Limitation of Actions — Death of Ancestor. — Where a cause of action, if any, accrued during the life of the ancestor, the death of the latter will not stop the running of the statute.</p> <p>3. Limitation of Actions — Minority of Children. — -The minority of children, or other heirs, will not arrest the statute that has begun to run, the bar being just as complete as if the ancestor had lived through the whole time of the statutory period. By the descent cast, the statuts of'the heirs is not different from that of the ancestor.</p> <p>L Limitation of Actions — Action by Heirs to Set Aside Deed.— Sec. 2505, Ky. Stats., held to bar an action by heirs to set aside a deed executed more than 15 years prior to the institution of the action.</p> <p>5. Limitation of Actions — Action to Set Aside Deed on Ground of Fraud. — In a suit to set aside a deed on the ground of fraud limitation begins to rum from the time of the execution of the conveyance or the perpetration of the alleged fraud.</p> <p>6. Limitation of Actions — Limitation Against Heirs. — Where certain heirs were living and free from disability, except that some were married or infants, the heirs take as a class and when limitation ■begins to run against some of them it runs against all.</p>

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

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

<p>1. Exceptions, Bill of — Time to Present — Extension of Time — Statutes. — The provision in sec. 334 of the Civil Code of Practice that the party objecting must except when ithe decision is made, and that -time may be given to prepare a bill of exceptions but not beyond a day in the succeeding term to be fixed by the court, is mandatory; and a -bill of exceptions cannot be filed after the term at which the motion and grounds for a new trial are overruled, unless further time be given by an order of court.</p> <p>2. Appeal and Error — Review—Want of Bill of Exceptions. — In the absence of a bill of exceptions, the only question to be considered on the appeal is whether the -pleadings support the judgment.</p> <p>3. Pleading — Judgment—Pleadings to Support Judgment. — In an action in ejectment plaintiff alleged that he was the owner and entitled to the possession of a certain described tract of land, and that defendants were withholding a certain described portion thereof. After denying the title of plaintiff, defendants answered in substance that they were the owners of a certain described tract of land by adverse possession, “and that if the boundary of land set out in the plaintiff’s petition conflicts to any extent with the boundary herein described, they are the owners of that conflict”: Held, that the pleadings were sufficient to support a judgment for plaintiff, although the averments of ownership of the land in controversy were not denied, since the averments were so hypothetical and conjáagggt that a failure to deny them admitted mo fact that would authorize a judgment in favor of the defendants.</p>

<p>1. Insurance — Failure to Pay Premium Note. — Tbe provision in a policy of insurance and an installment note representing tbe premium, providing that the company shall not be liable for any loss or damage to property while any premium note remains due and unpaid is valid and enforcible, and the failure on the part of the insured to pay said noté, when due, is a sufficient defense in an action on the policy to recover for a loss occurring during the period when the premium is past due and unpaid.</p> <p>2. Insurance — Forfeiture of Policy — Waiver.—Such provision for forfeiture of the policy for non-payment may be waived by the company by any action on its part indicating its intention not to insist upon the forfeiture.'</p> <p>3. Insurance — Forfeiture of Policy. — If a company elects to treat the policy as a subsisting obligation it cannot, when subsequent events make it to its interest to do so, withdraw the election! then made and say the policy was forfeited.</p> <p>4. Insurance — Non-Payment of Premium — Waiver.—The right to enforce a forfeiture for non-payment of a premium or pi’emium note is not waived by mere silence or inaction on the part of the company.</p> <p>5. Insurance — Non-Payment of Premium — Burden of Proof. — In a suit on a policy which it is claimed is forfeited for non-payment of premiums, the burden is on plaintiff to prove there has been a waiver of the provision of forfeiture and to show the policy was in force at the time of the loss.</p> <p>6. Insurance — Representations of Agent. — -Representations of an agent prior to the date of the policy that notice of the time of payment of the premiums would be 'given is not binding on the company as all previous verbal arrangements are merged in the written contract.</p> <p>7. Insurance — Payment of Premiums — Custom.—If the insurance company, by its acts or declarations, constituting a custom, received premiums, without objection, after they aré past due, and this custom is known to and relied upon -by the insured, the company will be deemed to have waived the right to claim a forfeiture.</p> <p>8. Insurance — Indulgence in Payment of Premiums — Waiver.—Mere indulgence in the payment of a premium does not constitute -a waiver of the policy provision. To have any binding effect the course of dealing must amount to a custom known and relied upon.</p>

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

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

<p>Insurance — Burden of Proof — Waiver.—The party who would fail upon the whole case if no evidence at all was introduced, is entitled to the burden and the closing argument, and where in a suit upon a policy of insurance-the defendant admitted the policy and loss but attempted to avoid the contract by pleading the “vacancy and unoccupied” clause of the policy, alleging that the house was and had been vacated for more than ten days next before the fire, in violation of the terms of the policy, and the plaintiff by reply averred that' the agent of the company for and on behalf of the company had waived the vacancy and unoccupied clause in the contract, the only issue left was the waiver alleged by the plaintiff and denied by the defendant, and as the burden was on the plaintiff to establish the waiver he was properly awarded the closing argument.</p>

<p>1. Principal and Agent — Authority of Agent — Third Persons Dealing with Agent — Notice.—Every agency is subject to the legal limitation. that it cannot be used for the benefit of the agent himself or any person other than the principal, in the absence of an agreement that it may be so used; and, as this is a matter of law, and not of fact, all persons must take notice of it.</p> <p>'2. Principal and Agent — Authority of Agent — Misuse of Principal’s Property — Liability of Third Person. — Through her brother and agent, plaintiff agreed to trade a house and lot to defendant for three unimproved lots and $100.00. Plaintiff made the conveyance and defendant conveyed the lots to plaintiff by deed which was not recorded. Thereafter, at the direction of the agent, he destroyed the deed to plaintiff and conveyed the lots to innocent third parties, knowing that a part of the consideration was the payment of the agent’s debts: Held, that as the defendant' knew that the lots were being conveyed to pay the agent’s debts, he acted at his peril, and was liable to plaintiff unless he could show that the agent acted under authority from plaintiff.</p> <p>3. Frauds, Statute of — Memorandum and Writings — Sufficiency.— Though the original agreement referred to above was in parol, the execution and delivery of the deed by defendant took the case out of the statute of frauds.</p> <p>4. Principal and Agent — Misuse of Principal’s Property — Liability of Third Party — Measure of Damages. — In such a case, the defendant is liable not because of his failure to comply with his contract, but because of his tort in depriving plaintiff of her property, and the measure of damage is the reasonable market value of the property of which she was deprived.</p>

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

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

<p>1. Insurance — Failure to Pay Premiums. — -Where premiums on a policy of fire insurance fall due on. October 1st, ■ and there is a condition in the policy, providing that the insurance company shall not be liable in case of default in the payment of the premiums on the day named, and that the policy shall be suspended during the period in which the insured fails to pay; his premiums, the failure of the insured to pay the premiums promptly will suspend the operation of the policy during his default, and until the premium is paid at the office of the insurance company and accepted by the company, at which time the policy is revived and becomes effective.</p> <p>2. Insurance — Failure to Pay Premiums. — A failure to pay a premium due on October 1st, until October 15th, will suspend the operation of the policy from the^first to the 15th; and if a fire occurs in the interim, destroying the insured property, the company will not be liable on the policy, and this is true although the insured may have forwarded a check after the first of the month and before the occurrence of the fire, which was not received at the office of the company and credited before the fire.</p>

<p>1. Appeal and Error — Persons Not Parties. — Persons, who are not parties to a suit, can not appeal from a judgment rendered in it.</p> <p>2. Joint Tenancy — Denial of Title of Co-Tenant — Estoppel.—One, who jointly with' another, procures a survey and a patent for a tract of land, and then occupies the land, claiming title under the pat- • ent, is estopped to deny the title of his co-tenant on account of any claim of title, which he might have made, previous to the granting of the patent as against his co-tenant.</p> <p>3. Joint Tenancy — Co-Tenants.—A joint tenant of lands, in possession, holds the possession for himself and his co-tenants, and whatever benefits accrue to the title toy his possession, are for the equal benefit of bis co-tetoants.</p> <p>A Adverse Possession — Limitation of Actions — Co-tenant—Notice.— Before the statute of limitation will begin to run, in favor of the adverse possession of a joint tenant against his co-ténant, the one asserting adverse possession must give his co-tenant notice of his adversary claim of title, or his acts must be such as amount to such notice.</p> <p>5. Joint Tenancy' — 'Conveyance by — Effect.—A conveyance by a tenant, in common, or joint tenant, by metes and bounds, of a portion of the jointly owned lands, bestows upon the vendee a right, which is subordinate to the rights of the other co-tenants.</p> <p>6. Damages — Action to Recover Assessment of Damages in Condemnation Proceeding. — A land owner can not recover from a railroad company an assessment for damages, in his behalf, made by commissioners in a proceeding to condemn a right of way, where the proceeding was dismissed by the corporation before the report was approved, or the condemnation adjudged.</p> <p>7. Joint Tenancy — Conveyance by — Equity of Vendee. — When a tenant, in common assumes to convey a portion of the jointly owned lands, in fee, the vendee does not acquire any right, which can be allowed to prejudice the rights of the co-tenants of his vendor, but, he does have such equities, that', if in a partition of the lands, the tract conveyed to him, can be.assigned to the portion set apart to his vendor, as his share, without injury to the rights of the co-tenants of his vendor, he will be protected to that extent.</p>

<p>I. Wills — Power Conferred Upon Executor — Sale and Conveyance By. — A testatrix by the third and fourth clauses of her will devised her entire estate, after payment of her debts, to two of her sons equally in trust for their wives and children, respectively, clothed the sons with power as such trustees to divide between them the trust property, and empowered each trustee, after such division, to sell any part of the real estate held by him in trust for reinvestment in other real estate to be held in like trust, but required that such sale and reinvestment be made by authority and under the judgment of a court of equity. By the fifth clause of the will one of the sons (Upshaw Buckner) was given, as the executor thereof, the following powers: “My executor shall have full power and authority to sell and convey any portion of my lands before the final division of same between the devisees under the third clause of this instrument, if it shall be necessary to sell land for the payment of my debts or charges against me or my estate, or for any other purpose; and the division of my lands devised by said clause may be made by my said sons, Henry C. Buckner and Upshaw Buckner.” Held, that the power conferred upon the executor by the fifth clause of the will was to sell and convey any part of the lands devised, before the final division of the estate between the trustees named in the will, either for the purpose of paying debts against the estate “or for any other purpose” necessary to the proper administration of the estate or its equal division, preparatory to such division, between the brothers for the purposes of the trust created by the third and fourth clauses of the will.</p> <p>2. Wills — Power Conferred Upon Executor. — The power to sell any part of the lands devised conferred on the executor by the fifth clause of the will, could only be exercised by him before a division between the two sons of the testatrix of the estate devised them in trust; and a sale and conveyance of any part of the devised lands made by the executor before such division, whether the sale was for the purpose of paying debts against the estate of the ^estatrix, or to enable him and his brother to make a fair division between themselves as trustees of the estate devised them in (trust, .passed to a (bonia fide purchaser of the land a valid title to same.</p> <p>3. Executors and Administrators — Purchase of Land Sold By. — A purchaser in good faith and for a valuable consideration of land sold by an executor under authority conferred by will, is not required to look to the application of the purchase money, unless so expressly required by some provision of the will. Ky. Stats., section 4846.</p> <p>4. Executors and Administrators — Purchaser of Land Sold By — Good Faith. — Where one purchases land from an executor he is bound to know whether or not the latter is authorized by the will to make the sale, and if the executor has no such power the purchaser is not an innocent or bona fire purchaser. But where the executor has power to sell, a purchaser from him acquires good title, notwithstanding the bad faith of the executor in making the sale, where he had no knowledge of such bad faith; for the purchaser has a right to presume that the executor is acting in good faith, and is not bound to inquire whether a necessity for the exercise of the power given by the will exists; and unless he has notice that the sale is made-for a purpose other than that for which the will empowers the executor to sell, he will acquire ■ a good title.</p> <p>5. Executors and Administrators — Power of Sale Conferred Upon— Accounting. — Although in this case the executor under the power of sale conferred by the will sold more of the devised land than was necessary to pay the debts of the estate, as such sales were also necessary to a proper division of the devised estate as contemplated by the will, and also authorized by the will for that purpose, and the surplus proceeds of the sales, after payment of debts, were accounted for by the executor in a subsequent division of the estate made, as required by the will, between himself and 'brother (as trustees thereunder, the executor cannot, in an action threafter brought against l}im by certain of the devisees and beneficiaries of the trust created by the will, be again made to account for the money. Especially is this true where such devisees or beneficiaries, being sui juris, themselves participated in the sales of the lands or division.of the estate which followed: for as to them the doctrine of estoppel would apply.</p>

<p>1. Deeds — Sufficiency of. — It is essential to the validity of every deed that there should be a grantor, a thing granted and that it must pass a present interest whether contingent or vested to the grantee and be based on a good or valuable consideration.</p> <p>2. Descent and Distribution — Bastards—Illegitimate Children — Marriage of Father and Mother. — A child begotten and born before the marriage of its father and mother will be legitimated by the marriage and be capable of inheriting from the father, although at the time the child was begotten and born the father had a living and undivorced wife.</p>

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

<p>1. Divorce — Alimony—Costs.—In an action by a wife for alimony, the executors of her husband’s father who were summoned as garnishees were required to file an inventory-, and to settle their accounts before a special commissioner. On appeal it was held that the wife was not entitled to the inventory and settlement, but that the executors should be required to file an answer showing in detail the character and value of the estate devised, the character and value of that portion turned over to the husband, and the character and value of that portion remaining in their hands, and' the executors recovered certain costs of the wife: . Held, that as the costs recovered by the executors were incurred in a bona fide effort to ascertain the value of her husband’s estate, and were a necessary incident to her suit for alimony, they were properly a part of plaintiff’s costs for which her husband was liable.</p> <p>2. Divorce — Allowance of Counsel Pees — Amount.—Where in a wife’s action for alimony plaintiff filed an amended petition, after the work of her attorneys had been practically completed, stating that she had good reason to believe and did believe that her husband had reformed and that a reconciliation between them would be effected on his return from the war, and withdrawing her claim for permanent alimony, and asking for reasonable support until his return, the results of the labor of her attorneys should be measured not by what plaintiff was willing to accept because of her desire for a reconciliation, but by what' she would have been entitled to receive had she not elected to give her husband another chance.</p> <p>3. Divorce — Allowance of Counsel Pees — Amount.-—In a wife’s action for alimony, evidence considered and held that an allowance of $1,500.00 to her attorneys was not unreasonable..</p>

<p>Mortgages — Unrecorded Trust Agreement — Notice.—Grantor conveyed land to bis son for a valuable consideration, but remained in possession after tbe conveyance. A judgment and order of sale was secured by tbe administrator of a mortgagee of tbe son and grantor brought suit to restrain tbe administrator and tbe court’s commissioner from enforcing tbe judgment and order of sale, alleging a trust contract executed by tbe son at tbe time of tbe conveyance which be fraudulently failed to record, and that grantor’s possession after conveyance was sufficient to put the mortgagee upon notice of said trust.1 Held, that grantor’s possession is presumed not inconsistent with tbe record title of bis grantee, and conclusively so as to tbe mortgagee of bis grantee, who is a bona fide purchaser without notice, in tbe absence of a showing that mortgagee actually knew of tbe Character of tbe possession of tbe grantor or tbe existence of tbe unrecorded trust agreement.</p>

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

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

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

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

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

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

<p>1. Corporations — Conduct of Director. — A director of a corporation dealing with, the company on his own account must be careful not to be guilty of any unfair or dishonest conduct in such transactions.</p> <p>2. Corporations — Conduct of Director. — Directors of corporations are bound to exercise nothing short of the, uberrima tides of the civil law. They must not allow their official conduct to be swayed by their private interest or welfare, unless that interest be one they have in common with other stockholders, nor must they profit at the expense of the others.</p> <p>3. Corporations, — Conduct of Directors. — Private interests of directors must yield to their official duty whenever these interests conflict.</p>

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

<p>1. Criminal-Law — Setting Aside Verdict of Jury. — In criminal cases the verdict of :a properly instructed jury will not be set aside on the ground of the -insufficiency of evidence to support it unless the verdict is flagrantly against the evidence and strikes the mind’at firs-t -blush as having been returned under the influence of passion and prejudice on the part of the jury.</p> <p>2. Criminal Law — Law of the Case. — The law as announced on the first appeal of the case is binding upon the parties im all subsequent appeals where the evidence is substantially the same. And this rule includes all questions expressly decided on the first appeal as well as those presented, by the record but not noticed in the opinion!, unless the opinion expressly refrains from passing on them. And this rule applies in criminal eases the same as in civil cases.</p> <p>3. Criminal Law — Impeachment—Instructions.—Admonition.—It is the duty of the court to instruct or admonish the jury as to the purpose and effect which should be given to impeaching testimony, but the error ini failing to do so will be considered to have been waived unless the complaining party objected to the testimony at the time or moved for its exclusion, or requested the court to give the admonition, or in some way called the attention of the court to the error; for such admonitions are not technically instructions under the requirements of the Code .that instructions should be in writing and that-the court should instruct the jury in criminal oases upon the whole law of the case. But although the court’s attention might be called to the error and it should fail to admonish the jury as to the purpose and effect of the testimony the judgment will not be reversed for the error unless it be both a material and prejudicial one.</p>

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

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

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

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

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

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

<p>1. Insurance — Agent of Insurer. — Ad agent who solicits insurance, takes applications therefor and delivers policies will be treated as the agent of the insurer, and not the insured, notwithstanding a provision iru the policy declaring him the agent of the insured.</p> <p>2. Insurance — ’Constructive Knowledge of Principal — Notice.—In insurance, as in other contracts, the principal is affected with constructive knowledge of all material facts of which its agent received actual notice, or acquires actual knowledge while acting in the course of his employment and within the scope of his authority, although the agent does not in fact inform the principal thereof.</p> <p>3. Insurance — Knowledge of Agent — Estoppel.—Where the agent of the insurance company in receiving an application for insurance has actual knowledge, or equal knowledge with the insured, of the facts affecting the risk asked about and answered in the application, and himself writes answers that are wholly or in part false, or by misleading statements induces the insured to make or adopt them, when the latter is acting in good faith and without intent to deceive, the insurance company, when sued upon the policy, will be estopped to rely upon the falsity of the answers to defeat a recovery.</p> <p>4. Insurance — Accident Insurance — False Answers in Application.— Where in an action upon an accident insurance policy to recover for an injury caused the plaintiff solely through external, violent and accidental means, the defense interposed by the answer of the defendant was that the plaintiff in his application for the insurance made false answers to certain questions therein asked him with the purpose to deceive the insurer; that the answers were material to the risk and that the policy would not have been issued if the true facts had been made known to .the insurer by the assured, the law imposed on the defendant the burden of proving the falsity and materiality of such answers, and that the policy would not have been issued if the true facts had been made known to it by the plaintiff. While in this case the evidence on these issues of fact was conflicting, as they were submitted to the jury under proper instructions from the trial court, and their finding in favor of the plaintiff, as to such issues was not flagrantly against the evidence, that court’s refusal to grant the defendant a new trial on the ground that the verdict was contrary to the evidence, was not error.</p>

<p>1. Master and Servant — Negligence—Question for Jury. — In a servant’s action for personal injuries, evidence considered and tbe question of defendant’s negligence field for the jury.</p> <p>2. Damages — Evidence—Extent of Personal Injuries. — In á servant’s action for personal injuries, evidence considered and field tfiat a verdict for “the sum of $5,000.00 for physical pain and suffering and $5,000.00 for future disability” was not excessive.</p> <p>3. Evidence — Demonstrative Evidence. — In a servant’s action for personal injuries, a doctor, who qualified as a specialist in X-ray work, •testified that he made the plates showing the condition of plaintiff’s jaw, that each was an accurate representation of what it purported to represent, and that, while he did not know whether he made the prints or not, the prints were accurate reproductions of the plates. The plates were identified by the doctor and marked by the notary. A photographer testified that he made the prints from those plates, and that they were accurate: Held, that their evidence and the plates and prints themselves’were admissible.</p> <p>4. Appeal and Error — Evidence—Ord.er of Evidence — Discretion of Court — Prejudicial Error. — As to the time when evidence may be heard the trial court is vested with a broad discretion, and the mere fact that a witness is permitted on re-direct examination to give evidence which should have been given on his direct examination will not be regarded as an abuse of discretion entitling appellant to a reversal, unless it appears that appellant was thereby prejudiced.</p> <p>5. Appeal and Error — Master and Servant — Measure of Damages —Personal Injuries — Instructions.—The difference between the Kentucky measure of damages for a personal injury and that adopted by the Federal courts is so slight, that a judgment in favor of the plaintiff will not be reversed because the trial court, in a personal injury action arising under the Federal Employers’ Liability Act, gave the Kentucky measure of damages instead of that adopted by the Federal courts.</p>

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

<p>1. Master and Servant — Lessor of Railroad — When Not Liable to Servant. — The owner and lessor or licensor of a railroad track, while liable to the members of the public for the negligent operation of the road, and to the servants of the lessee or licensee for the negligent maintenance of the road and other permanent structures, is not liable to its own servants for the negligent management and operation of trains under the control of the lessee or licensee, since its servants do not sustain to it the relation of being members of the public within the rude referred to, but sustain the relation exclusively of master and servant.</p> <p>■2. Master and Servant — Injury to Servant by Negligence of Lessee— Liability of Master. — If a servant of the lessor or licensor is injured through the negligence of the lessee or licensee, the master is not liable unless he violated (his duty toward his servant of failing to exercise ordinary care in furnishing the servant a safe place in which to work, or safe appliances with which' to perform his work.</p> <p>3. Master and Servant — Liability of Lessor — Safe Place to Work.' — It is not negligence per se for the owner of a railroad to permit anjother to operate it, either exclusively or jointly with him, and he is not liable to his servant for the negligence of such lessee or licensee, unless the danger which its negligence created was either actually or constructively known to the lessor for a sufficient length of time to enable .it by the exercise of ordinary care to remove the danger created by such negligence, and where the negligence immediately produced the injury to the lessor’s servant, the latter will not be liable upon the ground of failing to furnish the latter a safe place in which to perform his work.</p> <p>4. Master and Servant — Appliances—Ordinary Care to Furnish. — A master is not an insurer of the safety of the place where he puts a servant to work, or of the safety of the tools which he furnishes to the servant, but is only bound to use ordinary care-to furnish a reasonably safe place in which, or reasonably safe tools with which, to work.</p>

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

<p>1. Infants — Sale of Real Estate of — Joinder of Suit to Settle Estate amd to Sell Indivisible Property. — In a suit under subsection 2 of section 490 of the Code to sell indivisible estate in which an infant has an interest the estate of the deceased may be settled under section 428 of the Code.</p> <p>2. Infants — Sale of Real Estate of — Joinder of Suit to Settle Estate and to Sell Indivisible Property. — In "a suit under section 428 of the Code to settle the estate of a deceased it is not improper to join the cause of action provided for in subsection 2 of section 490 when the estate sought to be sold is indivisible.</p> <p>3. Infants — Sale of Indivisible Estate of — Suit May Be Brought in Name oí Statutory Guardian of Infants Without Making Any Person. Defendant. — In a suit to sell the indivisible real estate of infants under subsection 2 of section 490 the petition may be brought . by the statutory guardian as plaintiff without making any personi defendant.</p> <p>4. Infants — Sale of Indivisible Estate of — Infant’s Interest to Remain Lien on Land. — Under section 497 of the Code the share of an infant in land sold under subsection 2 of section 490 remains a lien on the land until the infant becomes of age or the guardian! executes a bond as required by section 493.</p> <p>5. Infants — Sale of Indivisible Land of — Lién' on Land for Purchase Money Due Infant — Rights of Infant Against Purchaser. — Where indivisible land of an infant is sold the interest of the infant -in the proceeds remains a lien on the land if no bond is executed, although the court may have permitted tiae purchaser to pay the full purchase price into court and have distributed the whole thereof under orders of the court, and the infant may as against the purchaser or his vendee have the land sold to secure the amount of the proceeds due her: ' '</p> <p>6. Infants — Sale of Indivisible Land of — Lien on Land to Secure Interest of Infant — Orders of Court No Protection Unless Code Complied With. — The right of an infant to secure his interest in the proceeds of indivisible estate sold under a judgment and have a lien on the land to secure the payment thereof will not be defeated by orders of court directing the payment of the interest of the infant to the guardian or any other person .unless the bond •'’required by the Code has been executed.</p> <p>7. ' 'Judgment — Void Judgments — Judgment -Not Void Because Statutory Guardian of Infant Plaintiff Was Also Attorney for Lien Creditor. — In a suit to sell the real estate of an infant the fact that the statutory guardian of the infant who brought the suit as plaintiff was also the attorney for a creditor who set up a bona fide lien on the land will not make the judgment void.</p>

<p>1. Principal and Agent — Agency—Termination of. — Where a contract with an insurance agent stipulated that if he should not write a specified amount of insurance during any month the agency might be “terminated at' any time without notice,” the failure of the agent to write the specified insurance did not in and of itself terminate his agency. It only gave the company the right to terminate it for this cause.</p> <p>2. Process — Service on Agent of Corporation — Effect of. — The service of a summons on an authorized agent of a corporation has the same legal effect as if the service had beeni made on the president or chief officer of the corporation.</p> <p>3. Process — Service on Agent of Corporation — Failure of Agent to Notify Corporation. — The failure of an authorized agent to notify the corporation of the service of summons upon him in a suit brought against the corporation does not entitle it to a new trial on the 'ground of accident, surprise, casualty or misfortune.</p> <p>4. New Trial — Judgment by Default — Grounds on Which May Be Set Aside. — A judgment by default will not be set aside during the term unless the grounds for a new trial come withip the fair meaning of sections 340 or 518 of the Civil Code providing that a new trial may be granted on account of accident or surprise, casualty or misfortune.</p>

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

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

<p>1. Mines and Minerals — Royalties—Damages.—In tbis action by lessors to recover of the lessee of coal lands, royalties which they claimed tbey would bave received under tbe lease for coal mined tbereon, but for tbe lessee’s abandonment of tbe lease before tbe expiration of tbe term; and also to recover damages, claimed to bave resulted to tbe leased premises, from, tbe lessee’s alleged improper manner of conducting its mining operations tbereon: Held, that the judgment of tbe circuit court rejecting both claims and dismissing tbe petition, was authorized by tbe evidence.</p> <p>2. Mines and Minerals — Royalties—Evidence.—Tbe first claim was properly rejected because, according to tbe evidence, the royalties admittedly received by tbe lessors, altogether, not only paid what was due them under the lease as long as tbe mining operations were conducted by tbe- lessee thereunder/ but also what tbey would bave been, entitled under tbe terms of tbe lease to receive,: by way of royalties, if tbe mining operations on- tbe land bad continued the full term of the lease, ......</p> <p>3. Mines and Minerals — Damages—Pleading—Evidence.—If it could be said that the averments of the petition respecting the second claim showed that the injuries to the land complained of, resulting mainly from the dumping of waste from the mine on it, were not necessarily incidental to the proper conduct of the mining operations and such as the parties, in entering into the lease, must have contemplated would necessarily result to the land, it was, at any rate, made to appear from the weight of the evidence that •this was the case.</p>

<p>1. Highways — Passways—Prescriptive Use. — It is a well recognized doctrine in this jurisdiction that a passway may be acquired by prescription, whether the claimant be the public or an individual. If the owner of land suffers the public or an individual to use a passway over his land, knowing it is claimed as a matter of right, and such user is continued under a claim of right for as much as fifteen years, the law presumes a grant or dedication of the passway by the owner to the public or individual, and its acceptance by the latter; and in such state of case the burden is on the owner to show that the use of the passway by the public or individual has been permissive.</p> <p>2. Highways — Use of Passway as Matter of Right. — The necessity for the passway is not material, where it is claimed and has been used as a matter of right, adversely to the owner of the land, for as much as fifteen years.</p> <p>3. Highways — Prescriptive Use — Evidence.—Where it is made to appear from the evidence that a passway has been continuously used as such by the public, adversely to the owner of the land and wider a claim of right for the statutory period of fifteen years, or, as in this ease, a much longer time, the owner of the land, after the prescriptive right of the public to the use of the passway he-comes thus fixed, cannot by objecting to its use by certain individuals or giving permission to certain others to use it, deprive the passway of its character as such, or the public or such individuals of the right to continue its use.</p> <p>4. Appeal and Error — Finding of Chancellor. — Ini an equitable action the Court of Appeals will give the chancellor’s findings of fact some weight and will not disturb the judgment, unless it is unsupported by the evidence. But if after examining and weighing the evidence for itself, it is left in doubt whether it supports the judgment, it will in such state of case affirm the judgment.</p>

<p>1.- Pleading — Alternative. Statement of Fact. — Subsection 4, section 113, Civil Code, permits a pleader to set out an alternative state- ; merit of fact for his cause of action, where .he does not know which fact is true, but, knows,, that one or the other, of the alleged . facts, is true, but, to make a, good cause of action, each of, the alternatives must present a case, which entitles the pleader to ■ ' relief, otherwise, it will be assumed, that the pleader intended to rely upon the statement of fact, which does not make a cause ' of complaint.</p> <p>2. Contracts — Restraint of Trade — Common Daw in Force. — The commoni law upon the subject of contracts in restraint of trade, is in force in Kentucky, in addition to the statutes, embraced in ■ ■ chapter 101, Ky. Stats.</p> <p>3w- Contracts — Restraint of Trade. — A contract made with an illegal combination or association of persons, in restraint of trade, will . not be enforced, when the. .enforcement would be ini .furtherance of the illegal purposes- of the combination.</p> <p>4. . Contracts — Restraint of Trade. — When it is necessary to recover ’ in an action to rely upon and prove an illegal contract to createá monopoly or combination in restraint of trade, the action can -, not be maintained.</p> <p>5; Contracts — Restraint of Trade — Recovery.—A member of an il- •' legal combination -restraining -trade, is not precluded, from a recovery upon a contract, which is independent of the contract by • which- the. illegal combination is formed, and is not in- furtherance • ■', of its purposes.</p>

<p>1. Railroads — Actions for Injuries — Interstate Commerce. — A section band while loading steel rails for use in tbe tracks of a railroad company over which intrastate and interstate traffic is carried is engaged in interstate commerce.</p> <p>2, Master and Servant — Federal Employers’ Liability Act. — The test applicable is, was the employe at' the time of the injury engaged in interstate transportation or in work so closely related to it as to'be practically a part of it?</p> <p>3.. Master and Servant — Federal Employers’ Liability Act. — Whether an employe acting under the instruction of another member of a section crew, while assisting in releasing a rail, was injured through the negligence of the other members of the crew, was a question, under the Federal Employers’ Liability Act, for the ' jury.</p> <p>4. Master and Servant — Assumed Risk. — The doctrine of assumed risk has not been entirely abrogated by the Federal Employers’ Act, but it does not apply where the injury grows out of a violation of some Federal statute enacted for the safety of employes.</p> <p>5. Appeal and Error — Evidence—Statement Made at Time of Injury. —Failure to permit a witness to testify to a statement said to have been made by appellant at the time of his injury is not error where the appellant was a witness in his own behalf and his testimony covered the fact' attempted to be brought out by other witnesses.</p>

<p>1. Landlord and Tenant — Death of Tenant — Does Not Terminate Lease. — When a lessee of property dies his death does not terminate the lease.</p> <p>2. Landlord and Tenant' — Death of Lessee — Duty and Liability of Personal Representative in Respect to Leased Premises. — When a lessee under an ordinary rental contract dies, the leased property comes into the possession of his personal representative and he has only three rights of election in respect to it: (1) He may keep the property thereby charging the estate with the performance of the terms and conditions of the lease. (2) He may sublease the premises, but this will not relieve the estate of its obligations under the lease. (3) He may surrender the leased premises thereby cancelling the lease, but this course would subject the estate to a suit for damages by the landlord for breach of contract.</p> <p>3. Landlord and Tenant — Death of Tenant — Rent Not a. Preferred Claim Against the Estate. — When the lessee of real property dies and the property passes to his personal representative the rents except as provided by statute, are not entitled to a preference over other general debts in the distribution of-the estate.</p> <p>4. Landlord and Tenant — Death of Tenant — Rent Due by Tenant Not a Preferred Claim Against the Estate. — Section 3868 of the Kentucky Statutes providing that the “cost and charges of the administration” shall be a preferred claim against the estate of a decedent refers to such “cost and charges” as are necessarily incurred by the personal representative in the settlement of the estate, but do not embrace ordinary contract obligations of the decedent that the personal- representative is under a duty to discharge out of the assets of the estate; although the expense incurred by the personal representative in looking after leased premises that came into his possession would be a preferred claim as a part of the cost of the administration to the same extent as would expenses incurred by him in looking after any other business of the estate.</p> <p>5. Landlord and Tenant — Lien of Landlord on Income of Leased Premises. — Under section 2317 of the Kentucky Statutes providing -that a landlord shall have a superior lien “on the produce of the farm or premises rented” the landlord has a superior lien on the net income derived by the lessee from the rented premises as this income is a part of the “produce” of the premises rented. But this superior lien of the landlord does not extend to other property of the tenant and when he has exhausted the' property on which the statute gives him a superior lien, the remainder, if any, of his claim becomes an ordinary debt aiid this provision of the statute applies to leased premises that come into the hands of the personal representative.</p>

<p>Trial — Evidence—Instructions—Applicability to Issue. — Where all ■ the pleadings making .a particular issue wefe dither rejected or - stricken from the "record; it was error to hear evidenc'd'or to in- . ' ■ struct on such issue, » , . • .</p>

<p>1. Appeal and Error — How Prosecuted. — Before an appeal can be prosécuted to tbis court, the judgment must not only be final, but it must have been rendered without the voluntary consent of the appellant, and without its rendition being made necessary because of some voluntary act or refusal on his part. Under this rule no appeal can be prosecuted from any judgment rendered by the trial court upon appellant’s motion, neither can he appeal from a judgment dismissing the cause for want of prosecution when plaintiff refused to introduce testimony upon the calling of the case regularly for trial, unless perhaps all of plaintiff’s witnesses were absent without his knowledge, procurement or consent, after he had exercised due diligence to have them present, or to procure their testimony according to the prescribed rules of practice.</p> <p>2. Appeal and Error — When Appeal Not Entitled to be Prosecuted.— Plaintiff recovered a judgment for $2,500.00, which was set aside upon a motion for a new trial filed by defendant. At the calling of the case for the second trial, plaintiff entered motion to permit him to read the transcript of the testimony of three witnesses heard upon the first trial, which motion was overruled, and he then declined to introduce any testimony, whereupon the court rendered judgment dismissing the case for want of prosecution. Held, that plaintiff was not entitled, under these facts, to prose-cute an appeal.</p> <p>3. Trial — Use of Depositions at Subsequent Trial. — Under the provisions of section 4643 of the Kentucky Statutes, a litigant is not entitled, upon a subsequent trial, to read the testimony of witnesses heard upon a former trial, unless he manifests to the court' in some way that the testimony of such witness or witnesses could not be procured by him, and if he had the right to take the depositions of such witnesses, he can not read their former testimony unless he further shows a legal excuse for not having taken them.</p>

<p>1. Vendor and Purchaser — Waiver of Lien. — It is competent for the vendor in a deed to expressly waive a lien upon the land conveyed to secure the deferred payments, and-when voluntarily done he can no.t subject the land to the payment of the notes.</p> <p>2. Reformation ofs Instruments — Limitation of Actions. — To reform a deed which contains an express relinquishment of any lien upon the land conveyed to secure deferred payments, upon the ground that the relinquishment was inserted in the deed'through fraud - or mistake, the suit for reformation must be brought within five years from the discovery of the fraud or mistake, but in no event after ten years from the date of the deed.</p>

<p>Master, and Servant — Direct Command — Assurance of Safety— Promise of Protection — Assumption of Risk — Question for Jury.— Defendant’s trolley wire was supported by span wires strung from opposite poles. Defendant’s foreman placed a ladder against the trolley wire and directed plaintiff to' ascend the ladder and cut one of the span wires, at the same time assuring, plaintiff that it was sáfe1 and saying that though the trolley wire might sag a little, “I will guide the ladder and hold.you”: Held, in view of the foreman’s direct command, assurance- of safety and promise of protection, that it was a question for the jury whether the danger was so’obvious and, imminent that ah ordinarily prudent person in plaintiff’s situation would have refused tó chance it.</p>

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

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

<p>1. New Trial — Discretion in Awarding.- — Trial courts have a broad discretion in awarding new trials, and a judgment will not be reversed because thereof unless it appears that there has been an abuse of this discretion.</p> <p>2. New Trial — Entering Judgment on Former Verdict. — Where a new trial is granted because of a view of the law of the case which is not sustained by this court, and the other grounds are not sufficient to sustain the action, the order will be set aside and judgment entered" on the former verdict.</p> <p>3. New Ti-ial — Error in Granting — Sufficiency of Evidence. — In a policy of insurance against explosion', rupture or collapse of boilers while under steam pressure, was a- clause stipulating that a simple “cracking” of cast iron parts shall not be deemed an explosion, collapse or rupture as insured against. Held, that there was sufficient evidence that an opening which occurred in the boiler was a “rupture” rather than .a “crack” not only to take the case to the jury, but also to sustain their verdict, and the trial court erred in granting a new trial on the ground of insufficient evidence.</p>

<p>1. Contracts — Oral Conversations or Agreements. — Prior oral conversations and agreements will be presumed in tbe absence of a showing -of fraud or mistake to be merged in a subsequently exe-, cuted written agreement.</p> <p>2. Principal and Agent — Agency.—Agency may not be established by the proven statements of the alleged agent.</p> <p>3. Contracts — Real Estate Broker’s Commissions. — Before a real estate broker is entitled to his commissions .he -must show .a contract with the owner of the land and that he complied at least substantially with the terms of that contract. In .this case the testimony examined and held that there was a failure .to show any contract employing plaintiffs, and that -they failed to comply with the terms of their alleged contract had the proof established it.</p>

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

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

<p>1. Taxation- — Annual Tax for Estimated Expenses of the Government of the State — School Fund. — The Constitution of the State of Kentucky provides that the General Assembly shall provide by law an annual tax, which with other resources shall he sufficient to defray the estimated expenses of. the Commonwealth for each fiscal year; these expenses include the maintenance of the common schoojs.</p> <p>2. Statutes — Construction—Meaning of Language. — Where the intention of the lawmaking body is so apparent on the face of a statute that there can be no question as to its meaning there is no room for construction. When language is clear it is an elementary rule of construction that words and phrases are used in their technical meaning if they have acquired one and in their popular meaning if they have not.</p> <p>3. Statutes — Construction—Meaning of Language. — Phrases and sentences are to be construed according to the rules of grammar and words of common use are to be understood in their natural, plain, ordinary and genuine signification as applied to the subject ] '.atter of the enactment.</p> <p>4. Statutes — Inheritance Taxes — Meaning of Language. — The expression “general use of the Commonwealth” found in the inheritance tax law, Ky. Stats., sec. 4221a, means funds for the use of the entire Commonwealth, and has a different meaning from the expression “ordinary expenses of the government” found in sec. 4019, Ky. Stats.</p> <p>5. Statutes — Construction—Meaning of Language. — The expression “general use of the Commonwealth” means a use not limited or restricted to a precise import or application. It pertains to and applies to the entire body politic; it is universal within the limits of the reference; i. e., it applies to all and not merely to some specific or particular part of the whole.</p> <p>6. Statutes — Construction—Meaning of Language. — The expression “ordinary expenses of the government” as found in various statutes pertains to those common, usual or ordinary expenses of the state not otherwise specified. It represents one of the sub-divisions into which the general funds are appropriated. “Ordinary expenses” are the expenditures which are necessary to carry into effect the ordinary powers of the Commonwealth, and this term as found in our statutes is used in contradistinction to express or extraordinary powers or expenses.</p> <p>7. Statutes — Construction—Meaning of Language. — The expression “general use of the Commonwealth” or “for state purposes” is the collective designation of the assets of the state, which furnish the means for the support of the whole government. There are certain great heads or subdivisions of public expenditures to which this income is credited or appropriated as provided by statute, and all receipts must he so prorated unless, in the statute pertaining- to any given source of revenue, it he expressly provided that it shall he used for or credited to a certain, specific or designated purpose.</p> <p>8. Statutes — Construction—Intention.—Where the sense in which language was intended to be used can be clearly ascertained from the statute, its intention thus indicated will prevail and, resort to other means of aiding the construction will be unnecessary.</p> <p>9. Taxation — Common School Fund. — -The income to which the common school fund is entitled is not confined to those sources of revenue provided in section 4370, Ky. Stats., but may be supplemented from other sources.</p> <p>10. Taxation — Inheritance Taxes — Apportionment.—The amount collected from inheritance taxes shall he apportioned to the same funds and in exactly the same ratio as income from ad valorem taxes. ■</p>

<p>1. Officers — Term of Office — Oil Inspector — Vacancy in Office.— Under section 2204 of the Kentucky Statutes the term of office of an inspector of oils is four years and when a vacancy from any cause occurs during the term an appointment to fill the vacancy can only be made until the end of the term of four years in which the vacancy occurred.</p> <p>2. Inspection — Oil Inspector — Term of Office — Vacancy.-—In' determining when the term of an oil inspector will expire, whether he was appointed to fill a vacancy in the office or appointed when the term of four years had ended, it is only necessary to ascertain the date of the appointment of the first inspector under section 2204 of the Kentucky Statutes and count four year periods from that time.</p> <p>3. Courts — Nunc Pro Tunc Orders — When Record Evidence Sufficient. —Under section 2212 of the Kentucky Statutes an oil inspector is required to execute a bond which shall be -filed in the office of thé county clerk; and the execution of this bond with surety, which was found in the county clerk’s office, was sufficient to authorize the subsequent entry of a nunc pro tunc order postdating the appointment of the inspector to the day when his bond was executed and fixing his appointment as of that date, although there was no order of the county court made on the day the bond was executed showing its acceptance or the appointment of the person who had executed the bond as oil inspector.</p>

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

<p>Frauds, Statute of — Promise of Partner to Pay Firm Debt Not Within Statute. — A partner who maKes an oral promise to pay that part of a firm debt, which is primarily due by another member of the firm, is liable to creditors on the promise notwithstanding the statute of frauds, because a promise to p.ay the debt of the firm, or a member's part thereof, is equivalent to a promise to pay one’s own debt because each partner is bound for the entire indebtedness of the firm, and such' a promise need not be in writing.</p>

<p>1. Wills — Antagonistic Provisions — Construction.—Where two or more clauses in a will appear to be antagonistic, it is the duty of the court in construing the instrument to harmonize the various parts thereof so as to make the whole homogeneous, and that construction will be adopted which will give effect to every part of the instrument, if it can be done without doing .violence to the language employed.</p> <p>2. Wills — Devisee of Personal Property for Life — Use of Property.— A devisee to whom personal property is given for life, is not entitled to the increase in the value of the corpus of the devise, but only to the use and benefit or income from such personal property.</p>