Volume 186 — Kentucky Reports

<p>1. Statutes — Repeal of Statute — Construction.—According to the rule of the common law, the repeal of a statute destroyed the right to enforce a penalty for its violation, which was incurred before its repeal, but the statute, section 465, Ky. Statutes, modified this rule, and a repealing statute must now be construed with section 465, and unless it was manifestly intended by the legislature, in enacting the repealing statute to destroy, after the repeal, the right to enforce penalties incurred for violations of the repealed statute,' before its repeal, the courts may enforce the penalties after the repeal.</p> <p>2 Indictment and Information — Exception in Statute — Must be Negatived. — If the sentence or paragraph of a statute, which 'Creates and describes am offense, contains an exception, an indictment for an offense alleged to have been committed under the statute, must negative the exception, in order to state a public offense, under the statute, but, if the exception is contained in a paragraph other than 'the one which creates and describes the offense, or in a proviso, it is a matter of defense to the accused to show, that he comes within the exception or his act is within the saving of the proviso, and in such case, it is unnecessary, in the indictment to negative the exception, or to allege that the act is not within the proviso.</p>

<p>1. Judgment — Collateral Attack — Judgment Relied on- as Link in Chain oí Title. — Where the defendant- in an action of ejectment relies on a judgment as constituting a link in his chain of title, and the plaintiff replies -that the judgment is void for want of jurisdiction, the attack is collateral and not direct.</p> <p>2. Judgment — Collateral Attack — Want of Jurisdiction — Infants —Lunatics.—A judgment of a court of general jurisdiction cannot be collaterally -attacked unless the want of jurisdiction appears on the record, and this rule applies to infants and lunatics as well as to adults and persons of sound mind.</p> <p>3. Judgment — Collateral Attack — Pleading—Sufficiency.—A pleading .attacking a judgment collaterally, whic^. does not allege what the record. showed on the question, but relies solely upon facts outside of the record to show a want of jurisdiction is not sufficient.</p> <p>4. Fraud — Pleading—Sufficiency.—An allegation in a pleading that certain deeds were obtained by fraud is but a conclusion of law. and is not sufficient. Facts constituting the fraud should be alleged.</p> <p>6. Judgment — Attack on Judgment — Remedy When Absence of Jurisdictional Facts Does Not Affirmatively Appear in the Record —Pleading.—Where the absence of -the jurisdictional fact does not affirmatively appear in the record in which the judgment was rendered, the proper remedy of one desiring to attack the judgment is to bring a suit for the purpose of setting aside .-the judgment or to resort to other forms of direct attack. In such a case it is only necessary to allege -and show the absence of the jurisdictional fact.</p>

<p>1. Landlord and Tenant — Use -of Manure for Agricultural Purposes. —Manure produced upon leased premises for agricultural purposes which was produced by cattle owned by the lessee and fed with produce, also owned by him, hut which produce was grown upon the leased premises, belongs to tlhe lessor, and the tenant will be liable to him-for its value 'if the manure should ■be removed from the premises.</p> <p>2. Landlord and Tenant — Use of Manure for Agricultural Purposes —Customs and Usages. — 'The rule is different, however, if there is a usage or custom in the neighborhood to the contrary; provided such 'custom or usage was known to the parties, or of such universal and continuous-application as to he presumed to have been known and such custom is not against public policy.</p> <p>3. Appeal and Error — Harmless Error. — An error in overruling a demurrer to a bad paragraph of a pleading is not harmless so as to require a reversal -of the judgment, if the record affirmatively shows that the judgment was rendered upon the issues presented in good. paragraphs of the pleading, and where the answer contained two paragraphs -to each of which a demurrer was filed hy plaintiff, which was overruled, and plaintiff declined ■to plead further when his petition ,was dismissed, the jpdgment will be affirmed, although upturn appeal one of the paragraph's to which the demurrer was overruled Was found to be insufficient, since in that instance the record affirmatively shows that the judgment was rendered upon the admittedly good paragraph.</p>

<p>1. Corporations — Liability of Stockholder for Debt — Enforcement. —As a general rule of equity procedure the secondary and equitable liability of a stockholder for a corporation debt may not be enforced until the primary and legal liability of the corporation has been determined and that remedy exhausted by Obtaining a judgment and return of “no property found.”</p> <p>2. Corporations — Liability of Stockholder for Debt. — An exception to this rule universally recognized is that a stockholder may be proceeded against directly in equity and without prior judgment ~ and exhaustion of legal remedies against the corporation if it has been legally dissolved.</p> <p>3. Corporations — Procedure Against Stockholder for Liability. —Where a stockholder of a corporation acquired all of its capital stock, sold all of its assets and from the proceeds of the sale paid all corporate debts except one, of which he had full knowledge, converted the balance of the proceeds to his own use and left the corporation without business or assets or officers or agents, held, that the creditor could sue the stockholder directly ini equity upon his secondary liability for the debt without having exhausted legal remedies against the corporation, though not legally dissolved, as in equity a vain and futile thing involving oircuity of action will not be requred as a mere rule of procedure.</p> <p>4. Corporations — Proceeding Against Stockholder for Debt — Parties. — Under such circumstances the corporation was a proper but not a necessary party to an action by the creditor against the stockholder to enforce his equitable liability for a debt of the corporation, and the court erred in sustaining a special demurrer to the petition and dismissing the action without prejudice, because of the failure of plaintiff to make the corporation a party defendant.</p>

<p>1. Judgment — Collateral Attack. — In a collateral attack upon a judgment and proceedings in an old action every presumption must be indulged in favor of the validity of such judgment, and it will be conclusively presumed that all prerequisite proceedings were observed unless the contrary affirmatively appears.</p> <p>2. Judgment — Collateral Attack. — Where in an old action the records have been carelessly kept, papers are missing and orders not properly entered, a denial in a separate and subsequent action between different parties that the customary proceedings were taken to carry into effect the judgment' entered therein constitutes a collateral attack against the judgment and proceedings in that action.</p> <p>3. Judgment — Collateral Attack — Presumptions.—In an action filed in 1866 by an administrator against the heirs and creditors to settle an intestate’s estate, a judgment was entered that to pay debts it was necessary to sell decedent’s one-half interest in a 200-acre patent, and the master was ordered to sell same and take from the purchaser sale bonds. Reports of the commissioner are missing from the papers and orders subsequently entered are not full or entirely clear, but held upon collateral attack sufficient to warrant the presumption that' sale was made and purposes of the action accomplished, nothing to the contrary appearing.</p>

<p>1. Railroads — Presence of Persons on Track — Warnings.—Where the public generally, with the knowledge and acquiescence of a railroad company, have continuously used its tracks for a long period of time, the presence of persons on the track at the point where it is so used must be anticipated by the company in the running of its cars or trains thereon, and it is the company’s duty in the movement of cars at such places to give warning of the approach of its trains, to operate same at a reasonable rate of speed and to maintain a proper lookout.</p> <p>2. Railroads — Presence of Persons on Track — Knowledge and Acquiescence of Company. — This duty depends not on the fact that the place of injury was in an incorporated town or city, but whether the company’s track, at the place of the accident, was used by the public with such frequency or in such large numbers with the knowledge and acquiescence of the company that the presence of persons on the track should be anticipated.</p> <p>3. Railroads — Presence of Persons on Track — Lookout.—That the accident occurred within the corporate limits of a town or city does not of itself impose upon the company the duty of warnings, lookout and other care. It is the habitual use, rather than the location of the track, that is determinative of the question whether one is a trespass'er or licensee.</p> <p>4. Railroads — Notice of Use by Trespasser. — When the use of the track is general and acquiesced in by the company it will be charged with notice of such use.</p> <p>5. Railroads — Lookout in Favor of Licensees — Application.—The duty of lookout, warning and control which the law imposes upon railroad companies in favor of licensees applies to persons using the track as a footway and will not be extended so as to include sleepers or persons sitting or lying upon the ties or tracks.</p>

<p>Trial — Continuance.—Under the circumstances of this case it was prejudicial error for the trial court not to postpone the trial for an hour to secure the presence of an important witness or to let an affidavit containing bis evidence be read, although the party, whose witness be was, announced ready for trial in the absence of the witness.</p>

<p>1. Criminal Law — Trial—Separation of Witnesses — Discretion.—The requirements of section 601 of the Civil Code for the separation by the court of witnesses, upon the request of a party litigant, is not mandatory or imperative upon the court, but are intended ■ only to vest him with power to separate the witnesses upon request, if in his judgment' justice and the orderly and proper conduct of the trial require it, and unless it appears from the record that the court abused its discretion to the prejudice of the substantial rights of the parties requesting the separation, the judgment will not be reversed for this error.</p> <p>2. Criminal Law — Evidence of Commission of Other Crimes. — Proof of the commission of other crimes by the defendant is generally inadmissible, but such proof may be admitted if the commission of such other crimes is recent, for the purpose of establishing the identity of the accused, or to show his guilty knowledge, or a particular criminal intent on his part, or malice or motive for the commission of the offense for which he is on trial, or that the other crime was a part of a plan or system of criminal actions. But the court, should admonish the jury of the purpose for which such testimony is admitted.</p> <p>3. Criminal Law — Arrest—How Made. — An officer may attempt to arrest one when he has reasonable grounds to believe that such person has committed a felony, and in making the arrest it is his duty to inform the alleged offender of his purpose, and perhaps of the crime with which he is charged, but these duties will not be required of the officer if he is prevented from doing so by the unlawful acts and conduct of the one attempted to be arrested or if such person knows him to be an officer and knows the of fense for which the arrest is attempted to be made. Instructions in this case examined and found correct in submitting to the jury the rights and duties of the defendant at the time the deceased attempted to arrest him.</p> <p>4. Criminal Law — Argument of Counsel. — While it is the duty of an attorney in his argument to the jury to confine himself to the law as laid down by the court and the testimony as given by the witnesses, yet he is allowed a reasonable latitude in drawing con-i' elusions and deductions from facts and circumstances appearing in the case, and unless he in his argument radically departs from this rule and injects into the case poisonous, irrelevant and prejudicial matter, for which nothing in the record furnishes justification, the judgment will not be reversed for this reason alone.</p> <p>5. Criminal Law — Witness Not Accomplice Because Jointly Indicted. —A witness is not necessarily an accomplice because he is jointly indicted with the defendant on trial, and if the testimony conclusively shows him not to be an accomplice, the court is not required to instruct the jury as provided in section 241 of the Criminal Code; nor is such an instruction necessarily required even though the witness be an accomplice, if his testimony is substantially the same as that' of the defendant.</p>

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

<p>1. Appeal and Error — Practice—Appellee May Pile Record — Effect of. —Under section 741 of the Code the appellee may file in the clerk’s office of this court the record with the same effect as if filed by appellant.</p> <p>2. Appeal and Error — Practice—Dismissal of Appeal. — The appellee, who files the record, cannot demand as a matter of right the dismissal of the appeal upon the ground that the court has no jurisdiction or for any other reason until the case has been put on the docket.</p> <p>3. Appeal and Error — Dismissal of Appeal — Practice.—When the appellant fails to bring the record here within the time allowed by section 738 of the Code, unless he has been given further time, the appellee may bring a copy of the judgment and supersedeas bond, if one, and after filing tbe same in tbe clerk’s office, move the court to dismiss tbe appeal and discharge tbe supersedeas.</p> <p>4. Appeal and Error — Docketing and Advancement of Cases- — Practice. — Under ’section 753 of tbe Code either party may file tbe transcript in tbe office of tbe clerk of this court and move tbe court upon notice to docket, advance and submit tbe case, entering at tbe same time any motions in respect thereto he desires to make.</p>

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

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

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

<p>1. Fraud — Pleading—Sufficiency.—Plaintiff consented for his infant son to apply to defendant for a policy of insurance, and together with his son, executed a note to defendant’s agent for the first premium. The note was discounted at a bank which sued plain- . tiff and recovered a judgment. Claiming that the note was obtained by the fraud of the agent, plaintiff sued defendant to recover the amount of the judgment and his attorneys’ fees in making defense: Held, that the first paragraph of the petition, which pleaded that plaintiff was induced to give his consent to his son’s taking out the policy of insurance by the false representation of the defendant’s agent as to the surrender value of the policy at the end of the eleventh year, stated no cause of action, it not being alleged that plaintiff was thereby induced to sign the premium note for which judgment was recovered against him.</p> <p>2. Fraud — Damages Recoverable — Expenses of Prior Litigation. — In •such a case plaintiff may recover of defendant counsel fees incurred in good faith in defending the action by the bank, if the note was obtained by the fraud of the agent.</p>

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

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

<p>Specific Performance — Character of Estate. — In the granting clause of a deed the land is conveyed to G in consideration of a debt of gratitude. In a later clause it is stated that the land is conveyed to G “to be legally hers and her descendants,” and by another clause G is empowered to sell the land and reinvest the proceeds for the benefit of “herself, her children, or her husband.” Defendants in an action to enforce specific performance of a contract to purchase the land set up that G, who was plaintiff’s remote grantor, had but a life estate. Held, that it is immaterial to defendants whether G had a fee simple or life estate, since her life estate, if such it was, was coupled with a power of sale, and under the deed tendered toy plaintiff the defendants would get a fee simple title.</p>

<p>Deeds — Property Conveyed — Construction—Finding of Chancellor. —In an action to quiet title, defendant’s deed construed and the chancellor’s construction of the property conveyed held to he ■correct.</p>

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

<p>1. Fraudulent Conveyances; — Purchaser in Good Faith — Consideration. — Although the grantor in a conveyance may make it for the purpose of defrauding his creditors, if the property is in good faith purchased by the grantee for a valuable consideration and the deed is in like good faith accepted and consideration paid by him, without knowledge of the intent of 'the grantor to defraud his creditors, and without being in possession of facts reasonably calculated to put him on inquiry as to whether such fraud is intended by the grantor, he will not, upon the setting aside of the conveyance, be made to lose the consideration paid by him for the land.</p> <p>2. Fraudulent Conveyances — Consideration Returned to Grantor. —While the close relationship between the grantor and grantee in this case gave the court cause to look with suspicion upon the conveyance from the former to the latter, and east upon the grantee the burden of showing his ignorance of the fraud intended to be practiced by the grantor, yet the evidence justified the court in giving the same faith to the genuineness of the conveyance, inf sofar as the grantee was concerned, as if that relationship had not existed. Hence, while it was proper to set aside the conveyance and subject the land to the payment of the grantor’s debts, it was equally proper for the judgment to require that the grantee should first be returned the consideration he paid the grantor for the land and given first lien on the land and its proceeds therefor.</p>

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

<p>1. Waste — Actions for Waste — Proceedings.—Where land is donveyed to a wife for life with remainder to her children, the children have no right of action a'gainst the transferee of the mother to recover the land so long as she lives, but may maintain an action for waste.</p> <p>2. Deeds — Lost Deeds — One Relying Upon Must Produce It. — 'One who relies upon a lost deed or title bond must produce it, or account for its disappearance, and it will not be sufficient to show that the original deed has been sent to a person in a foreign state; in such case it is the duty of the one relying upon such deed to take the deposition of the person holding the deed and cause the deed to be made a part of the record.</p>

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

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

<p>1. Officers — Compensation of Cannot Be Reduced During Their Term. — Under section 161 of the Constitution the compensation of a public officer when it is fixed before his election or appointment cannot be ¡redhced or changed during his term.</p> <p>2. Officers — School Superintendent — Compensation of — What Amounts to Change in. — Where the compensation of a school superintendent was fixed before his election at a sum equal to the amount that sixteen cents on each child shown by the census report of all children between the ages of six and twenty would produce; and after his election the legislature so amended the law as that the school age was reduced to children between the ages of six and eighteen alnd the census report only showed the number of children between these ages, thus reducing his compensation, this reduction was in violation of the Constitution.</p> <p>3. Schools and School Districts — Compensatiotoi of County Superintendent — How Arrived at When Based on Number of School Children in County if There Is No Census. — When the compensation of the county school superintendent is based on the number of school children in the county; and the school age after his election is reduced, thereby decreasing his compensation, the salary which he should receive under the new law should be ascertained on a percentage plain based on the census of former years.</p>

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

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

<p>1. Trial — Trial of Common Law Action — Instructions.—A party is not compelled to tender instructions on t'be trial of a common law action, but having elected so to do he will not be heard to complain because the court grants his request and gives the tendered instructions.</p> <p>2. Trial — Instructions.—Where a party offers an instruction upon a point of law which the court refuses to give because of some defect in form or substance, it is the duty of the court to give a proper instruction on that point.</p> <p>3. Trial — Instructions.—A litigant having tendered an instruction which was given, cannot, after an adverse verdict, rely upon an exception reserved to the giving of instructions tendered by him.</p> <p>4. Appeal and Error — Errors Available Upon Appeal. — No error committed during the trial is available upon appeal unless relied upon in the motion and grounds for a new trial, and this is true though an objection was made and exception taken to the ruling at the proper time. The error, if any, will be considered as having been waived unless included in the grounds for a new trial.</p> <p>5. Specific Performance — Compelling Acceptance of Deed. — In a suit for specific performance, where the vendor agreed to convey a itract 'of land, including the eastern wall of a buildin'g on said property, the court will not compel the vendee to accept' a deed where it is shown that only one-half of the wall is on the property described, said wall being a party wall subject to an easement of the adjoining owner.</p> <p>6. Specific Performance — Compelling Acceptance of Deed. — In ordering a vendee to accept a deed to real estate which includes a portion of a party wall built on the dividing line between the property and the adjoining lot, the court properly submitted to a jury, in an issue out of chancery, the question of damage, if any, sustained by the vendee by reason of said easement, and the verdict of the jury supported by proof and not being excessive will be sustained.</p>

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

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

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

<p>1. Divorce — Venue of Action. — Under section 2120, Kentucky Statutes, an action for divorce must be brought in the county ■where the wife usually resides, if she has an actual residence in the state; if not, then in the county of the husband's residence.</p> <p>2. Divorce — Jurisdiction—Waiver of Objection. — Ini an action by a husband for divorce, he pleaded that he was a resident of the county in which the suit was brought. Without objecting in terms to the jurisdiction of the court, the wife filed an answer denying that plaintiff resided in the county where the suit was brought: Held, in view of section 422 of the Civil Code, providing that the residences of the parties to an action for divorce must be proved by one or more credible witnesses, the defendant did not waive the jurisdiction! of the court, but her denial of the jurisdictional facts was in effect a 'plea to the jurisdiction and ■sufficient to challenge the right of the court to proceed unless plaintiff proved the jurisdictional facts.</p> <p>3. Divorce — Residence of Plaintiff — 'Evidence—Sufficiency.—In a husband’s action for divorce, evidence examined and held insufficient to show that he resided in the county where the action was brought.</p>

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

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

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

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

<p>1. Deeds — Construction — Intention of Parties. — The rule uniformly adhered to in the construction of a deed, is, that it should be so construed as to effectuate the intentions of the parties' to it, as manifested by the language used.</p> <p>2. Deeds — Reservation in Favor of One Not Party. — A uniform rule, is, that a reservation in a deed in favor of one, who is not a party to .the deed, does not have the effect of creating title to the thing reserved, in the stranger.</p> <p>3. Deeds — Reservations—Validity.—A reservation in a deed to be valid, must be in favor of the grantor, except, where the title to the thing reserved, is already in the one for whose benefit the reservation is made.</p> <p>4. Deeds — Reservation in Favor of Public. — Where the reservation in a deed is in favor of the public, as the use of á street or road, which is not then in existence, it has been sometimes held, that the reservation is an exception, and the grantor has retained the right to dedicate the use of the road or street to the public.</p> <p>5. Deeds — Reservation in Defined. — A reservation in a deed is generally defined to be some new thing, which in contemplation of law, did not exist before, but which issues out of, or is incident to the thing granted, and which the grantor has created for himself; while an exception, is a clause, which excepts, from the operation of the deed, some part of the thing granted, which otherwise would have passed under the deed, and the' title to which remains in the grantor and will pass to his heirs.</p> <p>6. Deeds — Words and Phrases. — Although the technical words “reserve” and “exeepit,” may be used in setting forth an exc'e®■tion or reservation; whether it is an exception or reservation depends, not upon the térm, used, but, upon the nature of the provision itself, as manifested by the intentions of the parties to the . instrument.</p> <p>7. Deeds — Exceptions.—An exception in a deed, in favor óf a stranger to it, does not vest him with any title to the thing'excepted, but the title remains in the grantor, where the title to the part excepted, is not already in the party for whom the exception is made.</p> <p>8. Deeds — Reservations—Easements.—Where a clause in a deed, although the word “reserve” is used, shows, that the intention of the parties to it, was to give the public an easement in a certain described road, and without such construction, the manifest intention of the parties will be defeated, it will be held to be an exception, and that the grantor has retained in himself, the right to dedicate it to the use of the public.</p>

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

<p>1. Easements — Presumption of Grant — Permissive Use. — Long continued use of a passway under a claim of right will ¿reate a presumption of grant, which presumption the owner of the servient estate must overcome by proof showing that the use was permissive only; but no merely permissive use of the passway will create a right, however long the use may have been.</p> <p>2. Easements — Permissive Use. — While gates across a passway may be evidence of the fact that the use was permissive only, their existence is not conclusive of that fact, and the use of the passway with gates may be of such a character as to constitute the right to use it burdened with the gates.</p> <p>3. Easements — Implied Grant. — Where one conveys a part of his estate, he impliedly grants all those apparent or visible ease* men¡ts upon the part retained which were at the time used by the grantor for the benefit of the part conveyed, and which are reasonably necessary for the use of that part.</p> <p>4. Basements — Adverse Occupancy — Obstruction.—The owner of a servient estate may destroy the right of an owner of an easement over it by adversely occupying by obstructions the easement for as much as fifteen years in the same manner required for obtaining title by adverse, possession. But an occasional obstruction of the passway, and not a continuous one, will not be sufficient for that purpose.</p>

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

<p>1. Municipal Corporations — Streets—Duty of City to Keep in Repair. — Cities are under a duty to exercise ordinary care to keep ' tbeir streets, in reasonably safe condition for public trarel.</p> <p>2. Municipal Corporations — Streets—Duty as to Repair of Streets iiru Outlying Territory. — Whether the rule that cities are under a duty to keep the whole of the street, no matter how wide or what part of It is used by the public, in safe condition for travel should be applied to the whole of the street in small cities and towns is a question that admits of considerable doubt.</p> <p>3. Municipal Corporations — Streets—Excavation Outside of But in Margin: of Traveled Part — 'Liability of City. — Whether a city is liable to the driver of a vehicle who leaves the traveled part of ■a wide street for the purpose of passing another vehicle, although he could have passed without leaving it, if the vehicle drops into an excavation in the margin of the traveled part is a question for the jury.</p> <p>4, Municipal Corporations — Streets—Vehicle Leaving Traveled Part —Excavation in Margin — Liability of City. — -Where a small city kept in good condition a part of a street wide enough to accommodate travelers, and the driver of a vehicle left the traveled part for the purpose of passing a vehicle, although he need not have done so, and the wheels of his vehicle dropped into an excavation on the margin of the traveled part, the presence of which was hidden by weeds and grass, he was not guilty of negligence as a matter of law.</p>

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

<p>1. "Wills' — C'onstrufction.—A testator wrote two holographic wills, one dated July 14, 1908, the other dated June 15, 1909. In the second clause of his first will he provided that his daughter, Mabel B. Atwood, and her husband, Elmer Atwood, “shall have and hold their natural life my farm known as the Elijah Green, Jr., farm . . . and at their death the land is to go to their heirs, Leland and Elmer Atwood, and any other issue they may have at their death.” Oin the original will there was a pencil mark through the words, “and her husband, Elmer Atwood, shall,” and “their natural life,” and the word, “forever,” is written in pencil over the words, “their natural life.” There is also a pencil mark through .the words, “and at their death the-land is to go to their heirs, Leland and Elmer Atwood, and any.” By clause two of the second will it was provided that his daughter, Mabel B. Atwood, should have and hold the Elijah Green farm forever. On January 22, 1912, he added a codicil to the second will, stating that ha had exchanged the Allphin farm for the Rev. L. Johnson farm, and he desired his son, Clarence, to have the Johnson farm in place of the Allphin farm. On July 25, 1916, he added the same codicil to the first will: Held, unnecessary to determina whether the last codicil had the effect of reviving the whole of the first will, since with the erasures and interlineation made by the testator clause 2 in each will was the same, and gave to Mabel B. Atwood the fee simple title.</p>

<p>1 Municipal Corporations — Annexation of Territory. — Where land surrounded by two municipalities abuts the only connecting highway between said cities, and a considerable portion thereof is shown to be suitable for municipal use and residential purposes, an ordinance annexing same to a fourth class city will be sustained, where no material injury will be caused the owner of the property and many benefits will accrue .to the owners because of such annexation.</p> <p>2. Municipal Corporations — Annexation of Territory. — Considering the benefits incident to annexation to a city of the fourth class the payment of municipal taxes on a tract of unimproved land, used as a pasture, sought to be so annexed is inot such injury to the owners as is contemplated by statute.</p>

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

<p>1. Fraudulent Conveyances — Transactions Subject to Attack by Creditors. — In 1910 B conveyed property to his wife. In January, 1916, the same property is conveyed by B and his wife to B’s brother, as trustee, and in December, 1916, reconveyed to B as trustee for his daughter. There being sufficient evidence that no consideration passed, these conveyances were fraudulent and void under section 1906, Kentucky Statutes, as to B’s creditors, past, present and prospective.</p> <p>2. Fraudulent Conveyances — Character of Indebtedness. — The deed to B’s wife im 1910 not being bona fide, it is immaterial that his indebtedness to appellee was created after the execution of the. deed.</p>

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

<p>1, Deeds — When. Valid, Though Not Acknowledged or Properly Recordable. — A deed duly signed and delivered by the grantors, even though not acknowledged or properly recordable, is valid mot only as between the parties, but as to all those having notice of it.</p> <p>2. Vendor and Purchaser — Notice—Recitals of Deeds. — A vendee is not only bound by the recitals of his own deed, but must take notice of the coptents of prior deeds therein referred to.</p> <p>S. Vendor and Purchaser — Notice—Recitals of Deeds — Estoppel.—A vendee is in such privity with his vendor that recitals in a deed of record constituting a link in a chain of title that will amount to am estoppel against his vendor will be available as an estoppel against the vendee.</p> <p>4. Vendor and Purchaser — Notice—Recitals of Deeds — ¡Estoppel.—A. C. owned a tract of land in P. county. On the records of that county is a deed from A. C. and wife to P. C. The deed was not acknowledged and was therefore not properly recordable. In 1887, P. C. by deed of record conveyed the minerals to a trustee who conveyed to defendant. Several years later, A. C. and wife and P. C. conveyed the land to J. C., a son of P C., by deed containing the following recital: “This deed is executed in lieu of a deed made to P. C. on August 16, 1885, and which deed was not properly certified and recorded:” Held, that the recital was an admission that the prior deed had been executed by A. C. and wife to P. C. and was therefore sufficient to estop not only the ■grantors, but J. 0., the grantee, from asserting the contrary, that J. C. was charged with notice of the prior deed to his father, P. C., and also of the deed from his father to the trustee which was of record, and having acquired title after the minerals had been conveyed he took title by his own deed to the surface only.</p> <p>5. Deeds — Property Conveyed — Sufficiency of Description. — In a deed of conveyance the description was as follows: “All the coals, metals, oils, gases and mineral products lying, being upon and under our lands in the county of Perry, State of Kentucky, and described as follows, viz.: On the waters of Lot’s Creek and Carr’s Pork, adjoining the lands of Sam Napier and Clinton Combs, 212 acres being patented in my own name, etc., 300 bought from A. C. Combs, being 512 acres”: Held, that the description was sufficiently definite to pass title.</p> <p>6. Champerty — Possession by Father and Son. — ¡Where father and son occupied the land together and there was nothing to show that the son’s possession was hostile to his father, the deed made by the father was not champertous.</p> <p>7. Evidence — Proof of Title — Best and Secondary Evidence — Waiver of Right to Object to Secondary Evidence. — A witness testified that the prior owner -had conveyed the minerals underlying a tract of land to defendant. There was no specific objection to the evidence on the ground that the record, was the best evidence. On the contrary, the witness offered to produce a certified copy of the deed if counsel for plaintiff desired it. There was no request or demand for the deed: Held, that plaintiff waived his right to object to the evidence on the ground that the record was not introduced and could not thereafter insist that defendant failed to show title.</p>

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

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

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

<p>1. Wills — Construction.—Tbe sole purpose of construing a will is to arrive at tbe intention of tbe testator as disclosed by tbe entire instrument, and where that intention is clearly expressed no technical rule of construction will be permitted to defeat it.</p> <p>2. Wills — Construction.—Expressing the confidence that his wife would make a fair allowance to his daughter hy a former marriage, and would properly provide for his two children hy her, testator devised all of his property to his wife and then added: “I make no restriction on her re-marrying, except in case she does she shall at once make proper provision for my children”: Held, that the wife took an absolute estate subject to he defeated to the extent of a proper provision for the testator’s children! in case she married again.</p>

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

<p>1 Insurance — Contract in General. — A contract of insurance is to be treated like any other contract. It is true, such contracts are at times so worded that the rights of the parties are not easily determined; but when they are determined, they are enforced as other contracts.</p> <p>2. Insurance — Contract—Lien Upon Policy. — Where a “19 payment "whole life” policy of insurance upon which the last semiannual premium had been paid, by the insured, provided that should his death occur within the premium paying period the beneficiary should, in addition to its $3,000 paid up value, be paid a bonus equivalent to the loan value of the policy at its last anniversary “as set forth in the table of surrender values below,” but that if his death occurred after the premium paying period, only the $3,000, the principal sum named in the policy, should be paid; and the death of the insured did in fact occur after the premium paying period ended and more than a year after the payment of the last and final premium; in such state of case the beneficiaries named in the policy were only entitled to he paid the $3,000, fixed as the face value of the policy, to be credited by the principal and interest of a note the insured had given the insurer for certain reserve parts of the premiums payable, which was made a "lieru on the policy; and as such was the judgment of the circuit court, it properly determined the right of the parties.</p>

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

<p>Bills and Notes — Payment—Verdict—Sufficiency of Evidence. — In an ac.tiom on a note, evidence considered, and the verdict of the jury that the note had been paid by the transfer of certain corporate stock to plaintiff, held flagrantly against the evidence.</p>

<p>1. Criminal Law — “Cold Check” — What Constitutes Offense — Sufficiency of Evidence. — Where a person giyes a check, with the intent to defraud, om a bank in which he knows he has not sufficient funds to pay it, it is not essential to constitute the offense described in section 1213a of the Kentucky Statutes that any false representation, statement or pretence should .be made by the maker of the check concerning the state of his account in the bank. The mere giving of such a check with the intent to defraud completes the offense and the intent to defraud will be present whenever money, property or other thing of value is parted with by the person to whom .the check is given.</p> <p>2. Criminal Law — “Cold Check” — How Offense May Be Obliterated. —Under the Statute, which gives the maker of a "cold check” twenty days in which to pay it, he must within that time pay or offer to pay the full amount of the check in money. He cannot save himself from the penalty of the statute by returning the •property received, or other thing of value; nothing will obliterate the offense except payment or tender of the full amount of money specified in the check, nor will any agreement between the parties, by or through which the'matter is settled, stop a prosecution or prevent the enforcement of the penalty.</p> <p>3. Criminal Law — “Cold Check’’ — Time of Prosecution and Trial. —Under section 1213a a final trial should be postponed until after the time allowed to make the check good, although a prosecution may be commenced or an indictment found before that time has expired.</p>

<p>1. Judgment — -Amount -of Recovery. — A judgment entered upon a verdict which is substantially greater than t-he utmost amount proven b-y the evidence, can not he upheld.</p> <p>2. Damages- — Breach of -Contract on Tobacco Purchase. — In an action for damages for breach of contract where the plaintiff charges that the defendant, as agent for -plaintiff, had purchased a quantity of tobacco, which he withheld whereby the plaintiff lost profits on a resale, the contract alleged being that the plaintiff was to accept the tobacco at the cost price to the defendant ;plus a commission of $1.10 on the 100 pounds, it is necessary for the plaintiff, in order to sustain his cause of action, to show with some certainty the cost -of the tobacco to the defendant, and where the only evidence in the record shows that the verdict is -several thousand dollars too large, the judgment will be reversed.</p>

<p>1. Dower — Rights and Remedies of Widow — Assignment—Title.—As a right of dower, until it is legally assigned, is a right vesting in action only, the general rule is that it cainnot be aliened so as to enable the grantee to bring an action therefor in his own name. A widow may release her claim of dower to the terretenant so as to bar herself, but she can invest no other person with a legal title thereto 'until it has been assigned.</p> <p>2. Dower — Application to Mortgage. — The above doctrine applies as well to a mortgage upon or lease by the widow of her unassigned dower, as to an ordinary deed of conveyance.</p> <p>3. Dower — Inchoate Interest — Rights of Widow. — Upon ¿he death of the husband -the inchoate right of the wife acquired by the marriage becomes absolute, yet she has no estate in the lands of her deceased husband until her dower has been assigned; and her rights therein can only be released to the owner of the fee or someone in privity with the title.</p> <p>4. Dower — Rights of Widow — -Assignment.—The only right of possession given the widow by the laws of this state in the lands of the deceased husband prior to the assignment of dower, is conferred by seetiom 2138, Kentucky Statutes, which declares that she ‘‘shall hold the mansion house, yard, garden, the stable and lot in which it stands, and an orchard, if there is one adjoining any of the premises aforesaid, without charge therefor, until dower is assigned her.” She is, therefore, only a tenant at will of the heirs until dower is assigned her, which can be done only upon her application, or that -of the lieirs or privies of the latter.</p> <p>5. Dower — When Assignment Not Made — Purchaser from Heirs. —As in this case the widow was never assigned dower in the land left by her deceased husband, appellees, who are strangers to the title, took nothing under the writing by which she attempted to lease the land to them. On the other hand as the -appellant -by purchase and deeds of conveyance from, the heirs at law of the deceased husband became the owner of their respective interests in the land subject to the widow’s dower, and l-ater, as privies of the latter, by like means also the owner of the widow’s dower, the circuit court’s failure to adjudge it the owner in .fee of the land, was and is reversible error.</p>

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

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

<p>1. Schools and School Districts — White- and Colored Districts — Separate Taxing Units. — Where a city of the fourth class has created separate school districts within the city for white and colored children as authorized under section 3588a, Kentucky Statutes, both school districts are separate taxing units, the white school district including only white persons and their property within the city and the colored school district including only colored persons and their property therein.</p> <p>2. Schools and School Districts — Issue of Bonds — Two-thirds Vote of the People. — The city for either the white or colored school district can issue bonds not in excess of the constitutional inhibition when authorized so to do by two-thirds of the legal voters in the school district at an election called for the purpose by the city council at the request of the board of education of the school ■ district.</p> <p>3. Schools and School Districts — Colored Citizens Entitled to Vote In Their Districts. — As only the colored citizens of the city are legal voters in the colored school district, only they are entitled to vote therein.</p> <p>4. Schools and School Districts — Indebtedness.—A debt thus incurred for either school district is its debt, aind not the debt of the city.</p> <p>5. Schools and School Districts — Illegal Bond Issue as to Excess Indebtedness. — The colored school district having only $261,660 of taxable property therein it could not under section 158 of the Constitution incur an indebtedness in excess of two per centum.' thereof, and a proposed bond issue of $10,000 being in excess of such limit was illegal as to the excess.</p>

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

<p>Principal and Surety — Action for Contribution as Co-surety — Defenses. — Appellee sued appellant for contribution as co-surety upon tbe note of another which he was compelled to pay; appellant denied the co-suretyship alleging that he was surety for appellee, and in addition set up in Ms answer a detailed statement of the origin and history of 'the indebtedness evidenced by the note, including two agreements of certain stockholders in two corporations with reference thereto. Held, that neither of these agreements was a defense either as peladed or proven by the appellant, and that the court did not err in refusing to submit one of such agreements as a defense, or in lelling the jury that evidence of the other should not affect the verdict under certain conditions.</p>

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

<p>1. Taxation — Surety Company is Insurance Company. — A surety company is an insurance company within the meaning of section 4229, Kentucky Statutes, and required to pay the premium tax of two dollars on the hundred 'named in that section.</p> <p>2. Taxation — -Corporate Franchise, License or Occupation Tax. — The mere fact that a corporation is required under section 4077, Kentucky Statutes, to pay a franchise tax, does not relieve it of paying a license or occupation tax.</p>

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

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

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

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

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

<p>1. Statutes — Power of Courts to Reform and Reconstruct. — In order that the intention of the legislature may be accomplished and legislation saved from contradictions, omissions or absurdities the court may reconstruct sections, paragraphs and sentences by transposing words or adding or omitting words.</p> <p>2. Constitutional Daw — Classification of Persons and Corporations— Different Penalties May Be Imposed on Each. — 'The legislature in the enactment of laws designed to prohibit monopolies, trusts and combinations, may deal separately in the same act with persons and corporations, and impose different penalties on each class.</p> <p>3. Constitutional Law — Classification of Persons and Corporations — ■ Different Penalties May Be Imposed on Each. — An act to prohibit pools, trusts, combinations and monopolies, that imposed a much heavier penalty on corporations than on persons, was not violative of either the state or federal Constitution.</p> <p>4. Statutes — Constitutional Law — Invalid Sections and Provisions In a Statute May Be Rejected. — Unconstitutional sections and provisions may, under some crcumstances, be eliminated from an otherwise valid act without affecting the validity of its other part if that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent independent of that which was rejected.</p> <p>5. Statutes — Constitutional Law — Invalid Sections and Provisions Invalidate Whole Act — When.—If, however, it appears that the legislature would not have passed the act if the invalid section had not been a part of it it oan not be rejected, and the whole act must be declared invalid.</p> <p>6. Statutes — Constitutional Law — Invalid Section Invalidates Whole Act — When.—Where the legislature struck out of a proposed bill a valid section and inserted an invalid one the presumption is that the legislature would not have passed the act without the invalid section, and therefore it can not be stricken out, and the whole act must be held invalid.</p> <p>7. Constitutional — Class Legislation — Example of Unconstitutional —An act that subjected persons and corporations engaged in mining, manufacturing or transportation to heavy penalties if they became .members of any pool, trust or combination in restraint of trade, and that permitted persons and corporations engaged in other lines of business to become members of such pools, trusts and combinations, was unconstitutional on account of its .arbitrary classification.</p> <p>8. Monopolies — Trusts—Combinations—Statute Law and Common Law in Force. — The common law as well as the act of 1890 contained in sections 3915-3921 prohibiting unlawful pools, trusts and combinations is in force in this State.</p>

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

<p>Railroads — Personal Injuries — Negligence.—A railroad company cannot relieve itself of liability for injury received on account of gross negligence, by a stipulation that a person using and accepting a 'gratuitous pass assumes all risk of accident to person or property.</p>

<p>Trial — Different Causes of Action — Instructions.—Where -a party to an action, upon a trial by jury, has two causes of action or two grounds of defense, either of which being sustained, he is entitled to a verdict in his favor, is entitled to have the instructions so drawn as to ¡present his action or defense to the jury, in a way, io enable the jury to find for him if the proof sustains either cause of action alone if he is a plaintiff, or either ground of defense, if he is a defendant.</p>

<p>1. Libel and Slander' — 'Plea or Answer. — Defendant in a slander suit may in on© paragraph deny the speaking of the words charged and plead their truth in another paragraph, but he can not deny the speaking cf the words and at the same time admit he had spoken said words or substantially the same, the pleas being inconsistent.</p> <p>2. l»ibel and Slander — Evidence—Variance in Form of Expression.— In an action for slander plaintiff is not bound to prove the precise words charged. A mere variance in the form of expression is not material.</p> <p>3. Pleading — Election.-—-Where a pleading cdnitains inconsistent statements or statements, inconsistent with those of a pleading •previously filed, the court shall, upon or without motion, require the party to elect which of said statements shall be stricken.</p> <p>4. Appeal and Error — Instructions.—In civil actions it is not reversible error for the court to fail to give instructions on'any particular issue unless requested in writing so to do. Although proper exceptions may be saved, ii tbe instructions given are correct the iailure to instruct upon other issues will not be availing, unless the complaining party tenders instructions on his theory of the case.</p> <p>5. Libel and Slander — Words Actionable Per Se. — Duty of Jury.— In an action for slander where the words charged are actionable per se it is not for the jury to say what the defendant meant in making the charge, its only duty being to say whether the defendant made the charge^ The absence of actual intent to Injure furnishes no legal excuse.</p> <p>6. Libel and Slander — How Words' Construed. — In an action for defamation it is immaterial what meaning the speaker intended to ■convey. Words cannot be construed according to the secret intent of the speaker. The slander and damage consist in the apprehensions of the hearers.</p> <p>7. Libel and Slander — Trial—Malice—Instructions.—In an action for slander it is error to instruct the jury that they must believe the words were spoken maliciously. If the words charged are actionable per se the law presumes malice.</p>

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

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

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

<p>1. Parties — ¡Numerous-—Right of Person Suing for a Class to Control Litigation — Dismissal or Settlement of. — A plaintiff or defendant, who is a party of record and sues under section 25 of the Code for the use and benefit of numerous other parties, may, at any time 'before the rights of the class for whom he sues or defends have been fixed or -adjudicated by the court, dismiss without prejudice the suit-or defense; but after there has been a judgment fixing the rights of the class the -party of record suing for their ■benefit canlmot dismiss or settle the suit to the prejudice of the class.</p> <p>2. Corporation's — Stockholders—¡Suit by One for Benefit of Others— Right of Plaintiff to Dismiss. — Where one stockholder, representing a «lass,, brought a suit for their use and benefit under section 25 of the Code, he could dismiss the suit at any time before final judgment or the rights of the class were adjudicated; but after a judgment or -adjudication of the rights of the class he could mot make any orders or agreements prejudicial to the interests of the class.</p> <p>3. Actions — Dismissal or Settlement of — Right of Parties to Dismiss. —Parties of record to a suit laboring under no disability may, at any time before the judgment, agree to its dismissal, and may, ■after the judgment, settle it in any way they please.</p> <p>4. Actions — Dismissal or Settlement of — Rights of Parties to. — Although the Court of Appeals may specifically direct what proceedings shall be taken in the lower court to which the case is remanded, the parties to the litigation may disregard in whole or in part the directions of the Court of Appeals, and settle the litigation in any manner they may -agree to.</p> <p>5. Judgment — -Agreed Judgment — ¡Entry of. — The court should enter -such judgments and orders as the parties of record, who are competent to act, agree to.</p> <p>6. Assignments for Benefit of Creditors — Construction of Clause In. —Where a corporation assigned “all of its property of every description, real; personal and mixed” for the payment of creditors -and distribution of the proceeds, this conveyed everything that it owned or had an interest in, including unliquidated claims or claims growing out of the diversiotni or misappropriation of funds, and the assignee assumed the duty of taking such steps as may be necessary to recover all the property conveyed to it.</p> <p>7. Corporations — 'Stockholders—Right of Purchaser of Stock in Corporation that Has Made an Assignment. — A party, who purchases the stock of a minority stockholder in a corporation after it has dismissed a pending suit and copiveyed its property to an assignee, occupies no better position than any other minority stockholder and cannot undo what the corporation did before he purchased the stock.</p> <p>8. Mandamus — Issual of Writ by This Court Directing Judge of Circuit Court to Enter Orders and Judgments. — Whemi the parties of record to a suit pending in a circuit court have agreed on a dismissal and settlement of the case, a writ of mandamus will issue from this court directing the judge, who refused to enter the order of dismissal and agreed judgment, to do so.</p>

<p>Contracts — Breach of Contract — Action for. — In an action to recover for broach of contract, it is ordinarily necessary for the plaintiff to aver that he was ready, able and willing to perform his part of the contract; but where the defendant has notified plaintiff that he will not perform his part of the contract by delivering the .goods or otherwise, and this allegation is made, it is unnecessary to aver readiness to perform on the part of the plaintiff, hut it will he sufficient to allege that the defendant (has refused to comply with the terms of the contract and has so notified the plaintiff.</p>

<p>1. Robbery — 'Sufficiency of Indictment. — An indictment accusing tbe appellant of Ibe crime of robbery by alleging that ibe did '‘unlawfully by force and violence and by putting A. B. Maples in fear of bodily barm take, steal and carry away from the person, in the actual presence of A. B. Maples and against bis will and consent, one gold watch, tbe property of said Maples and the subject of larceny, with the felonious and fraudulent intent to convert tiñe same to his own use and permanently deprive the owner of his property therein," sufficiently alleged such facts as constituted the offense charged; and as on tih© trial of appellant thereunder the evidence showed that the watch was taken by him from the person of the owner by suddenly and forcibly ■assaulting and overpowering the latter, and violently jerking the watch from his pocket and fleeing with it, such proof authorized the verdiot of the jury finding him guilty of robbery.</p> <p>2. Robbery — What Constitutes Crime of. — To .constitute the crime of robbery the person robbed must be feloniously deprived of his property by force or by putting ¡him in fear. If it be proved that he was deprived of the property by force, it need not be proved that he was also put in fear.</p> <p>3. CriiminiaJl Law — Former Conviction — Appeal and Error. — The failure of the trial court to exclude, as incompetent, a question inquiring of appellant on cross examination whether he had previously been convicted of another robbery, was not reversible error, as the question was given a negative answer and the inquiry ended with the single question.</p>

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

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

<p>1. Deeds — Construction—Parol Evidence — Consideration.—Although it is declared by Kentucky Statutes, section 2357: “Eivery deed shall, unless an exception be made thereim, be construed to include all buildings, privileges and appurtenances of every kind ;¡ Bltt'alched to the lands therein 'conveyed,” it is a well recognized doctrine in 'this, as in practically all other, jurisdictions that 'parol evidence, without an allegation of fraud or mistake ini the deed, is admissible to prove that the true consideration for the land thereby conveyed was not the consideration therein expressed.</p> <p>2. Appeal and Error — Admissibility of Parol Evidence to Show Consideration for Deed. — Under the rule above stated it Was not error for the trial court to permit in this case the grantor im a deed, notwithstanding the absence therefrom of a reservation of the crops on the land, to introduce parol evidence in support of the allegations of his petition that by the terms of the contract whereby .the grantee purchased the land conveyed and as a part of the consideration for the sale, the grantor was to retain and have the crops on the land at the time of the sale produced thereon that year; and as the evidence, as a whole, conduced to sustain this contention of the grantor, the verdict of the jury awarding him the crops will not, on appeal of the grantee from •the judgment entered thereon, be disturbed.</p>

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

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

<p>1. Robbery — Indictment and Information — 'Sufficiency.—An indictment for robbery alleging that defendant “did unlawfully amid feloniously take about eighteen dollars in mioney, the property of C. from his person, by force and putting said C. in fear, &c.,” charges a felonious assault as well as a felonious taking.</p> <p>2. Robbery — 'Larceny—Indictment amd Information. — 'Robbery is an aggravated larceny and robbery and larceny are but different degrees of the saane crime. Hence the property alleged to have been taken must be described in the same manner in an indictment charging either offemse.</p> <p>3. Robbery' — Larcency—Indictment and Information. — A compliance with section 135 of the Code in describing money taken is all that is required in Charging either larceny or robbery, and “about eighteen dollars to money” is sufficient.</p> <p>4. Oiminal Law — Sufficiency—'Prejudice.—The evidence was sufficient to support the verdict and the fact that punishment was fixed at four years’ confinement when the jury might have fixed it for any length of time from two to ten years, is not evidence of prejudice.</p>

<p>1. Counties — Fiscal Courts — Jailer’s Service as Janitor. — The fiscal court is authorized under Kentucky Statutes, section 3948, to employ the jailer as janitor to care for the public property and to vote ¡him a reasonable allowance therefor.</p> <p>2. Appeal and Error — Instructions.—The verdict of a properly instructed jury supported by sufficient evidence, no error other than the Insufficiency of the evidence being urged, will he affirmed.</p>

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

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

<p>1. Reformation of Instruments — Mistake—Burden of Proof. — The burden being on tbe party alleging a mistake in a written instrument to establish that fact, reformation will not be granted in the -absence o-f strong and most satisfactory evidence of tbe mistake.</p> <p>2. Reformation of Instruments — -Mistake—Evidence.—To entitle one to reformation the evidence by which the alleged mistake is established must be clear and convincing; where the evidence is conflicting relief will not he granted though a preponderance of the evidence supports the allegation of the mistake. A direct conflict -of testimony is conclusive against reformation.</p> <p>3. Reformation of Instruments — Mistake—Equity.—The province of a court of equity being to re-form the writing so as to express what the parties actually agree to, the mistake must be that of both parties, i. e., mutual.</p>

<p>1. Bridges — Toils—Collection of — Injunction Restraining Not Permitted. — A corporation owning and operating, under a charter granted in 1834 by an act of the legislature, a turnpike from Lexington to Richmond, this state, and also a bridge spanning the Kentucky river which, hy authority of a later act of the legislature amendatory of its charter, it erected for public travel in connection with t)he turnpike, and for its use for such travel was authorized to charge and collect tolls, in addition to those charged the 'public for the use of the turnpike, had the legal right under its charter, after disposing of the turnpike, exclusive of the bridge and its approaches, hy a sale to each of two counties of that part of it lying therein, to continue to operate the bridge and collect tolls for its use by the public; and also to sell and by deed convey to its successor, the present corporate owner, as it later did, the ■bridge and approaches together with the franchise or right to charge and collect tolls for the use of the bridge and approaches by the public; and as the defendant by its purchase of the property acquired the same right to operate the bridge and collect ■tolls of the public for its use that had been enjoyed by the former owner, the judge of the circuit court, was without authority to restrain it by the injunction granted from exercising such right.</p> <p>2. Bridges — Collection of Tolls. — Amendment of Charter. — The provisions of the charter granted the original corporate owner of the turnpike and bridge in declaring that it should have “perpetual succession, and all the privileges and franchises incident to a corporation,.and Shall be capable . . . of purchasing, taking and holding to them and their successors and assigns, and of selling, transferring and conveying in fee simple, all such lands, tenements, hereditaments and estate, real or personal, as shall be necessary to them ini the prosecution of their works,” . . . conferred upon it powers sufficiently broad to authorize the sale made by the corporation to the defendant of the 'bridge, approaches thereto and franchise or right to charge and collect tolls for the use thereof by the public, a schedule of tolls allowed to be charged, as well as authority to charge and collect them, being contained in section 2 of tbe act of 1836, amending the charter as originally granted.</p> <p>3. Bridges — Authority for Sale. — ITurther authority for the sale is conferred hy Kentucky Statutes, section 562, the requirements bf which were admittedly complied with by the defendant, as, immediately following its purchase of the bridge, appurtenances and toll franchise, it was duly incorporated as therein provided; its ownership and control of the property has been as such corporation and it has fulfilled all obligations with respect to its proper maintenance for the use of the public imposed on the orginial owner by its charter.</p> <p>4. Bridges — Operation—Sale of. — There is no provision of the free turnpike -act (Ky. Stats., see. 4748, subsection 8), which confined the ¡right of the former owner of the bridge and appurtenances to dispose of it to Madison and Fayette counties or either of them. The act does not -prevent the sale of a turnpike or other appurtenant corporate property of a turnpike 'company in fragments, nor compel it to surrender without compensation such pant of the turnpike or other corporate property as may not he purchased of it or taken from it by condemnation. Neither of the counties named, i.m the purchase mad-e by it of such part of the turnpike as it acquired from the former owner, attempted to purchase of the latter the bridge and approaches, nor did they object to its retention of the property nor its continued operation of the bridge; therefore there Was nothing in the way of its subsequent valid sale ¡to the present owner, or -of the right of the vendor to maintain and operate the .bridge as a toll bridge.</p> <p>5. Bridges — 'Collection of Tolls — 'Franchise—Taxation.—The franchise by virtue of which the defendant corporation charges and collects tolls for the use of ¡the bridge by the public, whether it be called an “incorporeal hereditament, an interest in land, an easement or right of way,” is certainly property of value and being property, it is taxable, alienable and transferable; therefore, its enjoyment by the owner cannot be prevented by injunction.</p>

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

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

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

<p>Appeal and Error — .Finding of Chancellor. — Upon a trial of exceptions to a report of commissioners dividing and. allotting lands 'among .heirs, the chancellor overruled the exceptions and confirmed the report after 'hearing all evidence offered by all the parties. In such case the judgment of the chancellor is entitled to great weight and unless the decree be against the weight of the evidence, the judgment will be affirmed,</p>

<p>1. Continuance — Affidavits for Continuance. — The inability of one of two defendants to procure, his absent son’s deposition for use as evidence in his behalf on the trial of this action, did not entitle him to a continuance thereof, as the ¡plaintiff and the other defendant, a joint tort feasor, consented that his affidavit setting • forth in detail the facts to which, it was claimed, the son would testify might be read to the jury as the deposition of the latter; and it was not made to appear from the affidavit that the benefit of the son’s testimony in 'behalf of the father could not as well be obtained in that way as by taking his deposition. As the affidavit was read to the jury as the deposition of the son, the action of the trial court in overruling the motion for the continuance was not error.</p> <p>2. Negligence — Joint Negligence — Automobiles—Peremptory Instructiins. — The appellant and his co-defendant, Hess, were held liable and a verdict in plaintiff’s behalf ¡for separate amounts in damages returned by the jury against them, for injuries he sustained resulting, as alleged in the petition, from the collision of appellant’s automobile, operated by his infant son and admitted agent, with that of Hess, operated by himself, caused by the joint and concurrent negligence of the two; and as the evidence strongly conduced to prove such inegligence, the refusal of the trial court to give, on appellant’s motion, at the conclusion of the evidence an instruction peremptorily directing the jury to find for him, was not error.</p> <p>3. Negligence — Joint Acts of Negligence. — It is a well recognized rule that while several may he 'guilty of several and distinct negligent acts, yet if their concurrent effect is to produce an estimable injury, they are all liable therefor. The comparative degree in the culpability of the two will not affect the liability of either. If both are negligent in a manner contributing to the result, they are liable jointly and severally.</p> <p>i. Negligence — Liability of Father for Infant’s Negligence. — Under the admitted facts of this case the liability of the appellant for the negligence of his infant son, shown to have contributed to appellee’s injuries, cannot be questioned.</p> <p>5. Negligence — Injury from Automobile Collision — 'Concurring Acts of Negligence. — An instruction offered by appellant which would have advised the jury, in substance, that if they believed from the evidence appellant’s car, as driven by his sou, reached the intersection of the Eastern Parkway and Preston street road before the Hess car, appellant’s car was entitled to the right of way and it should have been yielded to it by the car of Hess; and if the jury further believed from the evidence that the collision between the cars causing appellee’s injuries would not have occurred if such right of way had been yielded by Hess, they should find for appellant, was properly refused by the trial court. The instruction was based on an ordinance of the city of Louisville providing that all cars and other vehicles traveling its streets in an easterly or westerly direction shall be" given the right of way at intersections by those 'going in a northerly or southerly direction, but the ordinance was inapplicable in this case because the evidence showed that the collision did mot occur nor were appellee’s injuries received within the corporate limits of the city of Louisville. Moreover, as the evidence tended to prove that ■the collision would not have occurred but for the negligence of appellant’s son in running his car at a dangerous speed and without signals of its approach, such negligence was not and could not be excused by that of the driver of the other car in failing to yield the right of way; hence, the negligence of the two concurred in causing the collision and appellee’s injuries.</p>

<p>Motion to Grant Maintenance.</p>

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

<p>1. Damages — Inadequate and Excessive Damages — Personal Injuries. —For injuries resulting to the person.of appellee from the negligence of appellant’s agent, in running a heavy express wagon against a buggy in which, she was seated, a verdict awarding her $1,500.00 damages cannot be regarded excessive, as, according to the weight of the evidence, the injuries consisted of a hurt to the neck, wrenching of the spinal column and sprain of a hip, which confined her to her bed or room for two months, has since caused her almost constant pain, compelled her to constantly wear a brace to her back, kept her under the care of a physician ever since she was hurt and in large measure permanently impaired her ability to perform the ordinary work of a housewife.</p> <p>2. Damages — Inadequate and Excessive Damages. — In view of the evidence referred to, the amount of damages awarded appellee is so far short of excessive, as to demonstrate that the jury were not, as claimed by appellant, influenced by passion or prejudice, or even actuated by undue sympathy for her.</p>

<p>1. Mandamus — Schools and 'School Districts — Salary cf Teacher. — A school teacher may mandamus a county superintendent to compel him to pay her salary.</p> <p>2. Schools and School Districts — Teachers’ Contracts — Form of.— The state school department prescribes the form of contract with teachers throughout the state and county boards of education have no authority to alter this form. Under section 4434a, volume 3, Kentucky Statutes, contracts for the services of teachers must be signed by the chairman and secretary of a division board of tlfe division in which the teacher is employed and the teacher.</p>

<p>1. Continuance — Diligence.—In order to entitle one to a continuance for the purpose of taking additional evidence, it must appear that the party applying for the continuance has exercised reasonable diligence to obtain the testimony, and if it appear that he has had reasonable time and opportunity to take the evidence and has failed to do, so, the order of the court submitting the case will not he disturbed.</p> <p>2. Witnesses — When Cannot Testify to Chief. — A party to an action cannot testify in chief in his own behalf after he has called other witnesses.</p> <p>3. Pleading — 'Sufficiency.—Where the petition for the sale of lands avers that the property is indivisible, and this averment is not denied, and ino evidence is heard upon this subject, the judgment of the court holding the property indivisible is sufficiently sustained.</p> <p>4 Fraudulent Conveyances — Intent to Defraud Creditors. — Where one who owns a farm worth from $5,000.00 to $8,000.00, holds a mortgage on another farm worth about $2,000.00, and has several thousand dollars of money on deposit in bafflik, and is the owner of personal property valued at several hundred dollars, transfers his home farm to his son in consideration of one dollar, and gives to his son practically all of the balance of his property without consideration, except that the son is to give up his career as a business mam in the city and return to the home of the father and live with him, the creditors of the father, on proper application, may have the conveyance of the father to the son set aside and the property of the father subjected to his debts.</p>

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

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

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

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

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

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

<p>1. Pleading — Action Upon Note — ¡Failure to State Cause of Action. —A petition upon a promissory note by tbe payee, not against tbe maker but against another in possessio.ni of property of tbe maker, which does not assert a lien by attachment or otherwise against such property, or aver that the note has not been paid, or that legal processes have been exhausted against the maker, does not state a cause of action, and a demurrer thereto was properly sustained.</p> <p>2. Wills — Construction.-—-Courts are without authority to construe a will at the instance of one who manifests no rights thereunder.</p>

<p>1. Wills — Construction—Probate.—In a proceeding to probate a will containing the clause “I will C, give, demise and bequeath my •home place, where I now live, to keep care of my so long as I live,” held, that this provision, if a condition precedent, affects the devise to C only, and not the character of the instrument as a will.</p> <p>2. Wills — Construction—Probate.—The construction of a provision with reference to a devisee is not involved in the proceeding to probate the instrument as a will.</p> <p>3. Wills — Mental Capacity — Undue Influence. — Evidence herein upon question of mental capacity and undue influence held sufficient to present the case to the jury and verdict not flagrantly against the evidence.</p> <p>4. Wills — 'Mental Capacity — 'Evidence—Experts.—Error of the court in refusing to permit non-expert witnesses to testify whether in their opinion decedent had sufficient mind to know his property, relatives, &c., held not prejudicial, where the same witnesses were permitted to testify that ini their opinion decedent was of unsound mind.</p> <p>5. Wills — ¡Beneficiaries—Service.—Held not error to permit appellee, who was beneficiary, to testify that decedent promised him when he went to live with him to pay him for his services or give him the home place, appellants having already proven the same facts by two witnesses in attempting to prove undue influence.</p> <p>6. Wills — Objects of Bounty — Argument of Counsel — Instructions.— The court did not err in refusing to exclude a statement of attorney for appellee ini ¡his argument to the jury, defining “natural objects of his bounty,” there being no material variance between this definition and that given by the court in its instructions.</p>

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

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

<p>1. Nuisance — Abatement and Injunction. — A private individual is not entitled to injunctive relief to abate a public nuisance unless be bas • sustained some special injury thereby not common to the public.</p> <p>2. Nuisance — Obstruction to Sidewalk — Abatement and Injunction.— In an action by an individual seeking a mandatory injunction to compel removal of obstructions-from the sidewalk placed thereon by an abutting property owner, evidence held insufficient to show such a special injury to plaintiff’s property as would entitle him to the relief sought.</p>

<p>1. Railroads — Motion for Directed Verdict. — Decedent and five others were propelling a band car, which it is alleged had a defectivo handle, and a certain lost motion or play in the lever. Decedent's hand slipped and he fell, the car ran over him and he sustained fatal injuries. The record failing to show what caused his hands to slip the court should have sustained the company’s motion for a directed verdict.</p> <p>2. Railroads — Damages—Negligence.—Where it is sought to recover damages for negligent or wrongful acts there must be some evidence to show that decedent lost his life through defendant’s negligence. Recovery cannot be had on mere surmise or speculation as to how the injury or accident happened. There is no presumption of negligence where the injury may as reasonably be attributed to a cause that will excuse the defendant as to a cause that will subject it to liability.</p> <p>3. Negligence — How Liability Results — Burden of Proof. — Liability does not result from the mere concurrence of am accident and injury, or negligence and injury. Between the two there must be a direct connection, and while this may be shown by indirect evidence, it camnot be established by building inference upon inference. The burdem of proof is upon plaintiff and if it appears that the injury complained of may have resulted from one of two or more causes, for one of which, and not the others, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; and if the evidence leaves this to conjecture, the plaintiff has not successfully carried his burden.</p> <p>4. Master and Servant — Res Ipsa Loquitur — The doctrine of res ipsa loquitur is the presumptive' case arising in favor of a person injured against the defendant who has sole charge of the instrumentality, the defect, or breaking of which caused the injury, and while seldom applied between master and servant it is only applicable where the evidence shows that the accident is necessarily the result of defective conditions and can be explained upon no other reasonable hypothesis.</p>

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

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

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

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

<p>1. Schools and School Districts — School Taxes — Support of Colored .Schools. — In a city of the fourth class where the schools have been organized as provided by section 3588a, Kentucky Statutes, the taxable property for local taxation for educational purposes, in the white free graded common school district, consists of the property, owned hy white persons in the district, and, in addition thereto, the proportion of the corporate property, in the city, which the number of white children, within the school ages, in the city, hears to the total number of pupil children, both white and colored in the city; while the taxable property, in the colored district consists of the property, owned by colored persons, in the city, and the proportion of the corporate property, which the number of colored pupil children, hears to the total number of pupil children, both white and colored, in the city.</p> <p>2. Schools and School Districts — Support of ’Colored Schools. — In a city of the fourth class, where the schools have been organized as provided hy section 3588a, Kentucky Statutes, taxes cam not he levied upon the property of white persons, for the benefit of the colored schools, nor can a tax be levied upon the property of the colored people for the benefit of the white schools.</p> <p>3. Schools and School Districts — -Taxation for Support of Colored Schools. — In a city of the fourth class, where the schools have been organized, as provided 'by section 3588a, Kentucky Statutes, although a tax is leyied and collected for the benefit of the white district, upom that portion of the corporate property, within the city, which is subject to local taxation, only, for the benefit of the colored district, the trustees of the colored district, are not entitled to recover, the taxes thus levied and collected without authority of law, unless for the same year, a tax for a similar purpose has been levied in the colored district for the benefit of its schools.</p>

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

<p>1. Landlord and Tenant — Liens on Money From Operation of Business. — Under tlie provisions of section 2317 of the Kentucky Statutes, a landlord does not have a lien on money taken in from the operation of a business in the leased premises, since suck fund is mot produce of the premises, nor is such fund the character of personal property mentioned in that section upon which the lien attaches, such personal property meaning only tangible property.</p> <p>2. Landlord and Tenant — Lien Upon Money Derived From Business. —Neither has the landlord a lien at common law upon such fund, which would prevail over other necessary debts created by the receiver operating the business in or on the leased premises.</p> <p>3. Receivers — Distribution of Fund Among Creditors. — Where the only funds in the hands of a receiver for distribution are such as he accumulated after his' appointment, which funds are insufficient to pay’the debts, all of which were created by the receiver and which were necessary in operating the receivership, it is the duty of the receiver to pro rate such funds equally among the creditors.</p> <p>4. Receivers — Operation of Theater — Receipts.—Where a receiver operated a theater and entered into contracts with amusement companies putting on performances whereby such companies were to receive an agreed percentage of the gross ticket receipts, that percentage vests in and belongs to the company as soom as collected, and does not become a part of the assets cf the receivership for distribution.</p>

<p>1. 'Carriers — Passengers—Personal Injuries — Damages—Excessive.— Where in a passenger’s action for personal injuries the evidence showed that the injury to his foot was permanent and the injury to his back was probably permanent, that his nervous system had been greatly shocked and impaired, that his suffering had been intense and would probably continue for some time to come, and the case was one where a finding of punitive damages was properly authorized, a verdict for $6,000.00 was not excessive.</p> <p>2. Appeal and Error — Evidence—'Prejudicial Error. — In a passenger’s action for personal injuries caused by a wreck, the original admission of his evidence that there were numerous dead and injured people all around him, and of the evidence of other witnesses as to the number of people killed and injured, was not prejudicial where the evidence was subsequently excluded by the court and it was more than probable that the information conveyed by the evidence was already known to the jurors.</p> <p>3. Trial — Reception of Evidence — Order of Proof — Depositions.— 'Civil Code of Practice, section 606, subsection 3, declaring that no - person shall testify for himself, in chief, in ani ordinary action • after introducing other testimony for himself, in chief, nor in an equitable action, after taking other testimony for himself, in chief, does not disqualify a party from testifying for himself, ini chief, in an ordinary action, merely because he. has taken the depositions of other witnesses which were not read to the jury.</p>

<p>1. Appeal and Error — -Former Opinion — -Law of tlie Case. — -The former opinion is tlie law of the case as to all errors appearing on the original appeal; and is conclusive as to any points raised or that could or should have been raised on the first appeal, the evidence being substantially the same.</p> <p>2. Appeal and Error — -Former Appeal. — Finding upon an examination of the record no material difference in the evidence upon the two trials nor i-ni the instructions- given, the judgment will be affirmed.</p> <p>3. Damages- — -Excessive Damages. — An award of $6,500.00 for a broken leg, is not excessive under the facts of'the instant case, where the injured leg is shorter than the other, with a tendency to grow weaker.</p>

<p>1. Adverse Possession — Duration and Continuity of Possession.— Where a person acting under a mistake as to the true boundary line between his land and that of another, takes possession of the land of the other, believing it to he his own, up to a mistaken line, claims title to it and so holds, the holding is adverse, and if continued for the statutory period will give title by adverse possession.</p> <p>2. Quieting Title — Occupan-cy—Warranty.—Where defendant in a suit to quiet title to land, shows occupancy by herself and those under whom she claims for a period of thirty odd years with a . fixed and definite boundary, such as is susceptible of identification, and where in the deed, from plaintiff’s grantor, there is a reservation of warranty of title as to the land in dispute, the judgment of the lower court dismissing plaintiff’s petition will not he disturbed.</p>

<p>1. Municipal Corporations — Exemptions Prom Taxation. — A contract, by which a city agrees in consideratio.ru of the conveyance of land to it to forever exempt the remainder of the vendor’s property within the corporate limits from’taxation, is void and unenforeible.</p> <p>2. Municipal Corporations — Restoration of Property Received Under A Void Contract. — Where a municipal corporation receives property, real or personal, under a contract by which in consideration of the property the city agrees to pay certain specified consideration and it turns out that the contract is void and the city cannot he compelled to fulfill its obligation the party conveying or delivering to it the property may have a restoration of the same if it is within the power of the city to restore it.</p> <p>3. Municipal Corporation's — Party Delivering Property to Under Void Contract Has No Remedy If Property Cannot Be Restored. — Where a municipal corporation receives real or personal property under a void contract and it is not within the power of the city to pay the consideration agreed upon the party conveying the property is without remedy unless it can he restored to him.</p>

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

<p>1. Municipal Corporations — Street Improvement Ordinance — Plans and Specifications Need Not Be Incorporated. — Plans and specifications made by a city engineer under which streets are to be improved, if they are referred to and adopted as a part of the ordinance and are on file in the engineer’s office, need not be incorporated in the ordinance providing for the street improvements, or published as a part of the ordinance.</p> <p>2. Municipal Corporations — Street Improvements — Apportionment— Special Assessments. — Where an ordinance provides for the improvement of several streets under one' contract, it is permissible for the council to make each street a unit and levy against abutting property on each street its proportionate part of the cost of the improvement on that street.</p> <p>3. iMumdcipal Corporations — Double Taxation — Special Assessment and General Tax for Street Improvement is Not Double Taxation. —Where a city levies a 'general street improvement tax on all the property in the city to liquidate a bonded indebtedness created for the purpose of improving streets, a special assessment thereafter made on property abutting on streets, the improvement of which is provided for in an ordinance distinct from the general levy ordinance will not be double taxation. Although if it should be made to appear that the special assessment was unequal, uni-reasonable or oppressive, or that the city council, for frivolous reasons, or corrupt purposes, had imposed it, the special assessment might amount to double taxation.</p> <p>4. Municipal Corporations — When General Levy for Street Improvements and Special Assessment Therefor is Not Double Taxation.— Where a city issued boards for sewer and street improvements and used a part of the bond issue for sewer improvements, setting apart the remainder for street improvements, and used it for the purpose of paying part of the cost of a special assessment made for street improvements, no question of double taxation can arise on account of the special assessment.</p> <p>5. Municipal Corporations — Sewer and Streets Separate, Distinct. Improvements. — An ordinance providing for sewer improvements and street improvements makes provision for two distinct classes of improvement.</p>

<p>1. Mandamus — Governor—Right to Control Acts of By Mandamus or Injunction. — The Governor may be compelled by mandamus to perform specified duties enjoined uponi him by law and may also be enjoined from tbe attempted performance of acts that he has no lawful right to do.</p> <p>2. District and Prosecuting Attorneys — County Attorney — Duty to Attend to Cases for tbe State in bis County — Not Required to Leave His County. — Tbe county attorney, although under a duty to represent tbe state in bis county, is not required to leave bis county to attend to business for tbe state unless be is compensated tberefor.</p> <p>3. Attorney General — Governor—Employment of Special Counsel — ■ Purposes for Wbicb May Be Employed. — -The Governor when requested so to do by tbe attorney general -may employ special counsel in any action, proceeding, prosecution or matter affecting tbe interest of tbe Commonwealth.</p> <p>4. Mandamus — Governor—Power and Discretion of — When Court May Control. — When tbe Constitution or law of +be state points out tbe course tbe Governor must pursue, or tbe law of tbe land as expounded by tbe courts places limits upon bis authority, be is bound by them to tbe same extent as any other officer and may be compelled by mandamus or injunction to observe tbe rules laid down by tbe Constitution, statutes or tbe courts, but in matters where bis duty is not thus prescribed bis discretion will not be interfered with.</p> <p>5. Attorney and Client — Governor—When Governor May Cancel Contract With Attorneys. — Where attorneys have been employed by tbe Governor to represent tbe state, he may discharge them and substitute others in their place upon tbe same terms as could a private client.</p> <p>6. Attorney and Client — Discharge of Attorney and Substitution of Others — Conditions Imposed. — A client may at any time discharge bis attorneys and substitute others in their place, but if they- have performed services under the contract they are entitled to'be compensated tberefor.</p> <p>7. Attorney and Client — Conditions Upon Which Client May Discharge His Attorneys and Substitute Others. — Where no suit bas been brought by tbe attorney, tbe client may discharge him upon notice at any time, but if suit bas been brought by tbe attorney,a client can only discharge him upon notice and motion in tbe court in wbicb tbe suit is pending and with tbe consent of tbe court. In such a case -the court should put tbe client upon terms to pay or secure tbe compensation to wbicb tbe attorney is entitled for services rendered.</p> <p>8. States — Action Against — What Is Not. — Where attorneys have-been employed by tbe Governor to represent tbe state, a suit by them against tbe auditor to have a warrant for tbe compensation towbicb they are entitled under tbe contract or entitled, if discharged by tbe Governor, is not a suit against tbe state.</p> <p>9. Attorney and Client — Compensation of Attorney — Measure of When Discharged Before Termination of Suit. — Where an attorney is discharged without cause, after he has performed services under a contract, he will he entitled to recover compensation to the extent of the value of the services rendered.</p>

<p>1. Judgment— Res Judicata — Judgment on Demurrer. — If the demurrer be sustained because the facts were defectively pleaded, or some essential allegation was omitted, the judgment on the demurrer is not a bar to a subsequent action on a petition -which supplies the defects which were fatal to the petition in the first action, hut if the facts are well pleaded in the first petition, the judgment on the demurrer is in effect a decision upon the merits of those facts and is a bar to another suit upon substantially the same facts.</p> <p>2. Pleading — Petition—-Sufficiency—Judgment—-Res Judicata — -Judgment on demu-rrer. — In -an action by a 'corporation to enjoin a railroad company and others from, extending a spur track 6n plaintiff’s premises across the street for the use -and benefit of another company, the allegations of a petition in a former action for the same -relief considered and held that the facts were well pleaded, so as to make the judgment on the demurrer in the first action a bar to the second action based on the same facts.</p>

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

<p>1. Principal and Agent — Identity of Principal — Parol Proof — Fictitious Name. — It is competent to identify by parol proof either a disclosed or an undisclosed principal so as to charge him as a party to a contract executed exclusively in the name of his agent, and a fortiori is it proper to show that one appropriating the name of another or using a fictitious name intended to become personally liable or bound thereby to the other party to the contract; but this rule will not apply where one seeking to charge a known but undisclosed principal has unreasonably delayed action until such principal has changed his attitude, nor will it apply where the proof shows that credit was given, exclusively to the agent, nor to negotiable instruments.</p> <p>2. Contracts — Items of Charges. — Where a contract provided that plaintiff should receive for the work agreed to be done by him the cost price plus an agreed profit, the. salary of .plaintiff’s superintendent for the time he devotes exclusively to the work, as well as the premium on an indemnity policy taken by plaintiff for the protection of its eanployees while engaged in the work are legitimate items of cost, especially in view of the evidence of a custom to make such charges.</p> <p>3. Contracts — Construction of. — Where a contract provided for pay for extra hauling of material “by wagon when necessary,” the contractor is not required by the word “necessary” to hau-l from the nearest point, but he may take into consideration the difficulties of transportation .by wagon, and use that route which is the more practical and expedient, although the distance may be greater.</p> <p>4. Contracts — Furnishing Material by Contractor. — When defendant agreed with a contractor to furnish certain material for which the latter is to receive pay .only for placing it in the structure, any cost .incurred by the contractor in shaping the material to fit the structure may be charged for by the contractor</p>

<p>Bills and Notes — Payment—Finding of Chancellory-Evidence— Sufficiency. — In an action to -recover on two notos, evidence considered and held no.t to sustain the plea of payment, hut toshow a balance 'due on. each note'.</p>

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

<p>1. Deeds — Not Subject to Attack Because of Existence of Will.— Where by an oral compact between two aged unmarried sisters residing upon land owned by one of them, which adjoined land owned by the other, they mutually agreed to jointly use and enjoy the two tracts as if they were common property, and that each would make a will devising to the other an estate for life in her land, with remainder in fee to the children of a brother; the due execution of a will by each of the sisters in pursuance of such oral agreement, did not affect the validity of a sale and conveyance subsequently made by one of them of her land to a .third party. Consequently, it was not error for the chancellor to adjudge, in an action to set aside the deed to the purchaser of the land brought by the devisees in remainder under the will, after the death of the grantor and the probating of her will, that the conveyance was not subject to attack because of the existence of the will at the time it was made, although that instrument had been executed in pursuance of the previous oral agreement between the sisters.</p> <p>2. Wills — Void as to Property Not Owned by Testatrix at Death. — As the will of the testatrix did not take effect' until her death, any devise it may have made of real estate which, though owned by her at the time of its execution, she did not own at the time of her death, was void.</p> <p>3. Deeds — Action to Set Aside — Mental Capacity- — Finding of Chancellor. — Where a deed is attacked on. the ground that the grantor was without sufficient mental capacity to make the conveyance, or that it was obtained by fraud on the part of the grantee; and the evidence relating to these issues is, as appears from the record on this appeal, so conflicting as to leave the Court of Appeals in doubt respecting the truth of the matter, its rule is not to disturb the chancellor’s findings of fact, which, in this case, were to the effect that neither want of capacity in the grantor nor fraud on the part of the grantee was established by’the evidence.</p> <p>4. Deeds — Action to Set Aside — Dismissal of Petition Not Error.— Where, as in this case, the grantee in the deed from the testatrix of the will had sold and by deed conveyed the land to another, who by answer as a defendant in the action of the remaindermen, denied all knowledge of the facts alleged in the petition as constituting the grounds of attack upon the first deed, and averred his good faith in purchasing the land of the grantee therein; to authorize the setting aside of the deed to the second grantee, it was necessary for the plaintiffs to establish by the evidence; (1) that the first deed was obtained by fraud, or that the grantor therein was not competent to make it; (2) that such fraud or incompetence was known to the grantee in the second deed when he purchased the land, or that he was at that time in possession of such facts as upon reasonable inquiry would have informed him of the vice in the first deed. As the evidence bearing on the first of these issues was conflicting, and there was no material evidence on the second, the dismissal of the plaintiffs’ petition was not error.</p>

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

<p>1. Insurance — Change of Beneficiaries. — The insured in a life insurance policy which, gives him the right to change the beneficiary may do so without the consent of the named beneficiary, as the latter has no vested interest in the policy before the death of the insured.</p> <p>2. Contribution — Devise to One After Payment of Debts. — A devise of property made to one after the payment of debts which are made a charge upon the devised property is not entitled to contribution.</p> <p>3. Subrogation — What One Must Do to Invoke Principle of. — To be entitled to invoke the principle of subrogation one must either advance money to the discharge of the obligation of a debtor, or he must be the owner of property which is subjected to the payment of another’s deibt, regardless of whatever other conditions ■are essential ito the night of subr'ogaltion.</p> <p>4. Subrogation — Devisee of Property Which Will Charges With Debt. —A devise of property which the will charges with the payment of a debt cannot be subrogated to the rights of creditors against the general assets of the estate, because of the payment of the debt to protect his interest, or the subjection of the property to the payment of the debt.</p>

<p>1. Trusts — Limitation of Actions. — A father, who was a guardian of his children, purchased a tract of land, paying therefor $1,200.00, belonging to his children and agreeing himself to pay the balance of the purchase money, amounting to $800.00, upon payment of which the vendor was to make a deed. Subsequently, the vendor conveyed the land to the father individually; who stated that he wanted to take title to himself in order that he might sell the land. Thereafter, he recognized the trust until his death: Held, that he held the title to the land both as a joint owner and as • a trustee for his wards, and never having brought home' ter his wards notice of the fact that his holding was adverse, or that the trust had been repudiated, but having throughout his life recognized the trust at various times and in various ways, the statute of limitations was never set in motion, and was not available as a defense to an action by his wards to recover the land.</p> <p>2. Descent and Distribution- — Source of Title as Affecting Descent.— Where a father held title to twelve-twentieths of a tract of land in trust for his four children, their interest having been purchased with pension money which he had in his hands as guardian, the interest of a child who died in infancy without issue passed to the father, the child’s mother being dead, and the land not having been inherited from her.</p> <p>3. Trusts — Limitation of Actions — Action to Recover Land. — Any claim by the wards of title to the land, based on the fact that their father paid for his portion of the land by the sale of timber therefrom, cannot be sustained where it does not appear that he used more than his part of the timber for that purpose, and it does-appear that the claim has long since been barred by limitation.</p>

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

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

<p>1. Damages — Failure to Sustain Cause of Action For. — Where dam-' ages were sought for interference with the egress and ingress to lots in a suburban tract by the construction of a railroad across dedicated streets, and the proof shows that where the streets were crossed the defendant had constructed underpasses and new streets affording as good if not better means of ingress and egress to the lots, plaintiff failed to sustain her cause of action.</p> <p>2. Covenants — Restriction as to Use of Lots. — An alleged covenant restriction as to the use of defendant’s lots in a suburban tract was not sustained by the averment that such restriction had been adopted as a custom or plan for the benefit of all lots therein by the original owner of the subdivision, but which restriction was not alleged or proven to have been incorporated in any deed or agreement under which defendant held title to its lots.</p>

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

<p>1. Vendor and Purchaser — Lease—Bona Fide Purchaser — Statutes. Under section 494, Kentucky Statutes, an oil and gas lease for a longer time than five years is not good against a purchaser for a valuable consideration without notice thereof, unless acknowledged or proved and lodged for record in the proper office.</p> <p>2. Vendor and Purchaser — Bona Fide Purchaser. — A purchaser of property takes it subject to a prior equity if he acquires notice thereof at any time before payment of the consideration.</p> <p>2. Vendor and Purchaser — Bona Fide Purchaser — Lessee.—Where the consideration for an oil and gas lease was $1.00, the payment of $200.00 to perfect the lessor’s title, and a certain royalty on the oil and gas, the lessee, who at the time of acquiring notice of a prior lease had not paid the $200.00, or begun development, or expended any money for that purpose, but had paid only $1.00, even though a purchaser within the meaning of section 494, Kentucky Statutes, a question not decided, was not a purchaser for ' a valuable consideration.</p>

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

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

<p>Logs and Logging — Contract for Delivery of Timber. — A made n contract with B for timber. B delivered not only his own timber but also timber owned by B and C as partners, with C’s knowledge and consent, and was paid by A under the -terms of his contract for all timber delivered. B and C seek to recover from A. on a separate accounting for the partnership timber. Evidence-examined and held that the partnership had no contract with or-claim against A.</p>

<p>1. Libel and Slander — When Publication Per Se Libelous — Where the language is plain and unambiguous as to its meaning and as to the person referred to, it is a question of law as to whether a defamatory publication is per se slanderous or libelous, and because of its greater publicity and being more enduring in form, a publication will be per se libelous when.it might not be so if merely spoken.</p> <p>2. Libel and Slander — When Publication Per se Libelous. — Where the effect of a publication in a newspaper is to subject one to contempt and ridicule, and to charge him with being guilty of unprofessional conduct as an attorney by soliciting clients and representing persons in litigation without authority, such publication is per se libelous.</p> <p>3. Libel and Slander — Defenses—Qualified Privilege. — The defendant in a libel or slander suit when he would rely in defense upon a qualified privilege must admit that he spoke or published the words, or words of similar import.</p> <p>4. Libel and Slander — Defenses—Qualified Privilege. — The defendant loses his right to rely' on qualified privilege if he knows the publication to be false, or il' false he does not bona fide believe its truth, or if he exceeds the privilege or circulates the publication with actual malice against plaintiff.</p> <p>5. Libel and Slander — When Publication Per Se Libelous. — Where a publication is per se libelous and is false, there can be no privilege where defendant denies the publication. But where under the same circumstances he admits the publication the privilege is available as a defense, provided he acted in good faith without malice and without exceeding the privilege.</p> <p>6. Libel and Slander — When Publication Per Se Libelous. — When the publication is per se libelous, it is presumed to be made maliciously and with the intention that its language conveys; in such cases it is no defense to deny malice or the intention of which the language is susceptible, and it is error to submit such issues to the jury.</p> <p>7. Libel and Slander — Qualified Privilege — Instructions.—Where the restrictions upon the right of'qualified privilege are incorporated in an instruction, a converse one must contain the same restrictions.</p> <p>S. Libel and Slander — instructions.—It is error to submit to the jury in an instruction the question of privilege, where the language is plain and unambiguous, since that is a question of law for the court, and especially is this true where the court in other instructions treated the occasion as being a privileged one.</p>

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

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

<p>1. Corporations — Making of Contracts by President of. — A president of a corporation is not inherently authorized to make contracts on behalf of the corporation.</p> <p>2. Corporations — Governing Authority. — The govérning, power of a corporation is vested in its board of directors, who must act as a body, to bind the corporation.</p> <p>3. Corporations — Authority of Officer to Act — How Governed. — The authority of an officer of a corporation to act for it, is governed by the general laws, relating to principal and agent, and hence before a‘corporation is bound by an act of one of its officers, it must be shown, that he was vested with express authority, by the articles of incorporation, by-laws or'resolutions, or some act of the board of directors, or- else he, is clothed with apparent authority, from the manner, in which the board of directors has permitted him to transact its business of a similar character.</p> <p>4. Corporations — Contracts on Behalf of — Ratification.—When an unauthorized contract has been made in behalf óf a corporation, and its board of directors, with individual knowledge of it, carries out the contract, without repudiating it, and it is beneficial to the corporation, it will be deemed a ratification of the contract, and that the corporation has accepted the burdens of the contract, along with the benefits of it, and therefore a ratification of it.</p> <p>5. Corporations — Ratification of Contract — Acquiescence.—The board of directors of a corporation do not ratify an unauthorized contract made in its behalf, by acquiescence, unless they have full knowledge of the contract, and with such knowledge, accept its benefits.</p>