Volume 187 — Kentucky Reports

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

<p>1. " Gifts — iCausa Mortis — 'Symbolic Delivery. — A gift causa mortis may be perfected by a symbolical delivery without an actual delivery, if it clearly appear that the donor intended to make a gift.</p> <p>2. Gifts — 'Causa Mortis — Parol Trust. — .Where an old lady in feeble health told her sister to go to a certain bureau drawer, take out and bring to her a .package containing money, and after counting the money in the presence of the sister, again tied it up in a package, delivered it to the sister and told her to put it in a clothes press which stood immediately behind the chair of the invalid and to lock the clothes press and to keep the key until after the death of the donor, and then to take the money and give it to a named relative of both the donor and her sister, and the money remained in the clothes press until after the death of the donor, the delivery of the key to the sister, and her retention threof with the donor’s consent until after the death of donor was a symbolical delivery of the money in the clothes press to the sister for the use and benefit of the donee and was enforceable either as a gift causa mortis or a .parol trust.</p> <p>3, Wills- — Evidence—Introduction of Letter. — A letter found a mows the valuable papers of a testatrix with the name of her brother signed thereto, and which she regarded as the letter of her brother* may be introduced as evidence upon the trial of a will case to show why the testatrix was not disposed-to give any of her .property to her brother or to his children, even though it is not established by testimony that the letter in question was written by the brother, or that it was in his handwriting.</p>

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

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

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

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

<p>1. Master and. Servant — Appliances—Duty of Master to Furnish.— -The duty of the master is one of ordinary care. A master is not required to furnish the servant absolutely safe appliances with ■which to work, the full measure of his duty being discharged when he exercises ordinary care to furnish appliances which are reasonably safe.</p> <p>2. Master and Servant — Defective Appliances — -Proximate Cause— Burden of Proof. — The burden is on the servant to show that the offending instrumentality was defective, that the defective condition was the proximate cause of the injury; that the employer had knowledge or by the exercise of ordinary care might have had knowledge of the peril to which the servant was subjected.</p> <p>3. Master and Servant — Injury—Result of Master’s Neglect. — To authorize a recovery in behalf of the servant he must show that his injury was caused by some neglect of the master, or some other servant of the master which is imputed to him. It is not sufficient to show merely that plaintiff sustained the injury while in the master’s service.</p> <p>4. Master and Servant — Negligence.—Where circumstances attend-1 ing an injury show nothing as to the real cause, but leave it to conjecture whether it was the master’s negligence, the fault of ■the injured servant or an unaccountable accident there is a failure of «roof.</p>

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

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

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

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

<p>Corporations — Contract of President for Sale of Real Estate. — A president of a corporation who, without authority from the company, enters into a contract with an agent to pay him a commission if he brings about a sale of real property of the corporation, and the agent finds a buyer and makes the trade, and the corporation refuses to convey, the president is liable to the agent for the commissions earned, although the president may have acted in good faith and in the belief that he had authority to act for the corporation in the sale of its real property.</p>

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

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

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

<p>1. Elections — 'Pleadings—Failure to State Cause of Action. — A pleading which alleges an irregularity in an order for a registration of voters, in a city of the fourth class, for an election, held in the county, which does not state facts which show that the irregularity in any way affected the result of the election, does not state a cause of action, in an action to declare an election ■ invalid.</p> <p>2. Elections — Special Election — How Ordered. — The portion of section 4307 Kentucky Statutes, which provides that a special election held under thgt section, shall be ordered to be held “upon some day named in the petition,” is not mandatory, but a provision for orderly procedure, and is directory, and the failure of the county court to order the election held “upon some day named ■in the petition,” will not invalidate the election, if it is ordered to be held upon a day otherwise within the limits prescribed ■by the statute, and is otherwise regularly and legally held.</p> <p>3. Trial — Issue.—The issue intended by section 367, sub-section 5, of the Civil Code, is an issue of fact and not of law and where the issue is one of law, and in the absence of an issue of fact, the section has no application.</p> <p>4. Appeal and Error — Reversal of Judgment. — As required by section 756, Civil Code, a judgment will not be reversed on account of error, which does not substantially prejudice the rights of the complaining party.</p>

<p>1. Vendor and Purchaser — Quantity, Boundaries and Location. — An attempt by a vendee to convey more property than embraced in his deed is futile, because in the absence of other conveyances he could not in any wise strengthen or enlarge the title he has received. ,</p> <p>3. Estoppel — Questions Judicially Settled.- — A question which has been judicially determined by a court of competent jurisdiction is conclusively settled so far as it relates to the party in suit or any one in privity with him, and is an estoppel to litigating in future actions such questions between the parties and their privies.</p> <p>?. Damages — Action for Value of Timber Taken. — In a suit to recover the value of timber taken from a described boundary, upon examination -of the evidence it appearing that plaintiff had both a record and possessory title to the land involved, it was entitled to a judgment for tne timber taken.</p> <p>4. Damages — Action for Value of Timber Taken. — Where parties to a suit haye agreed among themselves as to the measure of damages applicable to certain logs taken from plaintiff’s property, the parties will be relegated to the value of the logs as fixed in said agreement and plaintiff’s recovery will be measured accordingly.</p>

<p>1. Statutes — Construction.—The rule that statutes should be construed in pari materia is one of construction only, and should not be applied where the intention of the legislature is clear and free from doubt.</p> <p>2. Statutes — Construction of Statutes Exempting Property from Taxation. — Statutes exempting property from taxation, or having that effect, should be strictly construed, and the exemption not allowed unless it clearly and convincingly appears to have been the intention of the legislature.</p> <p>3. Statutes — 'Construction of Statute Exempting Property from Taxation. — Tlie proviso to section 6, chapter 11, Acts Special Session 1917 (being a part of section 4019a-12 of vol. 3 Kentucky Statutes) exempting property mentioned in the section from retroactive assessment, if assessed in the year 1917, has no application to the assessment of omitted hank deposits, although such deposits might for some purpose be construed as accounts and credits.</p>

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

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

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

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

<p>1. Deeds — Construction—Intention of Grantor. — Deeds should be construed so as to effectuate the intention of the grantor as gathered from the whole instrument, and where it appears that the grantor intended to vest in the grantee a less estate than the fee, his purpose will not be defeated by any technical rule of construction but will be carried into effect.</p> <p>2. Deeds — Construction.—A deed construed and held to convey to the grantee a life estate with remainder to his children, but in case the- grantee had no children, the property, after the death of the grantee’s wife, was to go to the daughter of the grantor or her children.</p> <p>3. Deeds — Construction—Remainder—Adopted ■ Person. — Where a conveyance is made by one, who is a stranger to the adoption, to a person for life with remainder to his children, but in case he lias no children, then to others, the word “children” does not include an adopted child unless the language of the instrument makes it olear that it was so intended. '</p>

<p>Municipal Corporations — Personal Injury — Sidewalks—Trial—Instructions. — In an action for damages for personal injuries alleged to have been caused by a defective lug attached to the covering of a catch basin, it was not error, in view of evidence to the effect that the defective lug could not have caused the covering to tilt, that boys, who were in the habit of removing the covering, were seen playing about the catch basin, and that the covering was in place a few minutes before the accident, to give the following instruction: “Or if you believe from the evidence that the lid was displaced from its ordinary resting place immediately before plaintiff stepped upon it and it was in'said way caused to tilt and plaintiff was in such manner caused to be injured, then in either or any of said events you will find a verdict for defendant.”</p>

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

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

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

<p>1. Escheat — -Property Subject to Escheat.- — -A corporation cannot acquire and hold real property for a longer period than five years unless for a necessary or proper purpose in carrying on its business.</p> <p>2. -Escheat — Good Faith of 'Corporation.- — -Where a corporation acquired real property with the good faith purpose of employing it for a necessary or proper purpose in carrying on its business and continues to so hold said property, the five year period fixed by the statutes in which the corporation may dispose of the surplus real property has no application.</p> <p>3. Escheat — Property Held toy Bank to Rent or Sell. — A banking institution which acquires more real estate than is necessary or proper for its purposes in carrying on its business and which it declares by its orders entered on its minute book at the time of the purchase, it owns and holds for the purpose of renting or selling, as to the board may seem best, may own and hold the same not exceeding five years without subjecting the same to escheat to the Commonwealth, under sections 192 of the Constitution and 567 of the Kentucky Statutes.</p> <p>4. Escheat — Property Subject to Escheat. — Whether real property held toy a corporation is subject to escheat after the lapse of five years, largely depends upon the intention of the corporation in acquiring the property and its purpose while it holds it to use the property for some necessary or- proper purpose in carrying on its business; and if the corporation becomes the owner of the property with the purpose to resell or. rent the same and continues to hold it for more than five years without employing it or intending to employ it for some necessary or proper purpose in connection with its banking business, it is subject to escheat to the Commonwealth.</p>

<p>1. Assignments — Equitable Assignment. — The delivery of a ' certificate, which was held by one as the evidence of his interest in a partnership, to a creditor, for the purpose of securing the payment of a debt, which he owed such creditor, and with the purpose and intention of a present appropriation of the interest in the partnership to the payment of such debt, is an equitable assignment of the .interest in the partnership, for the purpose intended, although by parol.</p> <p>2. Assignments — Equitable Assignment. — Any act, which makes a present appropriation of a fund, although not to be enjoyed until in the future, is an equitable assignment.</p> <p>3. Assignments — Rights of. Lien Creditors. — An assignee for creditors, stands in the shoes of the insolvent, and is not a purchaser for value, and hence, can not claim the property, except subject to the rights of the lien creditors.</p> <p>4. Partnership — Execution of Accommodation Paper for Another— Implied Powers. — The execution of accommodation notes for another, or the acceptance or indorsement of accommodation paper for another, is not within the implied powers of a partner, and he is not authorized to execute the notes of the partnership for the accommodation of another, unless the partnership contract . gives him such authority, or he is specially authorized by the partners.</p> <p>5. Partnership — Execution of Accommodation Paper by Managing Member — Liability.—Where the managing member of a commercial partnership has customarily executed the notes of the partnership in the transaction of. its business, and executés an accommodation negotiable note in the name of, the partnership for another, and the accommodation character of the instrument does not appear upon its face, it is a valid liability of the partnership in the hands of a bona fide holder, without notice of the infirmity arising from its unauthorized execution.</p> <p>6. Partnership — Liability for Accommodation Paper. — Where a trading partnership becomes liable for an accommodation note, executed by one partner, for the partnership, without authority so to do, by its passing into the hands of a bon'a fide holder, without notice of the accommodation character of the signature, and the partnership is required to pay it, the partners, who did not consent to the execution of the paper, and were without knowledge o'f it, have a superior lien upon the interests of the partner, who executed the note', and upon the interests of the one, who received the proceeds, upon a settlement of the partnership, to recoup them for their loss, in the partnership having to pay it.</p> <p>7. Partnerhsip — Partnership Debts — Liens—Equity.—A partner has an equitable right to require the partnership property to be applied to the payment of the partnership debts, and has a lien upon the shares of the other partners, for any balance, that may be due him, or claim arising out of -the partnership business, but, has no lien for a balance or claim, which arises out of a transaction outside the scope of the partnership purposes and business.</p> <p>8. Equity — Liability for Negligence. — Between even two innocent persons, equity will place a loss upon the one whose acts or negligence caused the loss.</p> <p>9. Partnership — Bankruptcy—Assignment.—The bankruptcy or assignment by a partner for the benefit of creditors, will work a dissolution of the partnership.</p> <p>10. Partnership — Death of Partner — Dissolution.—Death of a partner will work a dissolution of a partnership, unless the deceased partner has provided by will, or unless the partnership contract provides for the continuance of the partnership.</p> <p>11. Partnership — Assignment toy Partner as Security for Debt. — An assignment by a partner of his interests in the partnership, as the security for the payment of a debt does not work a dissolution of* a partnership where it is contemplated, that he is to continue in interest and authority in the partnership.</p> <p>12. Partnership' — Assignment for Creditors — Dissolution.—Where the partnership contract provides for a continuance of the partnership, and one of the partners makes a general assignment for creditors, it works a dissolution of the partnership, in spite of the contract, to the extent of a disposition of the interest of the assigned partner, and a settlement of the partnership affairs, to that time, and of claims connected with the assigned interest.</p>

<p>1. Executors and Administrators — 'Services1—'Commissions).—Under section 3883 Kentucky Statutes an administrator may have an allowance not to exceed fire per cent of tbe total amount received and disbursed, but if be has performed no special or extra service the allowance may be less than five per cent, provided it is a reasonable compensation for the services actually performed.</p> <p>2. Executors and Administrators — Compromise—Consent Judgment. —Where a compromise is made by an administrator, or with his knowledge and consent, and the agreed judgment fixes the amount to be paid, and same is duly entered without objection from the administrator, he will not be heard to complain that he did not consent to the judgment, after a lapse of two years.</p> <p>3. Executors and Administrators — Compromise—(Laches—Bar.— Where a compromise is effected with the knowledge and consent of the administrator, and the amount recovered is received and disbursed without objection from him, a delay of two years on his part is such laches as will bar his claim for additional compensation.</p>

<p>1. Indictment and Information — Description—'Sufficiency.—Tbe omission of tbe word, “willful” in tbe description of an offense, under section 1166, Kentucky Statutes, in tbe accusative portion of tbe indictment, and where tbe crime charged, is “malicious shooting and wounding another, with tbe intent to kill him,” and tbe descriptive portion of tbe indictment alleges, that it was “willfully and maliciously” done, does not render the indictment insufficient.</p> <p>2. Indictment and Information — Sufficiency.—Under section 1166, Kentucky Statutes, in an indictment for the crime of willfully and maliciously shooting at and wounding another person, with the intent to kill such other, it is not necessary for the indictment to allege that the shooting was “feloniously” done.</p> <p>3. Criminal Law — Continuance—Affidavits.—Where a motion for a continuance is based upon the absence of witnesses, in a criminal prosecution, and the attorney for the Commonwealth, agrees, that the affidavit may be read as the deposition of the absent witnesses, and the accused fails to offer to read the affidavit in presenting his evidence to the jury, it is considered, that he has waived the introduction of the evidence of such witnesses. '</p> <p>4. Criminal Law — Examination of Witnesses — Appeal and Error.— Where a witness is asked a question, and an objection is sustained to the offered evidence, but, no avowal is made as to what answer the witness, if permitted, would give, it is not a reversible error, as this court clan not conjecture what the answer would be.</p> <p>5. Criminal Law — Trial—Admonition.—It is not an error for the court to fail to admonish a jury as to the purpose for which evidence may be considered, which is introduced to impeach a witness by contradiction, when the complaining party fails to object to the evidence, or to move the court to admonish the jury, in regard to it.</p> <p>6. Criminal Law — -Instructions.—An instruction, which requires the jury to believe more than is necessary to justify a conviction, is not prejudicial to the accused.</p>

<p>-1. Carriers — Injury to Passenger — Cinder from Locomotive — Negligence. — A carrier is liable for injury to a passenger from a cinder entering his eye through an open door, while the train was going ínrougb a tunnel, where the brakeman left the door open just as the train entered the tunnel.</p> <p>2. Evidence — Hearsay.—One suing for personal injuries may not testify as to what his doctor said to him relative to the cause of his injury.</p> <p>3. Appeal and Error — Harmless Error — Admission of Evidence.— Error in admitting incompetent evidence was not prejudicial where the same facts were shown by competent testimony.</p>

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

<p>1. Husband and Wife — Settlement of Property Rights — Separation.— In a settlement of their property rights, made between husband and wife in contemplation of an immediate separation and his be.coming a permanent resident of another state, to which he shortly thereafter removed, he by deed conveyed her a house and ■lot to which he held the title and which for many years had been their home, and she by deed conveyed' him a house and lot the title to which was in her name; but as the husband was rendered insolvent by the conveyance to the wife and the property he conveyed her was of far greater value than the property she conveyed him, the conveyance to her was in law a voluntary one and, therefore, fraudulent and void as to antecedent and then existing debts owing by the husband, to the extent of the difference between the greater market value of the property he conveyeed the wife and that of the property she conveyed him.</p> <p>2. Husband and Wife — 'Conveyance to Wife — Action to Set Aside.— In an action by a bank, as creditor of the husband, to set aside the deed from the latter to his wife and subject the property thereby conveyed to its debt, the circuit court properly granted the relief asked by the creditor to the extent of adjudging the property subject to its debt, directing its sale and application of the proceeds; tp the satisfaction thereof, after paying therefrom for the benefit of the wife $1,000.00, in lieu of her homestead right in the property; but erred in not further adjudging that the wife be also paid out of the proceeds of the property, before applying any part thereof to the debt of the creditor, $450.00, the admitted value of the house and lot she conveyed her husband and the latter later conveyed to a third party. This amount the wife was entitled to receive as the evidence failed to prove any knowledge on her part at the time of the conveyances between them of her husband’s insolvency, or his intent to defraud his creditors.</p> <p>3. Fraudulent Conveyances' — Insolvency—Husband and Wife. — As the evidence strongly conduced to prove that the conveyance by the husband to & third party, his father-in-law, of the house and lot deeded him by his wife, was made with the intent to defraud his creditors; and, also, as strongly conduced to prove that the grantee at the time of the conveyance knew of his insolvency, likewise of his indebtedness to the bank and intent, by means of the conveyance to defraud his creditors, the judgment of the circuit court setting aside this deed as fraudulent and subjecting the property thereby conveyed to the bank’s debt, is free-of error.</p>

<p>Appeal and Error — Transcript—Time to File. — Under section 336 of Criminal Code tbe transcript must be filed in tbe clerk’s office of tbis court witbin sixty days, unless further time is given by tbe court, but if witbin tbe sixty days, tbe motion for time accompanied by sufficient reasons is filed in tbe clerk’s office of tbis court, it will bave tbe same effect as if filed in court on that day, and may be acted on when tbe court is in session.</p>

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

<p>1. Criminal Law — Trial—'Self-Defense1—Instructions.—On a prosecution for malicious wounding witb a deadly weapon with intent to kill, evidence considered and beld that tbe court did not err in refusing to give an instruction on self-defense.</p> <p>2. Criminal' Law — Assault witb Intent to Kill — 'Deadly Weapon— When Question for Court or Jury. — Where the weapon is of such character as to admit of but one conclusion in that respect, the question whether or not it is deadly, within the meaning of the statute, is one of law, but where the weapon employed is such that its deadly character depends upon the manner and' circumstances of its use, the question is one of fact for the jury.</p> <p>3. Criminal Law — Assault With-Intent to Kill — Deadly Weapon— Question for Jury. — Whether a rock about the size of a man’s hand and weighing about a pound, used by the defendant in striking the prosecuting witness who was about thirty feet away, was a deadly weapon, was a question for the jury.</p> <p>4. Criminal Law — Trial—Instructions.—An instruction that if the defendant “struck and wounded S with a rock, a deadly weapon,” was erroneous in assuming that the rock was a deadly weapon.</p>

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

<p>1. Damages — Punitive Damages — Instructions.—To authorize an instruction on punitive damages it must be shown that defendant acted wantonly, recklessly, oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations.</p> <p>2. Damages — Assault Upon, Passenger in Car — Submission to Jury.— Where a passenger in a Pullman car testifies that she was assaulted or attacked on three different occasions while in her berth, and that she attempted to notify the conductor at the time each of these attacks took place, and it is admitted that she did report at least the first attack, the plaintiff made out a ■case for the jury and the court did not err in so submitting it.</p> <p>8. Carriers — Sleeping Car Company — Care of Passengers. — A sleeping car company is obligated to keep a reasonable watch over sleeping passengers and their property.</p> <p>4. Damages — -Action for Assault Upon Passenger in Car — Evidence. —Where the petition alleged plaintiff had been attacked or assaulted in her berth, in the absence of other allegations it was error for the court to admit evidence of any other acts or facts not connected with or incident to those charged in the petition.</p> <p>5. Negligence — Pleading.-—«Negligence may be averred in general term's and under such an allegation plaintiff may show any specific acts of negligence, but a plaintiff undertaking to specifically set forth the negligent acts complained of, can not prove or rely upon others.</p> <p>6. Trial — Argument of Counsel. — A great latitude is and should be allowed counsel in making arguments to the jury, but counsel should be careful in the presentation of their causes to confine themselves to facts brought out in the evidence, or to reasonable deductions therefrom; beyond this counsel can not safely go.</p>

<p>1. Appeal and Error — 'Mandate—New Trial. — Where a mandate of ^ the appellate court issued pursuant to an opinion on a former appeal was not filed in the lower court, but the parties entered into a second trial without objection, and the trial proceeded to a judgment, motion for a new trial was made and overruled, •the parties will be held to have waived the filing of the mandate.</p> <p>2. Appeal and Error — Mandate—Second Trial. — Where the records of the appellate court show that the mandate was issued it should have been filed before a retrial, but the-parties having, without’ objection, entered into a second trial, which- proceeded to judgment, it is too late to complain of the alleged error for the first time in this court.</p> <p>3. Adverse Possession — Trial—Instructions.—It is preferable in an instruction defining adverse possession to use the words “actual, open, notorious, continuous, adverse and'peaceable,” but a failure to include the word “peaceable” is not fatal to the instruction, especially where in a former opinion it was held that defendant was in possession of the land involved and the evidence .failed to show plaintiff was in the actual possession of any part <5f the boundary.</p> <p>4. Appeal and Error — Law of the Case. — The opinion of the court on the first appeal is binding on the parties, the courts and of subsequent proceedings as to issues upon which ,the evidence is substantially the same.</p>

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

<p>1. Process — Public Corporation — Effect of Failure of Person Served With to Make Defense. — In a suit against a branch of tbe state government tbe public body sued will not be estopped to set aside a default judgment, by tbe negligent failure of tbe person served to make defense.</p> <p>2. Judgment — Vacation of — Effect of Party 'Served to Make Defense. —¡Where judgment by default went against a public corporation, because tbe person served With process negligently failed to make defense, tbe public being affected, may on petition have judgment set aside.</p> <p>3. Officers — Public—Failure of Officers Served to Make Defense — ■When a public officer negligently or for other cause Jails to make defense to a suit, brought against a public corporation, tbe public corporation may in a suit for that purpose under 518 of Code, have a default judgment set aside.</p>

<p>1. Pleading — Petition.—Assumed Name — Doing Business Under — Not Necessary to Aver. — Where a person is doing business under an assumed name or style, it is not necessary that he should aver in his petition, in a contract case that he had complied with section 199b of the Kentucky Statutes.</p> <p>2. Contracts — 'Suit for Breach — Averment That Plaintiff! Was Ready, Able and Willing. — -In a suit for breach of contract it is necessary to allege in terms or- in substance that the plaintiff was ready, able and willing to perform his part.</p>

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

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

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

<p>1. Attorney and Client — Compromise of Action. — An attorney employed to defend an action, has no authority to compromise it, without the special authority of the client, authorizing the attorney to do so.</p> <p>2. Attorney and Client — Compromise Judgment — Vacation.—Where a judgment has been entered against a party to a suit by the unwarranted action of his attorney, in agreeing to a compromise judgment, without the direction and consent of the party, it is the duty of the party to act promptly, by taking proceedings to ■ vacate it, when the knowledge of its rendition reaches him, and if he, instead of promptly repudiating it, acquiesces in it, until other parties, relying upon the judgment, put themselves in positions, from which they can not extricate themselves, so as to place the parties in statu quo, if the judgment should he vacated, he is estopped to complain of it.</p> <p>3. Sheriffs and Constables — Lien Upon Lands of Sheriff. — Section 4130, Kentucky Statutes, Axes a superior lien in favor of the Commonwealth, county or taxing district, upon any lands owned by a sheriff, at any time during the term of his office, to secure the payment of any money for which he may he liable to them and continues until it is paid, hut this lien.does not extend r.o lands, acquired by him after his term of office expires.</p> <p>4. Sheriffs and Constables — Lien Upon Property of Sheriff. — Section 4176, Kentucky Statutes, impresses a lien upon all property owned by a sheriff or other collector of public dues, for money, which they owe the Commonwealth or the county, from the commencement of the action against them, until the judgment is paid, and against this lien the sheriff or collector of public dues is not entitled to exemptions, under the exemption laws.</p> <p>5. Sheriffs and Constables — Surcharge of Settlement. — An action to surcharge the settlement of a sheriff upon the grounds of frauds and mistakes, in the settlement, is nolt barred by limitation, until Ave years after the frauds or mistakes toave'-heen discovered, or •by ordinary diligence should have been discovered, though the action can not be maintained, at all, after ten years have expired from the commission of the frauds or mistakes.</p> <p>6. Sheriffs and Constables — Surcharge of Settlement. — The quietus granted by a fiscal court to a sheriff as provided by section 4130, Kentucky Statutes, does not bar an action to open the settlement and to recover from the sheriff and his, sureties any money, which he may owe the Commonwealth, county or taxing district, and which has not been accounted for in the settlement through fraud or mistake, nor will such quietus protect persons, who have purchased lands from a sheriff, which he owned during his term of office from the enforcement of the lien provided for in section 4130, supra.</p> <p>7. Sheriffs and Constables — Breach of Sheriff — 'Liability of Sureties. —Where a sheriff, instead of causing property which has been omitted from assessment for taxes to be assessed therefor, as it is made his duty to do, where such property is due to be assessed and to pay the taxes, but collects the taxes, as though an assess- ■ ment had been made, and fraudulently appropriates the same to his own use. it is a breach of his bond for the faithful performance of his duties, and for such breach, he and his sureties are liable upon his bond and such liability is a lien upon his real estate within the meaning of section 4130, Kentucky Statutes.</p> <p>8. 'Sheriffs and Constables — Failure to Account for Money Collected. —Where a sheriff collects moneys from taxpayers, who have been omitted from assessments, and does not report their property for assessment, but appropriates the money, and fails,to account for it to the county or taxing- district, his liability upon his bond, is the amount of the moneys so collected and appropriated, and the county or taxing district does not lose its right to recover same, because of its failure to minimize its losses, by causing an assessment to be made and the taxes collected again.</p> <p>9. Sheriffs and Constables — Failure to Account for Money Collected. —'Money collected by a sheriff from poll taxpayers and property, which has' been omitted from assessment, and who and which were due to be assessed and to pay taxes, and the sheriff collects same, as though they were assessed, it is money received by him by color of his office, and for which he is liable upon his bond, provided for by section 4133, Kentucky Statutes, as'provided by section 4027 Kentucky Statutes.</p>

<p>1. 'Criminal Law — Justices of the Peace — 'Malfeasance—Indictment and Information. — An indictment which charges a justice of the peace with the offense of malfeasance in office by failing to report to the circuit court and pay over money collected on fines is not bad for duplicity, if it merely charge that he collected ■three different fines and failed to report them, for the gravamen of the offense of malfeasance in office under sections 3748 and 4252 Kentucky Statutes is in willfully and corruptly failing to report and pay the money collected in fines, which is but one act and constitutes but one offense.</p> <p>2. Criminal Law — Malfeasance—Of What Offense Consists — Indictment and Information. — The offense of malfeasance in office may consist of several acts, either one of which may constitute an indictable offense; but if the Commonwealth elect to indict a defendant for malfeasance in office for failing to do the several acts, either one of which may have been sufficient to render him guilty of the offense, yet the indictment is not bad nor the instructions objectionable if they follow the indictment, but the Commonwealth will be barred from a second prosecution for either of the offenses named in the specifications of the indictment.</p>

<p>1. Deeds — Action to Set Aside — Undue Influence — Mental Capacity, —In this action brought by the heirs at law of a deceased bachelor brother to set aside, 6n the grounds of the alleged unsoundness of mind of the grantor and its procurement by fraud and undue influence on the part of the grantee, a deed made by the former to the latter several years before his death, whereby he conveyed him his land, reserving to himself a life estate therein, evidence examined and held sufficient to support the judgment of the chancellor sustaining the validity of the deed and dismissing the petition.</p> <p>2. Appeal and Error — Motion for Trial by Jury. — The circuit court’s refusal to sustain appellant’s motion for a trial by jury of the issues of fact raised by the pleadings, was not error. The action being one of purely equitable cognizance, appellants were not, as a matter of right, entitled to a trial of the issues of fact by a jury. It was in the discretion of the court to allow it as an issue out of chancery, but it would not have been bound by the verdict of the jury. The refusal of the trial by jury was not an abuse of the court’s discretion.</p>

<p>Appeal and Error — Former Opinion in Case of Same Style. — As the judgment attacked on this appeal was reversed hy the Court of Appeals in Puckett v. Morris, 181 Ky. 374, as to one of the defendants therein, on his sole appeal, its reversal for the reasons stated in the opinion of that case, was inevitable on this appeal properly taken therefrom, on the same record, hy other defendants sustaining a like relation to the judgment and equally prejudiced hy its terms.</p>

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

<p>1. Limitation of Actions — Waiver—Appeal and Error. — The statute of limitations is a defense, which may be waived, and if a litigant does not plead or rely upon such statute, as a defense, in the trial court, it is too late, to try to interpose it in the Court of Appeals.</p> <p>2. Husband and Wife — Conveyance by Wife in Which Husband Did Not Join. — The deed of a married woman, in which her husband did not join, and when he had not theretofore conveyed the land, is absolutely void.</p> <p>3. Husband and Wife — Conveyance by Wife in Which Husband Did Not Join. — -When a married woman executes a deed, conveying her real estate, without her husband joining therein, or having theretofore conveyed, the deed is void, and she may re-enter at once, and her cause of action for the recovery of the land accrues at once, and she may sue for the recovery of the land, at any time, within fifteen years from the accrual of her cause of action; but, if the fifteen years expire before she becomes discovert, she may sue at any time, within three years, after the removal of her coverture. If she becomes discovert for as much as three years, before the expiration of fifteen years from the accrual of her cause of action, then her cause of action will be barred, at the expiration of fifteen years from its accrual.</p> <p>4. Husband and Wife — Conveyance by Wife — Limitation of Actions. —If a married woman after becoming twenty-one years of age, executes a deed, conveying her real estate, and her husband joins therein, and she acknowledges the deed before an officer authorized to take acknowledgments to deeds, but for some reason, the deed is ineffectual, her cause of action for the recovery of the lands, is barred, after three years, from the time, her disability of coverture is removed.</p> <p>5. Marriage — Validity—Law of the Place. — The validity of a marriage is determined by the law of the place, where the marriage occurred.</p>

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

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

<p>1. Attorney and Client — Fees—Workmen's Compensation Board— Right to Regulate. — Under section 4942 of the compensation act that may he found in volume 3, of the Kentucky Statutes, the compensation board has the power to. reduce the fee agreed to be paid by an employe to his attorney for representing him before the board, although the agreed fee may be within the statutory limit and it does not appear the employment was solicited. '</p> <p>2. Attorney and 'Client — Reduction of Fee^ — Appeal and Error. — An attorney whose fee has been reduced by the board may prosecute an appeal to the Circuit Court.</p>

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

<p>1. Appeal and Error — Finding of Chancellor. — Where upon questions of fact the plaintiff and defendant are the only witnesses testifying, and their testimony is so conflicting as to he wholly irreconcilable, the finding of the chancellor will not be disturbed.</p> <p>2. Appeal and Error — Finding of Chancellor. — Where one witness affirmed and another denied an alteration of a check, the original of which was before the chancellor, and which is not in the record, the chancellor’s decision will not he overruled.</p>

<p>1. Drains — Alternative Methods of Reclamation. — ¡By the drainage act of 1912 as amended and the drainage act of 1918 two independent alternative methods for the reclamation of wet lands are afforded.</p> <p>2. Drains — Viewers'’ Report — Under the provisions of the 1918 drainage act (sec. 2380-h, Kentucky ‘Statutes) a proceeding begun under the provisions of the 1912 act may be transferred to and completed under the provisions of the 1918 act upon motion of the petitioners or the board of drainage commissioners. Hence the court did not err in directing the viewers, appointed under the 1912 act, to make report, &c., in accordance with the 1918 act</p> <p>3. Drains — Viewers—Order Appointing — Oath.—It is not necessary that the order appointing viewers recite the fact that they took oath, &c., as required by law, and a viewer having performed the services required it will be presumed that he complied with all the provisions of the law before entering upon the discharge of such duties, in the absence of a showing to the contrary.</p> <p>4. Drains — Notice—Sufficiency.—The publication and mailing ot' notices to landowners of the proposed establishment of the drainage district, as provided by the 1918 act, held sufficient to afford landowners due process of law remedy for any infringement of their property rights and to sustain the court’s Jurisdiction.</p> <p>5. Drains — Jury—Constitutional Guaranty of Trial By. — The 1918 act divides the proceeding to establish and organize a drainage district into two distinct periods, the first of which is merely an inquiry to determine the necessity for the formation of the district and which is completed by a judgment establishing the district. Held that the constitutional guaranty of a trial by jurjr does not attach to the first period of such a proceeding.</p> <p>6. Jury — Constitutional Guaranty of Trial by. — Where a proceeding is purely statutory and was unknown to the common law the constitutional guaranty of a trial by jury does not apply.</p> <p>7. Drains — Trial Upon Appeal. — The act of 1918 provides that trials upon appeal to the' circuit court from the county court, which may be taken at different stages of the proceeding, shall be de novo, and shall be tried and judgment rendered as though “originally commenced in the circuit court,” which also had concurrent original jurisdiction of the proceeding. Hence the circuit court did not err in retaining jurisdiction once acquired instead of remanding the case to the county court for further proceedings necessary to a final determination of the case.</p>

<p>1. Wills — Ademption.—At common law a sale or other disposition of a specific devise operated as an ademption thereof; but by section 2068 of the statutes this rule is changed in this state as to.devises made to an heir of the testator, in which case no ademption will result, unless a contrary intention appears from the will or other evidence.</p> <p>2. Wills — Equitable Conversion — -Intention of Testator. — In order to carry o-ut the intention of the testator, courts frequently apply the doctrine of equitable conversion, which arises when the testator expressly or by undoubted implication directa a conversion of the property, and makes the terms of his will apply to the property in its converted form. But this doctrine, being an arbitrary one, will not be applied unless it clearly appears that it was the intention of the testator to direct a conversion of the devised property, and to enjoin upon his executor or trustee, or the court, the duty to convert it, since no conversion will result where'"there exists only a doubt as to the testator’s intention.</p> <p>3. Wills — Ademption.—A testatrix devised a farm to a trustee, directing that its income be paid to her son during his- life, and for it to go to his children, if any, at his death; but if none, to other designated devisees. She then authorized and empowered her trustee within its discretion to sell the farm and invest the proceeds in other property to be selected by it. Before her death she sold the farm. Held that the devise of the farm was adeemed by her sale of it, and the proceeds being capable of identification at her death went under the will to her son, who was, by the second clause of her will, given all of the remainder of her personal property.</p>

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

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

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

<p>1. Adverse Possession — Color of Title — Requisites.—Generally speaking, any instrument, however defective or imperfect, and no matter from what cause invalid, ¡purporting to convey the land and showing the extent of the tenant’s claim, may be “color of title”; and a claim to the land thereunder will draw to the claimant the protection of the statute of limitations, the other requisites of adverse possession being present.</p> <p>2. Adverse Possession — Color of Title — Requisites.—Except in particular cases covered by statute, it is- not a necessary element of “color of title” that the claimant thereunder should believe it to •be valid; nor will the claimant’s possession be any the less adverse because he has knowledge of title in another.</p> <p>3. Adverse Possession — Character and Continuity of Possession— Church Property — Sufficiency of Possession. — The strict rule applicable to ordinary property with respect to the character and continuity of possession is not applied in case of property used for school or church purposes, but the possession of such property is adverse if it is used in the way that such property is ordinarily used.</p> <p>4. Adverse Possession — Character and Continuity of Possession — ■ Church Property — Sufficiency of Possession. — Where there was a church, building on the lot in controversy, in which the congregation regularly held its services, and the adjoining portion of the lot was used by the members for the purpose of hitching their horses, storing iheir vehicles, holding their church picnics, etc., the possession of the lot was continuous and adverse.</p> <p>5. Adverse Possession — Extent of Possession — Effect of Acquiring Deed After Entry. — Where a congregation builds a church on a lot, the corners of which are marked, and occuffiies the lot in the manner in which church property is ordinarily used, and subsequently takes a deed defining the boundary which had become obscure by reason of the destruction of the corner trees, and continues to occupy the entire lot for fifteen years, the possession is adverse to the extent of .the deed, and it is immaterial that the original entry was not made under the deed.</p> <p>6. Trespass — Damages—Excessive.—In an action by a church to recover damages for the destruction of shade trees, evidence considered and a verdict of $700.00 held not excessive.</p>

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

<p>1. Wills — Undue Influence. — Undue influence, such as will invalidate a will, is such influence as substitutes the will of another for that of the testator in the devise and disposition of his estate.</p> <p>2: Wills — Undue Influence — -Burden of Proof. — Where it is admitted that the beneficiaries named in a will were absolutely innocent of any purpose or effort to influence the testator to- devise his property to them, the burden is upon the contestants to show by clear and convincing evidence- that the testator was induced by outside influence to dispose o-f his property to the prejudice of contestants.</p> <p>S. Wills — Undue Influence — Anonymous Letters — Evidence.—Where the evidence merely shows that the testator received anonymous letters threatening to start a -prosecution against him and to otherwise harm him, which he believed were written or instigated by Ills daughter whem ho disinherited, there is not sufficient evidence upon which to set aside an otherwise valid will on the ground of undue influence exerted over the- testator.</p> <p>4. Wills — Evidence—Testamentary Capacity. — Evidence in this case examined and held insufficient to show either testamentary incapacity or the c-xerciso of undue influence over the testator in the disposition of his property.</p>

<p>Wills—Construction of.—Where a testator provided in his will that the estate given to his daughter who was of unsound mind “should he held for her by a trustee until her mind becomes sound or until her children become twenty-five years oí age,” the intention was that the share of this daughter should be held for her until the children reached twenty-five, if she lived until that time and continued incomipetent; if she was restored to her right mind in that time it should ibe paid to her. hut if she died incompetent before the children reached twenty-five, the estate should be 'held by the trustee for them until they reached that age.</p>

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

<p>1. Easements — Prescription—-Adverse Possession. — An casement, such as a right of w.ay over the lands of another, is created by, prescription, when the owner of a tenement, and those under whom he claims title, have openly, peace-ab-ly, continuously and under a claim of right, adverse to the owner of the soil and with his knowledge and acquiescence, used a way over the lands of another for as much as fifteen years.</p> <p>2. Easements — Knowledge of Use Im-p-utod to Owner. — Where the uso of an casement, as a right of way, is opon and visible, the knowledge, of its use as such, is imputed to the owner of the soil, over which it runs.</p> <p>3. Adverse Possession — Presumption of Adverse Use. — The continuous, uninterrupted use of a road over the enclosed lands of another for the statutory period, -raises the presumption, that the use is under a claim of right, but, such use of a road over tue unenclosed lands of another does not raise the presumption, that the use is adverse, but an adverse use of a road -over such lands, may be proven, and the burden of so doing is upon the claimant of an easement.</p> <p>4. Easements — Adverse Possession — Parol Grant of Right of Way.— When a iparol grant of a right of way is made, the use of it by the grantee is adverse to the grantor, and the grantee’s title to the easement will mature, after fifteen years, continuous and uninterrupted use.</p> <p>5. Easements — Prescription—Implied Grant. — A right of way created by prescription, implies, that there was once a grant of it, but the grant has been lost, and where such .an easement exists, the owner of the servient estate may erect gates across the right of way if their construction and location is such, that they will not unreasonably interfere with passage over the way, and the circumstances of the case are such, that it may be implied, that such right was intended by the parties.</p>

<p>Infants — Sale of Land Under Section 490 of the Code in Which There is a Life Estate. — Under section 490, of the Civil Code, as ■amended, where a widow owns a life right or estate in the whole of the land and infants own the remainder, the land cannot -be sold for distribution of the proceeds, although it may be indivisible; but if tbe life tenant only has an estate in a part of the land it may be sold under this section.</p>

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

<p>1. Municipal Corporations — Local Improvements — Assessment of Benefits — Municipal Indebtedness. — Contracts for local improvements, the cost of which is- to be borne wholly by the property benefited, do not create a municipal indebtedness within the meaning of sections 157 and 158 of the Constitution.</p> <p>2. Municipal Corporations — Local Improvements — Assessment of Benefits — Municipal Indebtedness. — Where street improvement bonds are not payable wholly out of a special fund from assessments on the property benefited, but the faith and credit of the • city are pledged for their payment, they are within the meaning of sections 157 and 158 of the Constitution limiting municipal indebtedness.</p> <p>■8. Municipal Corporations — Local Improvements — Assessment of Benefits — Municipal Indebtedness. — Where the ordinance authorizing the issue of street imiP'rovement bonds provides that the faith and credit of the 'City are not pledged for their payment, hut that the faith and credit of the city are merely pledged to collect the assessments and pay over the proceeds to the holders of the bonds, the liability of tbe city is not an indebtedness within the meaning of section 158 of tho Constitution.</p> <p>4. Municipal Corporations — Local Improvements — Assessment of Benefits — Municipal Indebtedness. — Though a bond issued to pay the city’s part of the cost of street improvements is an indebtedness of the city, it is valid, where the proceedings are otherwise regular and proper, and it is authorized by a proper vote of the people at an election held for that purpose, and it, together with, the other indebtedness of the city, does not exceed three per cent of the value of the taxable property of the city as estimated by the assessment next before the last assessment previous fo the incurring of the indebtedness as provided by section 158 of the Constitution.</p>

<p>1. Wills — Power.to Sell While Held in Trust. — Where a will conferred upon the executrix and trustee named therein the power to sell any part of the estate devised, while held in trust, and reinvest the proceeds in other property to be held in like trust, the sale by her, at its fair market value, of certain bank stock constituting a part of the trust property and reinvestment of the proceeds in a town house and lot, purchased at its fair market value, the title to which she took to herself in trust as provided by the will, was hut a proper exercise of the sound discretion given her by that instrument, and the judgment of the circuit ■court so holding, was not error.</p> <p>2. Wills — Termination of Trust — Reinvestment.—A ¡provision of the will requiring a purchaser of any part of the devised estate, after the termination of the trust and its division among the remaindermen, to see to the reinvestment of the proceeds of sale, cannot he made to apply to a bona fide purchaser, for value, of any part of the devised estate under a sale thereof made by the trustee, before the termination of the trust, under the power of sale conferred bj the will.</p> <p>3. Wills — Infants—Action for Recovery of Bank Stock — Liability of Remaindermen. — The fact that the proceeds of the bank stock were deposited in hank, probably with other money belonging to the estare, by the trustee to her account as executrix and then checked out from that account in payment of the purchase price for the house and lot, did not constitute a misappropriation of such proceeds or a wrongful conversion of same, known to the president of the hank who was the purchaser of the bank stock, as the account was the only one kept by her and included all fiduciary moneys received and paid out by her both as executrix and trustee, and the proceeds of the hank stock admittedly were applied to the payment of the purchase price of the house and lot. For those reasons it properly was adjudged by the circuit court that neither the bank nor its president was liable to the remaindermen suing under the will for the bank stock or its value.</p>

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

<p>1. Deeds — Construction of. — In the construction of deeds the intention of the grantor, if it plainly appears from an inspection of the whole instrument, will overcome a contradictory or conflicting stipulation or condition and control absolutely the construction.</p> <p>2. Deeds — ‘Construction of. — Although the granting clause of the deed, as well as, the habendum, contained words that vested a fee in the grantee the body of the deed clearly showed that the grantee should only have a life estate, and the body of the deed controlled the character of the estate conveyed.</p>

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

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

<p>1. Insurance — Evidence of Physician — Mental Capacity — -Non-Expert Witness. — It is competent for a physician or a non-expert witness, from knowledge and association with the person inquired about, to give their opinion as to his .mental condition. But it is not competent for the witness to give his conclusions as to the truth or falsity of the i^sue being investigated.</p> <p>2. Insurance — Defense of Suicide. — The defense- of suicide while sane or insane to a suit upon a life insurance policy will not prevail if the insured did not have mind enough to know and comprehend the nature of his act, and th-at it would produce death, or that he did not have will power sufficient to resist the impulse to commit suicide.</p> <p>3. Insurance- Defense of Suicide — Evidence.-—Where the witnesses for plaintiff in a suit upon a life insurance policy testified to acts, conduct, and other -facts indicating that the insured for some days prior to his committing suicide had suffered an impairment of his mind, and according to their opinion he was mentally incapable of realizing the nature of his .act, or of resisting the impulse to commit suicide, and the record furnished no reason why the deceased would want to end his life, a verdict in favor of plaintiff will not be disturbed as being flagrantly against the evidence.</p>

<p>1. Drains' — Order Confirming Viewers’ Report — Jurisdiction.—Under the drainage act of 1912 (.Sec. 2380, Ky. Statutes) the order of the county court confirming the viewers’ report and referring the proceeding to the hoard of drainage commissioners for construction of the improvement and preparation of assessment roll does not necessarily terminate the jurisdiction of the county court, and it may retain jurisdiction until every incident of the litigation is terminated.</p> <p>2. Drains — Constitutionality of Act — Jurisdiction—Parties^—The drainage law of 1912 was unconstitutional only insofar as it authorized a levy and collection hy the hoard of drainage commissioners of assessments against the lands of citizens without giving them an opportunity to be heard upon final assessments against the lands. Hence, where the county court hy its order of reference to the drainage hoard expressly retained jurisdiction for the purpose of giving landowners, who- were parties, an opportunity to he heard, and they were given this opportunity after notice by publication^- every constitutional objection to the act was removed.</p> <p>3. Drains — Act Not Ex Post Facto. — The act of the legislature amending the drainage act of 1912 and confirming all proceedings had theretofore in which the parties' had been given an op- , portunity to be heard, is not an ex ip'ost facto law in the sense m which such laws are prohibited by the constitution, but is curative only.</p> <p>4. Drains — Order Confirming Viewers’ Report — Collateral Attack. — ■ Where the county court expressly retained jurisdiction by the order confirming the viewers’ report and referring the proceeding to the board of drainage commissioners, and the landowners had an opportunity to be heard u®on final assessments against the lands, orders and judgments entered subsequent to the confirmation of the viewers’ report and reference to the drainage commissioners were not void, and parties who were properly summoned and before the court in that proceeding may not attack the validity of such orders and judgments by a collateral proceeding.</p> <p>5. Corporations — Statement Upon Whom Process May Be Served— Failure to File. — The failure of a non-resident corporation to comply with section 571 of the statutes by filing with the secretary of state a statement designating an agent upon whom summons may be served does not render a contract with such corporation void but voidable only at the option of the other party, who may enforce it.</p>

<p>]. Master and Servant — Safe Place to Work. — A master is required to maintain reasonably safe structures for his servants -while in the (performance of his work and reasonably safe approaches to enable them to go to and depart from their place of work.</p> <p>2. Master and Servant — Negligence—Damages—Burden of Proof.— In an action by a servant against a master for damages, it is not enough for the servant to show ho has sustained an injury, he must show some specific act of negligence. There must be some judicial connection between the master’s negligence and the injury and the burden of proving there was such a connection rests on the servant.</p> <p>3. Master and Servant — Personal Injuries — (Liability of Master.— Where a servant in going to and from the master’s premisesi climbed over a pile of coal and went in and out the door used for coal he can not recover for injuries received by tripping over a board placed against the door-jamb to hold the coal in check. The fact there was more coal than usual on hand at the time did not render the master liable.</p>

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

<p>1. Municipal Corporations — Control of Streets — Abutting Owners —Action to Close Street. — A city of the third class has, under its charter powers, complete control of ail streets, alleys and other ipuKic ways within its corporate limits; 'and its governing authorities may, by the passage of proper ordinances so directing, open, improve, alter, extend or close any street, alley or part thereof when in their discretion deemed necessary for the benefit of the public; hut the closing of a street or alley, whether as a whole or in part, must be effected through the bringing of an action by the city for that purpose in the circuit court, to which all persons owning the lots abutting on either side the street or alley, or ipiart thereof, proposed to be closed, are required to he made parties,</p> <p>2. Municipal Corporations — Abandoned Street — Action to Close— Parties. — Where in an action brought by the city of Henderson to obtain the closing of a part of a street abandoned by a change therein, as directed by an ordinance duly adopted by its common council, it was conclusively made to appear that all the ground occupied by the new part of the street as changed, and also the ground bordering each side of that part of the street to be closed, was owned by the single corporation made a defendant to the action, others owning lots bordering either side of other parts of the street not affected by the change or the closing of so much of the street as was thereby discontinued, álthough permitted by the filing of their intervening petition to become parties to the action, had no legal right to object to the closing of the abandoned part of the street.</p> <p>3. Municipal Corporations — Action to Close Street. — In an action by a city to close part of a street, the only persons entitled to compensation and who are necessary parties, are those owning prop- . erty abutting on that part of the street proposed to be closed; and as in this case the only owner of the property abutting on that part of the -street to be closed, consented to the closing thereof and gave the ground for the change in the street, no compensation was asked or awarded.</p> <p>4. Municipal Corporations — Action to Close Street.: — A city may alter or close a street, although it was conveyed to and accepted by it under a deed providing that it should always remain free and open as a street.</p> <p>5. Municipal Corporations — Control of Streets. — The city has the same control over highways deeded to it, that it has over other public ways, whether acquired by gift, purchase or condemnation. In accepting the dedication of .a street by deed, the city only assuines the duty of keeping it open as it does other streets, with the right to close it as it might other streets which cease to be useful to the 'public.</p> <p>6. Municipal Corporations — Closing -Street — Reversion.—Upon the--closing of a street or part thereof by a city, -the ground embraced therein reverts to the owners of the abutting lands on either side thereof; those of each side taking it to the middle of the abandoned street. But where the land on each side of the abandoned street is owned by a single person (or corporation as in this case) such person will be entitled to take the whole of it.</p>

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

<p>.3. Limitation of Actions — Revival—Promise to Pay. — -A debt barred by the statutes of limitation is not revived and rendered enforceable by a promise -of the debtor to -pay a certain part of the claim in consideration of full satisfaction, and of other conditions with which the promisee fails to comply.</p> <p>2, Limitation of Actions — Conditional Promise to Pay — Revival.—A -conditional promise to pay a debt barred by limitation does not revive the debt and render it enforceable unless the payee complies with the conditions named by the payor.</p>

<p>1. Descent .and Distribution — Lien of Creditors of Decedent — The lien given by Kentucky Statutes, section 2087, to the creditors of a decedent upon the estate left by the latter for the payment of their debts continues for six months after the estate is devised cr na.s descended, during which time the estate cannot be aliened or otherwise disposed of by the devisee or heir, even to a 'bona fide purchaser for value, so as to defeat the lieu of the creditor. But this inhibition of the statute does not apply to an executor of a will with power to sell the real estate devised.</p> <p>2. Descent and Distribution — How Heirs to Realty Took at Common Law — How Under Statute. — As at common law the devisees and heirs took the realty by devise or descent free from the debts of the testator or ancestor, and the statute, supra, is in derogation of that rule of the common law, it should not he given a strained construction that would extend its restriction upon the right of alienation to include a person or class of. persons not harmed therein. Therefore, as the language of the statute confines such restriction to devisees and heirs alone, it does not embrace or apply to an executor with power of sale, o-r other personal representative of like power.</p> <p>3. Descent and Distribution — Contract of Sale — Powers of Executrix —Breach—Damages.—Where'the will of a testator devising real estate, empowers the executrix thereof to sell -and convey any part of it, the purchaser of a lot, constituting a part of the devised real ©state, by a contract in writing made with her before the 'expiration of six months from the testator’s death, cannot refuse to iperform such contract according to its terms, on the ground that the deed tendered him by the executrix would not pass to him the title to the lot unencumbered by a lien under section 2087, Kentucky Statutes, in favor of the testator’s creditors, as that section does not apply to a sale of the devised realty made by such executrix. Therefore, in such state of case an action may be brought by the executrix after the purchaser’s death, to recover of the administrator of h'is estate damages for his breach of the contract.</p>

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

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

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

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

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

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

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

<p>1. Wills — ¡Estates Devised — ‘Gafts Over After Absolute Devise — Gifts Over After Life Estate — Validity.—Where property is devised to one absolutely, with the power of unlimited disposition, the limitation over of what remains undisposed of is void, but where a life estate only is devised, with power of unlimited disposition, the limitation over of what remains undisposed of is valid.</p> <p>2. Wills — Construction—Estates Acquired — Limitation Over After Absolute Estate. — After the payment of his debts, testator devised all his remaining estate to his wife, and then provided tha/t after his wife’s death, “any remaining estate should be given to his children:” Held, that the wife took the fee and.that the limitation over of what remained undisposed of was void.</p>

<p>1. Insurance — Contracts'—Oral Contract. — In the absence of a statute to the contrary, an oral contract of insurance, which contains all the elements essential to a contract, is valid.</p> <p>2. Insurance — Insurance Contracts — Reformation.—An insurance policy may he reformed the same as other written instruments if, hy reason of mutual mistake, or mistake on one side and fraud on the other, it does not conform to the real agreement.</p> <p>3. Insurance — Agent—Authority.—■It is within the apparent scope of the authority of an agent, with power to solicit insurance, deliver policies and collect premiums, to make an oral contract, and his act in so doing is binding on the company unless the insured knew of the limitations on his power.</p> <p>4. Insurance — Agent—Authority—Insured’s Knowledge of Limitation —Evidence.—In an action to reform and enforce an insurance contract on the ground that it did not conform to the real agreement made between the company and its local agent, evidence-considered and held not sufficient to show that the insured had knowledge of the limited authority of the agent.</p> <p>5. Insurance — Insurance Contract — Reformation—Estoppel.—Plaintiff and defendant’s agent agreed on a contract of insurance covering the operation of plaintiff’s logging train. The policy finally accepted by plaintiff described the risk as “transportation of logs to mill.” Following the description of the risk, statement 8 of the schedule was as follows: “The assured does -not operate a railroad, switch or side track in connection with the work described in the schedule except as follows.” Opposite this were the words, “no exceptions." When the policy was delivered, defendant’s agent assured plaintiff that the policy covered the operation of its logging train, and plaintiff did not read the provision nullifying the policy: Held, that the acceptance and retention of the policy under these circumstances did not preclude plaintiff from relying on the mistake.</p>

<p>1. Deeds — Buildings—Restriction—Residence—Apartment House. — A restriction in deeds “that not more than one building other than outhouses shall be erected upon either one of said lots and that any improvements which may be erected upon said lots or either of them shall be used for residence purposes only” does not prohibit the erection on the lot or lots of an apartment house for residence purposes of-six or more stories and containing forty or imore apartments.</p> <p>2. Deeds — Buildings—Restriction—Residence—Apartment House.— Where two lots were conveyed by separate deeds, each deed containing the restriction set out in the above paragraph, this restriction would not prohibit the purchaser of the two lots from erecting an apartment house to be used for residence purposes that would cover both of the lots and part of an adjoining lot conveyed by deed that contained a like restriction.</p> <p>3. Deeds — Buildings'—Restriction to One Residence Upon Each Lot. —Where a deed provided that not more than one building could ■be erected upon the lot conveyed, two residence buildings could not be erected on the lot without violating the restriction.</p>

<p>1. Master and Servant — Promise to Dismiss Suits — Without Consideration. — A promise by a master to employ one in his business in consideration -of a promise to dismiss certain suits filed against the servants of the master, which suits were based upon matters wholly disconnected from the master or his business, is not shown ■to be supported 'by any consideration and is non-enforceable against the master.</p> <p>2. Principal and Agent — ’Implied Authority — Burden of Proof. — The authority of a superintendent or general manager of a particular business is limited to transactions which occur in the usual course of the business, and'the principal is not bound by an agreement of his superintendent in charge of his business unless the agreement ibe within the scope .of the express or .implied authority of the superintendent, and the burden is on the one seeking to hold the principal liable .to allege and prove the express or implied authority of the superintendent to make the contract in the name of the principal.</p>

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

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

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

<p>.1. Beneficial Associations —• Authority of Agents — Subordinate lodges of a mutual benefit society, are, as a general rule, the agents of the supreme lodge of the society, and the society is bound by their acts and omissions, within the scope of their authority.</p> <p>2. Beneficial Associations — Authority of Subordinate Lodges. — A mutual benefit society is bound by the acts and omissions of a subordinate lodge, only, when the latter is the agent of the former;’ and before the act of the subordinate lodge can bind the society, it must appear, that the inferior lodge was- acting within the scope of its authority; or, if an omission, before it constitutes a waiver or estoppel to the society, it must appear, that the omission was to do something, which it had authority, as an agent to do -and which it was the duty of the society -to do or cause to be done.</p>

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

<p>1. Deeds — Consideration—Acknowledgment of Receipt of Consideration — Admissibility of Evidence to Rebut Payment. — An acknowledgment in a deed of tbe receipt of tbe -consideration is only prima facie -evidence of payment, which may be rebutted by proof -aliunde.</p> <p>2. Executors and Administrators — 'Claims Against Estate — Deeds— Consideration — Evidence Rebutting Acknowledgment of Receipt of Purchase Money — Sufficiency.—-In an action setting up a claim -against an estate for tbe balance of purchase money for a tract of land, evidence examined and held insufficient to overcome -the acknowledgment in tbe deed of tbe receipt of -the purchase money.</p>

<p>1. Appeal and Error. — Supersedeas Bond — Damages.—Damages'on a supersedeas bond will only be awarded in cases where the judg, ment is for the payment of money, and may be enforced by execution or similar process.</p> <p>2. Appeal and Error — Supersedeas- Bond — D'amages.-r-Wihere the whole of a money judgment, payable in installments, has been superseded, damages will go not only on the amount' due before the execution of the bond, but on the amounts due after the execution of the bond, if the collection of these after due sums could be enforced by execution or similar process.</p> <p>3. Appeal and Error — Supersedeas Bond — Damages.—Where there is a final judgment for a definite sum of money, it is not necessary to authorize the issual of an execution for its collection when due that the judgment should so provide or direct, as section 1650, of the Kentucky 'Statutes, provides for the issual of an execution, in such cases.</p> <p>4. Appeal and Error — Supersedeas Bond — Damages—Form of Judgment. — The fact that in a judgment the court reserved the right to make such orders in the case as may thereafter be necessary, ■did not affect that part of the judgment that directed the payment of a specified sum of money on a mentioned day.</p> <p>5. Judgment — Execution—When May Issue. — Where a judgment - “ordered and directed” the payment of a specified sum of money on a certain day, an execution might be issued for its collection, although the judgment did not in so many words provide.</p>

<p>1. Negligence — Duty to Invitee. — Where a terminal company was engaged in placing cars on defendant’s track as directed by defendant, defendant owed to the members of the switching crew the duty to exercise ordinary care to maintain its track in a reasonably safe condition for their use.</p> <p>2. Negligence — Assumption of Risk. — In view of the. fact that the doctrine of assumed risk is not based entirely on contract, but grows out of the application of the maxim, “Volenti non fit injuria,” there may be a voluntary assumption of the risk of a known danger which will debar one from recovering compensation in case of injury, even though he was in the exercise of due care.</p> <p>3. Negligence — Assumption of Risk — Question of Daw. — In an action for personal injuries by the foreman of a switching crew of a terminal railroad company engaged in switching ears on defendant’s tracks, evidence examined and held that plaintiff did not assume the risk of injury from an unspiked rail as a matter of law.</p> <p>4. Negligence' — Unsafe Method of Doing Work — Question for Jury.— The evidence being conflicting on the question whether plaintiff adopted an unsafe method for doing the work, the question was for the jury.</p> <p>5. Negligence — Injury to Invitee — Contributory Negligence — Question for Jury. — In such an action evidence considered and the question 'of contributory negligence held for the jury.</p> <p>6. Damages — Excessive' Damages. — Where plaintiff was thirty-five years of age, and his injuries resulted in the amputation of his leg eight inches below the knee, a verdict for $15,200.00 was not excessive, in view of the high cost of living and the diminished ■purchasing power of a dollar.</p>

<p>1. Arrest — Arrest Without Warrant. — A peace officer may arrest an offender against the law without a warrant, if the offense of which t/he latter is guilty is committed in his presence.</p> <p>2. Escape — Force that may he Used to Prevent. — To prevent the escape of a prisoner convicted of a misdemeanor, put in hie custody by the trial court for delivery to the jailer of the county, the officer may oppose force to the force employed by the prisoner sufficient to overcome it. If the prisoner, in the attempt to escape, puts the life or person of the officer in jeopardy, the latter may, se defendendo, slay him, but he must not use any greater force than is necessary for his protection.</p> <p>3. 'Criminal Law — Instructions—New Trial. — As on the trial of appellant, an officer, under an indictment for the murder of a prisoner in his custody, the instructions of the court, in substantially correct language, gave all the law as concretely stated in the above paragraph, there was no such error in the instructions as entitled him to a new trial.</p> <p>4. Criminal Law — Escape of Prisoner — Trial.—As much of the evidence conduced to prove that the prisoner, when shot and killed by appellant, was not resisting the latter or attempting to escape, the refusal of the trial court to peremptorily -instruct the jury to return a verdict of acquittal was not error.</p> <p>5. Criminal Law — New Trial — Conduct of Juror. — Where one member of the jury was permitted by the sheriff to hold a brief conversation with an outsider, apart from the rest of the jury, upon a subject having no connection with the trial, neither the conversation nor separation gave cause for the 'granting of a new trial.</p> <p>6. Criminal Law — -New Trial — Conduct of Jury.' — -The fact that the sheriff left the jury for a few minutes to procure for them something to eat at a nearby grocery, furnished no ground for a new trial, as before leaving the jury the sheriff locked them together in a room, taking the key with him, and the jury remained locked in the room and were not seen or talked with by any other person during his absence.</p>

<p>1. Master and Servant — -Protection of Employees — Rules—Waiver.— Employers of labor may adopt reasonable rules and regulations for the safety and protection of their employees, and Kentucky Statutes, section 2738, expressly provides for the adoption of such rules hy a coal operator, and when such rules are,adopted an employee who has proper notice of them must observe their requirements, and if he fails to do so and is injured while violating them, the master will not be liable for the damages sustained, unless such requirements have been waived by some legal method.</p> <p>2. Master and Servant — -Rule as to Operator of Electric Motor.— A rule requiring the operator of an electric motor used in a coal mine to see that it is kept in good repair, and to immediately repair it if it becomes defective, or to take it out of service and have it repaired if he is unable to do so, is a reasonable rule, and if known by the operator of the motor and he fails to observe it and is injured thereby, the master will not be liable.</p> <p>3. Master and Servant — Rules as to Operator of Electric Motors — • Por a mechanic superior to a servant operating a motor, upon repairing it, to say to the operating servant with reference to the motor “It is ready, go ahead and finish the day, and I will put in a new set of resistance tonight” is, to say the least of it, not an assurance that the motor would remain “ready” or safe throughout the remainder of the day, and if it subsequently became out of repair it was the duty of the servant operating it to discontinue such operation and repair it, or to take it out of the mine for re- -• pair.</p> <p>4. Master and Servant — Negligence of 'Servant — Ordinary Care.- — A servant can not relieve himself from the consequences of his own negligence by relying upon the master performing his duty, and if an injury is sustained by the servant through his negligence, he may not recover of the master, although the latter may have failed in some of his duties, unless the master saw or -had knowledge of the perilous situation of the servant in time to prevent his injury hy the exercise of ordinary care, in which ease it would be the master’s duty to exercise such care in order to prevent injury to the servant.</p>

<p>1. Negligence — Actionable Negligence — Recovery.—To constitute actionable negligence justifying a recovery the facts showing the existence of a duty to the plaintiff by defendant must he shown as well as a violation of that duty on defendant’s, part resulting ■in damages to plaintiff.</p> <p>2. Negligence — Ordinary Care to Keep Premises Safe. — The owner of property who invites others to come upon his premises must exercise ordinary care and prudence to render the premises reasonably safe.</p> <p>3. Negligence — Liability—A defendant is generally not liable for negligence where no injurious consequences could reasonably have been contemplated as a result of the act complained of. Liability attaches only where injuries might have been anticipated or foreseen.</p> <p>i. Negligence — Condition of Premises — Presence of Gas. — Plaintiff was desirous of renting an apartment. He procured the key to said apartment from men who were moving the furniture of a previous tenant; within an hoijr and a half after he notified the agent i he wanted to inspect the premises he was injured through the explosion of gas, which followed the striking of a match by plaintiff when he entered the premises. The presence of gas was due to the failure of the moving men to turn off the gas or else to the act of an intruder. In the absence of knowledge on the part of the landlord or his agent of the condition of the premises, the owner not being an insurer as to its safe condition he did not fail in his duty to exercise ordinary care and the lower court properly directed a verdict for defendant.</p>

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

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

<p>1. Taxation — Municipal Corporations — Appeal and Error. — A taxpayer in a third class city whose property has been listed for taxation at an excessive valuation may appeal to the board of supervisors for relief; and if it fail to grant relief the taxpayer may appeal to the common council of such city, but there is no appeal from the finding of the common council unless it appear that the excessive valuation of which complaint is made, is the result of fraud or corruption on the part of one or 'more of said taxing agencies, in which event a court of equity will grant relief.</p> <p>2. Taxation — Injunctive Relief — Equity.—Where the petition seeking injunctive relief merely avers that the taxing authorities have listed the property of plaintiff at an excessive valuation without charging fraud, a court of chancery will not take jurisdiction.</p> <p>3. Taxation — Assessments—Pleading.—An averment that the assessments are illegal, unfair, unjust and unreasonable, are but conclusions of the pleader.</p>

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

<p>1. Railroads — Trespassers on Track — Lookout Duty. — Trainmen in cfharge of an engine do not owe a lookout duty to a trespasser on the track in the country away from public crossings, hut when a man is discovered on the track in front of the train in a helpless condition, or apparently oblivious to the .threatened danger, it is the duty of the trainmen to exercise ordinary oare by the use of means at hand to so control and manage the train as not to injure such person, and a failure to perform this duty renders the railroad company liable.</p> <p>2. Railroads — Duty of Engineer Upon Seeing Object on Track. — Where an engineer sees an object on the track in front of his train which he believes t.o he a man, it is his duty to immediately put his train under control, if the man does not appear to he conscious of his danger.</p> <p>4. Railroads — Operation—Duty of Conductor — Instructions.—Where the evidence is conflicting as to the distance at which the trainmen saw an object on the track in front of the train, and there is evidence conducing to prove that at the time the engineer saw the object on the track he gave a warning signal by a succession of shrill blasts from his engine, and these blasts were given at a time ■when the engine was at so great a distance from the man on the track as to have afforded a reasonable opportunity by the exercise of the means at hand, to1 have stopped the train before it reached the deceased, it was the duty of the trial court to submit the case to the jury, and if the jury believe from the evidence that the engineer saw the object on the track and realized it was a man in a helpless condition far enough away to have stopped the train by the exercise of ordinary care, and failed to do so, the- railroad company was liable.</p>

<p>1. Trial — Taking Case From Jury — Improbability of Facts. — The credibility of a witness being for the jury, the courts are mot authorized to reject his testimony and refuse to submit tbe case to tbe jury on the ground that the facts stated are highly improbable. It is only where the facts testified to are utterly at variance with well established and universally recognized physical laws, and - therefore inherently impossible, that .tbe courts may refuse to sulbmit the case to the jury.</p> <p>2. Carriers — Injury to Passenger — Duty of Engineer — Instructions.— It being no part of the duty of an engineer to discover whether an intending passenger had time to boai'd the train or to determine for himself when the train should he started, and there being no evidence that the engineer saw plaintiff while he was attempting to board the train, it was error to give an instruction making the liability of the carrier depend upon the engineer’s failure to give plaintiff a reasonable opportunity to board the train, or in starting the train with an -unnecessary and unusual jerk or lurch, “after he knew, or could have known by the exercise of ordinary care, plaintiff’s intention to become a passenger.”</p> <p>3. Carriers — Duty to Passenger — Negligence.—Where a passenger is at the station when the train stops and attempts to board the train at a place where it is usual and customary for passengers to board the carrier’s trains, the conductor and brakeman, although they do not actually see him, are charged with knowledge of his presence, and the carrier is guilty of negligence if it starts the train before the passenger has a reasonable opportunity to board tbe train, or starts tbe train with a sudden, unusual and unnecessary jerk; but if a passenger attempts to board tbe train at a place where it is not usual and customary for passengers to board the carrier’s trains, and neither the brakeman nor the conductor actually sees him, the carrier is not guilty of negligence in failing to give the passenger a reasonable opportunity to hoard the train or in starting the train with a sudden, unusual and unnecessary jerk.</p>

<p>Electricity — Uninsulated Wires' — Contributory Negligence — Question for Jury. — In an action by a telephone lineman for personal injuries caused by a telephone wire coming in contact with an electric light wire, evidence examined and the question of contributory negligence held for the jury.</p>

<p>Contracts — Breach—Damages.—A tract of land Was owned by a father as life tenant and his son as remainderman. During the infancy of his son, the father sold the land under a contract Whereby the son, upon reaching his -majority, was to convey his -interest to the purchaser, the father agreeing that if his son would sign the deed he would reinvest the proceeds in lands in a neighboring county, which he failed to do. There was a general increase in the value of land in that county. Upon the 'death of the father, ten years later, the eon asserted a claim against his estate for damages, and was allowed interest on the proceeds of the sale of the land during the father’s lifetime in lieu of other damages: Held, that as no particular tract of land in which the proceeds were to he invested was designated, the father might have selected a tract of land that would have actually decreased in value, and for this reason the son’s claim of damages is too speculative and remote to .authorize the judgment allowing him interest on the proceeds of the .sale of the land dueling the lifetime of his father.</p>

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

<p>1. Officers — Governor—Appointive Officers. — Where an act creating an office and officer gives the appointment of the officer to the-Governor and there is no law requiring the Governor to send the name of the appointee to the-Senate for its approval or rejection, he cannot do so; and if he 'Should, neither his action nor that of the Senate would have any binding force on either the Governor or the appointee.</p> <p>2. States — ¡Legislature—Powers of in Appointment of Officers. — Where the legislature is not restrained by the Constitution, it may create offices and m'ake the appointments itself, or give the right to appoint to the Governor or any other person or body, .and it may provide that the appointing authority must submit his or its appointments to any person or' body designated.</p> <p>3. States — Legislature—Officers—Appointment Of. — When the power to appoint is given by the legislature to a described person or body, the authority so confided can not be surrendered to or transferred to any other person or body.</p> <p>4. Statutes — Construction Of — ¡When Different Statutes to be Read Together. — Statutes which are not inconsistent with one another and relate to the same subject matter should be construed together, and effect should he given to them all, although they contain no reference to one another and were passed at different times.</p> <p>5. Statutes — Construction Of — When Different Statutes to be Read Together. — The Workmen’s Compensation Act created a board and provided that the Governor might appoint the board and did not require that he should send the name of his appointees to the Senate, but section 3750 of the Kentucky Statutes, providing that all persons appointed by the Governor shall hold office subject to the advice -and consent of th© Senate, must be read in connection with the act, as it only adds to or supplements its -provisions.</p> <p>6. Statutes — Construction Of. — An act which gave the -Governor the right o-f appointment, but made no provision for sending the appointment to the Senate, did not give the Governor the exclusive right of appointment in view -of section 3750.</p> <p>7. Statutes — Construction Of — Meaning of the Words “Unless Otherwise Provided.” — Where a statute declared that “unless otherwise provided,” -all appointments made by -the Governor should b-e sent 'to the Senate, an act creating an officer that merely gave the appointment to the Governor did not make other provision in the meaning of or in conflict with the words “unless otherwise provided.”</p> <p>8. Statutes — Definitions—“Unless Otherwise Provided.” — The word “otherwise” means in a different manner,-or in another way, or contrarily. ’ .</p> <p>9. Statutes — Construction Of — Names of Officers Appointed by the Governor to be Sent to the Senate — When.—Under section 3750, all appointments made by the Governor of officers not required to be elected by the people, whether to fill a vacancy or as original appointments, must be confirmed by the Senate, under -section 3750, unless the -act creating (the officer otherwise provides.</p> <p>10. Statutes — Contemporaneous Construction — Application Of. — The doctrine of contemporaneous construction i-s a- useful aid 'in the interpretation of statutes of doubtful meaning, but in looking to this aid, the courts -do not surrender to executive or other officers the power to interpret for thems-elvas the meaning of statutes. They merely resort to contemporaneous construction as an aid when the statute is of doubtful meaning.</p> <p>11. 'Statutes — Contemporaneous Construction — Application Of. — When the meaning of the -statute is clear -and its language free from ambiguity, and from its reading no mistake can be made as to its intention, no amount of contemporaneous construction will be allowed to give the -statute a meaning or purpose inconsistent with the intention and meaning of the law as found in -the -statute itself.</p>

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

<p>1. States — State Fair — Other Agencies of tbe State — Power They May Exercise. — The State Fair and other like agencies of the state, created by the legislature as a matter of convenience to enable the . state to perform functions that it must confide to some body, are agencies of .limited authority, and when it becomes necessary to ascertain their powers, duties and liabilities, the Iegislatve acts creating them must he loo'ked to.</p> <p>2. States — 'State Fair — Other State Agencies — Power to Create Debts and Mortgage Property. — Nothing less than an express grant of power by the legislature will enable the 'State Fair or other like agency to create any indebtedness or mortgage the property under its control. Such power will not he conferred by implication.</p> <p>3. States — Indebtedness Against — -How May Be Created — Legislature Only Authority. — The legislature of the .state is the only authority competent to create an indebtedness against the state, :hu't it may grant to agencies created by it the power to do .so within .the limtations of the Constitution.</p> <p>4. States' — Appropriation by Legislature — -Interest-Bearing Warrants. - — The state may make appropriations and if it has not the money in the treasury to pay them, may issue interest-hearing warrants until the money -has been placed in the treasury.</p> <p>5. States — .Bonded Indebtedness Against — Power of Legislature to Create. — The legislature cannot, except in the manner provided in the Constitution, create any bonded indebtedness against the state, nor can it authorize any state agency to create sucib. an indebtedness.</p>

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

<p>1. Parties — Numerous Parties. — Section 25 of the Civil Code does not confer jurisdiction hut only permits one or more of the proper parties to an action in a court having jurisdiction of the subject matter, to sue or defend for all under two states of case: (1) where the parties having a common or general interest in the subject matter of the litigation are many, and (2) where the parties to an action are numerous and it is impracticable to bring them into court within a reasonable time.</p> <p>2. Appeal and Error — Circuit Courts — Jurisdiction.—The circuit courts of this state, having jurisdiction of all matters in law and equity, except in actions for the recovery of money or per sonal property when the value in controversy is $50.00 or lesa, have not jurisdiction of a case where numerous claimants against a single defendant seek only several personal judgments for the amounts of their respective claims, none of which amounts to $50.00 even though all of such claims arise -from a common cause and involve the same question of law and similar questions of fact.</p>

<p>1. Insurance — Double Indemnity — Beneficiaries.—A combination accident insurance policy which insures both the assured and beneficiary against injury or death through certain named accidents, and contains a double indemnities clause, which reads: “If the assured shall sustain such injuries , . . then, and in such event only, the company will pay double the amount otherwise payable under the preceding sections,” confines the double indemnities to the assured, and the beneficiary who is also insured in the same policy cannot recover double indemnified* though killed in such accident as would have entitled the assured to the benefits of such clause had he met death in like manner.</p> <p>2. Insurance — Double Indemnity — Beneficiaries.—Where the policy designates the person who takes it out as the assured, and tho person to whom the indemnities are payable in case of the death of the assured, beneficiary, _ and then limits the double indemnities to the assured, the beneficiary is entitled only to the sum provided in that part of the policy which insured her against death by accident.</p>

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

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

<p>1. Perpetuities — Restraint on Alienation — What Is Not. — Where a testator gave to his son .the fee, subject to the life estate of his mother, coupled with the provision that the son should not sell or dispose of the estate for fifteen years after the death of his mother, the restriction was reasonable and valid.</p> <p>2. Wills — Construction of the Words “Sell or Dispose.” — Where a testator gave to his son the fee in real property, subject to the life estate of his mother, and to the condition that after the death of his mother he should have “no power, however, to sell or dispose of any part thereof until* fifteen years” thereafter, this restriction did not prevent the son during the fifteen years from disposing of the estate by will, and if he had died intestate it would have passed under the statute to his heirs at law.</p> <p>3. Wills — Construction of the Word “Sell.” — If a testator simply prohibits the sale of the devised property during a specified time, this" prohibition would not deny the devisee the right to dispose of it by will.</p> <p>4. Wills — Construction of — Intention of Testator.- — In construing the meaning of the words "sell or dispose,” 'the intention of the testator in using them will control, and where it appears that he only intended to prevent the devisee from depriving himself during the restricted period of the use and enjoyment of the property, by sale or disposition of it, the devisee might within that period dispose of the estate by will, and upon his death, within the period, his devisee would take the estate.</p>

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

<p>1. Municipal Corporations — Annexation of Territory — Res Judicata. —In a suit for annexation of territory to a city of the fourth class, a plea of res judicata does not present a good defense where the former suit for the same purpose was determined more than two years before the commencement of the action in which the plea is interposed.</p> <p>2. Municipal Corporations — Annexation of Territory — Burden of Proof. — Where a majority of the voters and real property owners in a territory proposed to be annexed, remonstrate against the annexation, the burden is upon the city to show that the adoption will be to the advantage of the city and will not cause material injury to the owners of real estate in the proposed extension.</p> <p>3. Municipal Corporations — Annexation of Territory — Taxation.— Where property owners oppose the annexation on the ground that their property will suffer material injury, and the only injury, if any there be, which the evidence tends to show, would result to such owners by reason of the annexation, is the burden of municipal taxation, the annexation should be made because such taxation is not an injury, within the meaning of the statutes gov erning annexation cases.</p>

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

<p>1. Landlord and Tenant — Lease—Use of Outer Walls — Signs.—In the absence of a contrary provision in the lease, the lessee lias the exclusive right to the use of the outside walls of the portion of the building covered by his lease, for advertising purposes, to the exclusion of a lessee of another part of the same building.</p> <p>2. Landlord and Tenant — Lease—Use of Outer Walls — Signs.—The lessee of a part of a building has no right to occupy with signs, or for any other purpose, the outside walls not inclosing his part of the leased premises, and where there are different tenants of the several stories or floors of a building, the tenant of one story or floor has the right to prevent the tenant of another story or floor from placing signs upon the walls outside of his. story or floor.</p> <p>3. Landlord and Tenant — Lease—Use of Outer Walls — Signs.—In the absence of restrictions in the lease, the landlord has no righr, to permit signs or advertisements of other parties to be placed upon the outside walls of that portion of the building covered by the lease.</p> <p>4. Landlord and Tenant — Lease—Use of Outer Walls — Signs—Injunction. — The tenant of a lower story is not entitled to an injunction requiring the tenant of an upper story to remove a sign in the absence of a showing that the sign itself extends below the ceiling of the lower story.</p>

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

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

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

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

<p>1. Husband and Wife — Selection of Domicile. — Tbe selection of tbe matrimonial domicile ordinarily rests with tbe husband, but this selection on bis part must not be unreasonably or arbitrarily exercised. He should have due regard for the comfort, welfare, safety and peace of mind of his wife.</p> <p>2. Husband and Wife — Abandonment of Husband. — The wife is justified in abandoning her husband and his home when she is forced so to do to protect her life or health, or where she has reasonable grounds for believing that injury might result from her remaining there.</p> <p>3. Husband and Wife — Abandonment of Husband. — That the husband refuses to permit his wife, who had abandoned him, to return to his home with a niece and nephew she has reared, each of whom is about twenty-one years of age, is not sufficient ground ior her remaining irom her. husband, where the iather of such children is living and has a home to which they can go.</p> <p>4. Husband and Wife — Marriage Contract. — The obligation taken by parties to a marriage contract' should not be abandoned or disregarded upon slight causes, real or imaginary.</p>

<p>1. Deeds — Undue Influence — Mental Capacity. — In an action to set aside a deed upon grounds of mental incapacity and undue influence, where the evidence is so contradictory that some doubt necessarily remains in the mind of the court whichever way it may be decided, the conclusion of the chancellor will be affirmed.</p> <p>2. Deeds — Undue Influence — Mental Capacity. — Where, contrary to his oft-expressed purpose, and at her urgent and often ill-tempered solicitation, decedent conveyed property to a daughter practically to the exclusion, of other children, evidence! as to mental incapacity and undue influence being about equally divided, the conclusion of the chancellor that the deed was procured by undue influence was ulot be overruled. .</p>

<p>1. Schools and School Districts — Employment and Dismissal of Teachers. — Where the schools of a city of the fourth class are organized and operated under the general school laws of the state rather than as city schools under section 3588, of the statutes, or the optional commission form (sec. 3587a, Ky. Statutes), the power of the school board to employ and dismiss teachers is defined by section 4474 rather than section 3591 or sub-section 14 o£ section 3587a, Kentucky Statutes.</p> <p>2. Schools and School Districts — Removal of Teachers. — Under section 4474, Kentucky Statutes, the board of trustees of graded common school districts has the power to dismiss or remove a principal or teachers without notice or cause. Hence, a principal of a graded common school district who was dismissed without notice after being employed by the Board of Trustees has no right of action for breach of contract since this provision of the statute must be read into his contract of employment.</p>

<p>1. Frauds, Statute of — Agreement Establishing Boundary. — Where ■the dividing line is uncertain and there is a bona fide dispute as to its location between adjoining landowners, who agree on tlie dividing line and execute the agreement by marking the line or building a fence thereon, such agreement is not prohibited by the statute of frauds, nor is it within the meaning of the provisions .of the law regulating the manner of conveying real estate, since the parties do not thereby undertake to acquire and pass title to real estate, as must be done by written contract or conveyance, but simply by agreement to fix and determine the situation and location of the thing that they already own, the purpose being to identify their several holdings by something agreed on, and to make certain that which they regarded as uncertain.</p> <p>2. Boundaries — Agreement—Possession Thereunder. — An agreement fixing boundaries, followed by possession with reference to the •boundary so fixed, is conclusive on the parties, although the possession may not have been for the full statutory 'period, it being sufficient to show that the dividing line was actually established, and thereafter recognized and acquiesced in by the panties for «. considerable time.</p> <p>3. Boundaries — Action—Agreement—Evidence.—In certain consolidated actions involving the title to land, evidence considered and held to show that the grantors of plaintiffs and defendants agreed upon and established a dividing line between their farms.</p>

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

<p>1. Taxation — Inheritance Taxes — Collection.—The ’Commonwealth is authorized through its revenue agent to institute such proceedings as may he necessary to secure the collection of inheritance taxes, provided that the estate is delinquent in the payment of said faxes</p> <p>2. Taxation — Inheritance Taxes — Appointment of Appraiser. — On the motion of a co-administrator an inheritance tax appraiser was appointed and his appointment was recognized toy the Commonwealth, the court in which the proceedings were pending, the fiduciary and the beneficiaries. Held, that said appraiser was a de jure officer and his actions as such appraiser are valid, though the administrator upon whose motion he was appointed was later removed.</p> <p>3. Taxation — Inheritance Taxes — Appraiser—Proceedings to Collect Tax. — Within eighteen months after his appointment as an inheritance tax appraiser in pending proceedings the appointee filed his report fixing the value of the estate, to which exceptions were filed. At the expiration of eighteen months these proceedings were still pending on the exceptions, as likwise on a motion by the county attorney to confirm the appraiser’s report: Held that it being impossible to know the am'ounf of taxes payable by tbe fiduciary or beneficiaries tbe estate was not delinquent at the end of eighteen months following the death of decedent.</p> <p>4. Taxation — Inheritance Taxes — When Estate Not Delinquent in Payment. — Tbe fiduciary, within three months after tbe court bad confirmed its appointment, as administrator, filed a complete report of tbe estate of its decedent, together with tbe charges thereon and paid the inheritance tax on pecuniary legacies and legacies of securities. The value of the remainder of the estate for inheritance tax purposes being undertermined at tbe expiration of eighteen months, through no fault on its part, the estate was not delinquent in the payment of inheritance taxes.</p> <p>5. Taxation — Inheritance Tax Appraiser — Appointment.—An inheritance tax appraiser may, under certain circumstances, he ap- . pointed within three months following the death of decedent.</p> <p>6. Taxation- — Inheritance Tax Appraiser — -Appointment—Proceedings to Collect Tax. — -Where the statute -authorizes the appointment of an inheritance tax appraiser hy the court, in which tax proceedings- -are pending., -appointment by the court in which th-e will was probated and various motions and orders made and entered relative to the estate, participated in by the Commonwealth, the fiduciary and beneficiaries are such tax proceedings as are contemplated by Ky. Stats., sec. 4281k.</p> <p>7. Taxation — How Suits in N-ame of -Commonwealth May be Brought. —Suits instituted in the name of the Commonwealth and for its benefit must be brought on the relation of those authorized to act for the Commonwealth, -but no relator was necessary in the tax proceedings pending -before the county -court in the instant suit, as a suit may never be necessary in the settlement of said taxes.</p>

<p>l1. Criminal Lav/ — Conviction of Youth Over Eighteen Years of Age— Judgment. — Young men over eighteen years of age, convicted oE felony, should not be sentenced to the house of reform at Green-dale but to the reformatory at Frankfort; but if the trial court at the instance of such defendants sentence them to the house of reform and they obtain their discharge from that institution by habeas corpus before the expiration of the term, the trial court may, upon motion of the Commonwealth's attorney, at a subsequent tenm, enter a judgment to conform to the statutes in such oases, sentencing the defendants to the reformatory at Frankfort.</p> <p>2. Criminal Law — Conviction of Youth over Eighteen Years of Age— Jurisdiction. — The trial court does not lose jurisdiction to enter a proper sentence where it erroneously sentenced a youth over eighteen years of age to the house of reform at Greendale, but may, upon application of the Commonwealth’s attorney and proper notice to the defendant, enter a proper sentence at a subsequent term.</p> <p>3. Criminal Law — Improper Sentence to House of Reform — Judgment. —Where one is improperly sentenced to the house of reform instead of to the reformatory at Frankfort and serves some part of the sentence in the house of reform, and the judgment is thereafter corrected and the defendant is sentenced to the reformatory at Frankfort, he should be given credit for the time served in the house of reform.</p>

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

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

<p>1. Infants — Abandonment—Jurisdiction.—Under the provisions of Kentucky Statutes, section 331Í-1, making it a felony for the parent of any child or children residing in this state to “leave, desert or abandon” such child or children, the father of a child in the sole custody of the mother having an actual residence m this state, who wilfully fails or refuses to contribute anything to the support of such child may, notwithstanding his residence and citizenship in another state, be indicted for the abandonment of such chila by a grand jury of the county of the child’s residence in this state and tried for such offense in the circuit court of such county, if jurisdiction of his person for purposes of the trial be -legally obtained through its process.</p> <p>2. Infants — Abandonment—Ingredients of Offense Denounced by Statute. — Abandonment of the child by the parent to constitute the criminal offense denounced by the statute, supra, must contain two essential ingredients, viz.: Separation from the child, and failure to supply its needs; mere absence from one’s child does not constitute the offense, but it begins with and continues through the duration of the child’s dependence and as long as there is a failure on the part of the father to perform his parental duty to the child.</p> <p>3. Infants- — Abandonment.—The fact that the mother of the child and wife of the father, while they and the child were on a visit to her parents in this state, insisted upon his becoming a resident of this state or refused to return with him or take the child to his home in Ohio, whatever may have been its effect upon their marital relations, did not justify his abandonment of the child, or relieve him of the duty of continuing to provide for its support.</p>

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

<p>1. Appeal and Error — Amount in Controversy — Jurisdiction to Enforce Tax Lien. — In a suit by a city to enforce a statutory lien for taxes amounting to $85.00, this court has jurisdiction of the appeal of the city under section 950, of the Kentucky Statutes, providing that appeals may he taken as a matter of right in all cases where the right to enforce a statutory lien is directly involved. •</p> <p>2. Taxation — Board of Supervisors — Appointment and Meeting.— Although section 3542, of the statutes, provides that the hoard of - council in cities of the fourth class shall, before the Thursday following the second Monday in May in each year, appoint a hoard of supervisors who shall meet on that day and perform their duties, if the council fails to appoint a hoard before the date fixed or the hoard appointed fails to act, the council may thereafter and during the year appoint a hoard and the board so appointed may act, as under the statute any failure or informality in the appointment, meetings or proceedings of the hoard does not affect the validity of the tax.</p> <p>3. Taxation — Board of Supervisors — Appointment and Meeting of.— If the supervisors appointed fail to qualify or meet, others may he appointed in their place as often as the necessity requires until supervisors are found who will meet and perform the duties of the office. The essential things are that the supervisors shall he appointed by the hoard of council, and that notice of the time and place of their meeting shall be given, as required by the statute.</p>

<p>1. Homicide — Arrest—Instruction on Prosecution of Deputy Sheriff for Murder. — In a prosecution of a deputy sheriff for murder of a -woman while engaged in a difficulty with her husband, where it did not appear that the husband’s pistol was concealed, or that he had theretofore attempted to use it, evidence that the deputy sheriff said, “You have a pistol; give it up,” did not entitle him to an instruction on his right to arrest the husband, no crime • having been committed in his presence, and the circumstances not being sufficient to show that he even intended to arrest the husband, much less that the husband knew or was informed of such intention.</p> <p>2. Homicide — Appeal and Error — Evidence—Character of One with Whom Accused is Engaged in Difficulty at the Time of the Homicide of Another. — In a prosecution for homicide the Commonwealth contended that the accused either shot the deceased intentionally, or shot her accidentally while shooting at her husband. The accused claimed that he did not shoot the deceased at all, but if he did shoot her, he shot her while acting in self defense as against the husband. The husband testified that he fired the first shot, but not until after the accused had attempted to draw his pistol: Held, that the reputation of the husband as a violent and dangerous man was admissible on the question whether the accused believed, and had reasonable grounds to believe, that he was then and there in danger of death or great bodily harm at the hands of the husband, and the case being a doubtful one on the facts, the rejection of such evidence was prejudicial error.</p>

<p>1. Contracts — Conveyance of Real Property in- Consideration of Care and Attention. — a father and mother conveyed their real property to two sons .in consideration of the sons providing the parents a home, care and attention; the father went to visit a daughter and while there fell sick, and shortly thereafter died. During his sickness ,^e sons promised the daughter, who was then waiting upon the father, in his sickness, that they would pay her for her services in taking care of him, and she rendered the services with the expectation of receiving compensation. Such facts do not bring the casé, within the familiar rule prohibiting a recovery of one relative of another for care and attention, where they live together as one family for the mutual advantage of all.</p> <p>2. "Contracts — Conveyance of Real Property in Consideration of Care and Attention. — As the evidence for the plaintiff, uncontradicted, establishes an unconditional promise on the part of the sons to pay their sister for the care and attention furnished the father whom they were bound to support, maintain and care for, the plaintiffs made out a prima facie case which the court should have suomitted to the jury.</p>

<p>1. Officers — Highways—Delivery by Road Engineer of Records of Books and Papers — Injunction.—Injunction will lie, at the suit of the county judge, to compel a county road engineer whose term of office has expired and right to continue therein ceased, to surrender to the former all books, vouchers'and other property belonging to the county relating to or used in the performance of his work on its public roads while in office; and also to prevent him from interfering with th§ work of the agents of the county appointed by the judge of the county court to control and maintain its-public roads.</p> <p>2. Officers — County Road Engineer — De Facto Officer. — Notwithstanding the appellant’s previous appointment by the county judge to the office of county road engineer and the approval of such appointment by the fiscal court, he was not entitled to continue in the performance of its duties, as a de facto officer, during such vacancy as may have resulted from the expiration of the term for which he was appointed, as he failed, before taking the office under the appointment or during his incumbency thereof and before the expiration of the term of his appointment, to either execute the bond or take the oath of office required by law and the order of the county court.</p> <p>3. Officers — De Facto Officers. — A de facto officer is one who discharges the duties of an office under color of title. One who, having been elected or appointed to an office, assumes to exercise its duties without having qualified or attempted to qualify, is without color of title, and is not a de- facto officer.</p>

<p>.1 Highways — Public Highway — To What Word Refers. — The word public highway as used in section 1308, Ky. Stats., refers to highways, without the limits of cities and towns, and not to the streets within cities and towns.</p> <p>2. Statutes — Construction.'—A statute should be construed, if practicable, to make all of its provisions harmonious, and to remove repugnancies in it.</p>

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

<p>1. Appeal and Error — When C®urt Will Not Ecmand Equity Case.— This court will not remand an equity case to enable parties to take prdof ujion an issue directly involved and essential to the right of recovery or defense, when the one upon whom the burden rested to establish such issue declined and failed to introduce any proof whatever, although in some special cases, in which peculiar equitable grounds exist, there may be a direction for further preparation.</p> <p>2. Judgment — Correction and Review. — A judgment will not be corrected after the expiration of the term at which it was rendered, either upon' motion or petition, for a mistake or oversight, unless such mistake or oversight is shown by the record to exist. The manifestation of such mistake or oversight by evidence aliunde t'he record is not permissible in the absence of fraud.</p> <p>3. Action — Splitting Causes of Action — Parties.—Parties are not permitted to split their cause of action or defense, and when the parties are the same, or in privity, a second suit may not be maintained upon a cause which existed at the time of a former one between the same parties or their privies involving the same subject-matter.</p> <p>4. Vendor and Purchaser — Forfeiture—Restriction Contained in Deed. —The right to insist upon a forfeiture because of a conveyance by the vendee in violation of a restriction contained in his deed forbidding such conveyance during the lifetime of the vendor is possessed only by the vendor and ceases at his death, unless otherwise barred, before then, and no such proceeding can be maintained by his assignee after his death.</p>

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

<p>1. Criminal Law — Appeal and Error. — A verdict of guilty will not be reversed where upon a consideration of the whole case it satisfactorily appears that accused has had a fair and impartial trial and his substantial rights have not been prejudiced.</p> <p>2. Criminal Law- — Identification of Accused by Voice. — The voice is a competent means of identification and may be made the basis of the conviction of one charged with a criminal offense, especially where accused wore a. mask at the time the crime was committed.</p>

<p>1. Mines and Minerals — Rent-—Estoppel—Forfeiture.—In an oil and gas lease dated January 28, 1916, provision was made for the payment of rent quarterly in advance until the completion of the well. None of these payments was made as specified, one being 275 days overdue; all the payments were accepted without objection; oil was discovered on an adjoining tract of land July 30, 1918; the installment due July 28, -1917, reached lessor when about twelve days overdue, but he refused to accept it; Held, that by their course of dealing the lessor was estopped from claiming a forfeiture because of delay in the payment of the last installment, in the absence of notice that he would elect to declare the lease forfeited.</p> <p>2. Mines and Minerals — Rent—Forfeiture.—The courts generally hold lessees in oil and gas leases to a strict compliance with the terms of the lease, and unless the lessor by his acts or conduct has induced or led the lessee to believe that the payment of rentals will not be required when due the lessor has the right in the case of default in the payment of any installment of rent to declare the lease forfeited.</p> <p>3. Mines and Minerals — Rent—Forfeiture.—Where lessor accepts rent past due' and does not require strict conformity to the lease as to payment of rentals, if he desires to forfeit the lease fof failure to promptly meet these payments, equity requires that reasonable notice of this intention be given.</p> <p>4. Mines and Minerals — Default in Payment of Rent — Waiver.—Receiving rent after default made will be a waiver of the right .to declare a forfeiture for failure to pay the rent at the time stipulated in the lease.</p>

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

<p>Pleading — Sufficiency.—In this case though the allegations of the petition are meager and indefinite and a motion to require more definite statements would be sustained, yet the averments .state a •cause of action upon a demurrer.</p>

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

<p>1. Action — Multiplicity of Suits. — Where several actions a-re brought in the .same court by the same or different pl-aintiffs aJgainis't the -same or different defendants, and the iss-ue-s of law and fact are ithe same in ea-ch case, the court may try them together, although a separate judgment in each ease -may be found necessary.</p> <p>2. Eminent Domain — -Exception to Commissioners’ Report — -Burden of Proof. — In a proceeding to condemn land for a public use, the parly filing exceptions to the report of the commissioners appointed to assess tbe damages sustained by the landowners, has the burden of proof and will be entitled to the closing argument on the trial by a jury of the issues of fact raised by the exceptions; and as in -this- case the appellant land-owners-, wh-o alone filed exceptions to the report of the commissioners, were by the friar court refused the ri-ght to assume the burden of proof, and, also, the right to close the argument to the jury, these rulings constitute error so prejudicial to them as to compel the reversal of the judgment.</p>