Volume 188 — Kentucky Reports

<p>1. Trial — Giving Instructions in Civil Cases. — In a civil cause, it is not the duty of the court to give instructions, which are not requested by the parties, though it may do so, and if it undertakes to give an instruction upon an issue in the case, upon its own motion. it must give a correct one. If there are several issues in a case, and the court, upon its motion, undertakes to instruct upon one of the issues, it is not a ground of complaint, that it does not instruct upon all the issues.</p> <p>2. Trial — Giving Instructions in Civil Cases. — In the trial of a civil cause, if a party ^esires an instruction upon a certain issue, he must offer an instruction upon that issue, and if he elects not. to do so, it is considered that he has elected to take his chances with the jury, without an instruction upon the issue, and can not, thereafter, be. heard to complain of a failure of the court to instruct upon the issue.</p> <p>3. Drains — Construction of Ditch — Compensation to Intervening Pro prietor. — Sub-section 30, of section 2380, Ky. Stats., does not authorize a landowner, whose lands have been assessed for the construction of a public ditch, to ■ construct a lateral ditch from his lands to the ditch over the lands of an intervening proprietor, to drain his lands of water, which does not naturally fall or flow thereon, nor in any event, without compensation to the intervening proprietor, if any damages are suffered, by reason of the construction of the lateral ditch.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>1. Seduction — Evidence to Sustain Conviction.. — To sustain a conviction under section 1214 of the statutes for seduction under promise of marriage, there must be evidence to show that the female yielded to the unlawful intercourse because of and under a promise of marriage and that the promise to marry was not a conditional one; and tlie evidence being sufficient to support these necessary issues the court did not err in refusing to peremptorily instruct for the defendant.</p> <p>2. Seduction — Character for Chastity. — The fact that-the prosecutrix had at one time become unchaste will not defeat a conviction where it is shown, by the evidence that for more than a reasonable time preceding the seduction she had been a woman of chaste character.</p> <p>3. Seduction — Evidence—Letters.—An- objection to the admission of evidence must point out that which is claimed to be incompetent and it will not avail an objecting party to make a general objection to testimony as a whole when part is competent, although other parts may be incompetent. Hence the court did not err in overruling an objection to the admission of letters from defendant to prosecutrix, parts of which were competent, although other parts may have been incompetent.</p> <p>4. Criminal Law — Examination of Witness by Court. — Where the court conducted a preliminary examination of a witness in an adjoining room, to test the competency of an offered letter, defendant’s attorney being present, but he being absent, the record showing affirmatively that his substantial rights were not prejudiced, the verdict will not be reversed on this account.</p> <p>5. Criminal Law — Instructions.—Where there is evidence In a trial under an indictment for the commission of a statutory crime of all facts essential to a cpnviction under the statute as construed by the court, it is not in all cases incumbent upon the court to incorporate all such essential facts in its instructions to the jury if they are in conformity with the law and where they follow the language of the indictment, which in turn, follows the language of the statute.</p>

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

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

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

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

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

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

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

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

<p>1. Divorce — Abandonment—Insufficiency of Evidence. — In this action by the husband against the wife for divorce on the ground of abandonment of one year, evidence examined and held insufficient to entitle him to a divorce.</p> <p>2. Divorce — Evidence Insufficient to Entitle Husband to Divorce.— Where, as in this case, it is made to appear from the evidence that marital troubles between the husband and wife, leading to his leaving the wife and their two daughters in possession of the family home and taking up his residence at another place, were as much caused by the habitually sullen, resentful manner of the husband toward the wife, his irritable temper, lack of affection for and neglect of her, as by the wife’s violent, and at times, ungovernable temper, the chancellor was justified in holding that the husband was as much to blame as the wife for their separa tion; therefore the divorce sought by the husband was properly refused.</p>

<p>1. Schools and School Districts — Mandamus—Pleading.—In this action brought by appellants under Ky. Stats., section 4464, as amended by Act 1916 (Chap. 100, page 651, Acts 1916) to compel by mandamus the appellee, Board of Trustees of the Bromley Graded Common School District, either to pay in the Ludlow Graded High School the tuition of a daughter of each of them, who had completed the full course of study in the Bromley Graded Common School, or to establish and maintain for their benefit and that of other children of the district a graded high school ait Bromley. Held, that the action of the circuit court in sustaining a general demurrer to the petition, and in dismissing it upon the failure of appellants to plead further, does not constitute reversible error.</p> <p>2. Schools and School Districts — Pleading.—Notwithstanding its allegations that appellants’ daughters had completed the eight grades and full course of study prescribed for the pupils of the Bromley Graded Common School and were “prepared and eligible to enter a graded high school” for the purpose of obtaining the further and higher education provided by the common school laws of the-state, the petition was and is fatally defective m failing to further allege that the two children for whom instruction is sought in the high school are of or within the age fixed by the common school law for entering the graded high school, viz.: the years of six and eighteen, inclusive.</p> <p>3. Schools and School Districts — Pleading.—The averment of the petition as to the eligibility of the children to enter the high school is but a conclusion of the pleaders, based solely upon the fact of their having completed the course of study in the common graded school. But this they may have done and thereby become eligible on that one ground, yet he ineligible to enter the high school because of their having in the meantime passed beyond the age for continuing their education in the high school. Mere conclusions of law, deduced by the pleadex" from facts not stated, may not be pleaded. It is required that the facts constituting the cause of action or defense, be set out in the pleading.</p>

<p>1. Appeal and Error — Pleading—When Rejected Pleading Will Be Considered on Appeal. — Where the lower court in an equity case erroneously refused to permit an amended pleading to be Sled, but made it a part of the record, this court will treat the tendered amendment as if it had been filed.</p> <p>2. Evidence — Construction of Sub-section 3, Section 606, of the Code, r —The provision of section 606 of the Civil Code' that no person shall testify for himself in chief, after introducing or taking other testimony for himseu, will not be enforced when it affirmatively appears that the other party was not prejudiced by the failure to introduce evidence in the order specified in the section.</p>

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

<p>1. Libel and Slander — Accusing Woman of Fornication or Adultery. —It was not per se actionable at common law to orally accuse a woman of fornication or adultery, but this rule has been changed in this state by section one of the Kentucky Statutes.</p> <p>2. Libel and Slander — Words Slanderous Per Se. — Words orally spoken in order to be slanderous per se must clearly and unequivocally import the particular accusation, but this does not mean that they must expressly do so. If the only reasonable interpretation of. which they are capable imports "the ’ accusation, it will be sufficient.</p> <p>3. Libel and Slander — Accusing Woman of Fornication or Adultery. —In an action for slander, under section 1 of the statutes, which makes it actionable per se to charge a female with fornication or adultery, it is not necessary that the charge be made in direct, specific language, but it is sufficient if the ordinary meaning of the entire words used would be calculated to impress the -hearers with the belief that the speaker intended to charge unchastity.</p> <p>4. Libel and Slander — Adulterous Conduct Charged — Pleading.— Where the petition charged that defendant had maliciously and in the presence of others, said: “You often went to Doctor Duvall’s office, pulled the blinds down and locked the door, and . stayed for hours, and got the medicine you went for. You are a bitch and I can prove it” — held sufficient to prefer a charge of unchastity and adulterous conduct.</p>

<p>1. Guardian and Ward — Compromise and Settlement — Authority o' Guardian. — Under Kentucky Statute's section 2030, the guardian of an infant, wun leave of court, may compound a debt or demand, or seule or compromise any controversy concerning the lands of his ward, when the interest of the ward will he sub-served thereby.</p> <p>2: Guardian and Ward — Compromise and Settlement — Approval by the Chancellor. — In an action asking the chancellor’s approval of a compromise agreement, entered into between executors and trustees appointed by" the testator, the adult parties in interest and the guardians of, the infant remaindermen, by which a suit contesting me will was withdrawn and other litigation was dismissed settled, tne circumstances and terms of the agreement considered and held that the compromise was in the interest of the infants, and was properly approved by the chancellor.</p> <p>3 Appeal and Error — Decisions Appealable — Final Judgment. — A judgment entered pursuant to a compromise agreement, providing that not more than $8,300.00 shall be paid to counsel for contestees, including tué fee to the guardian ad litem, is not a final order from which an appeal by the guardian ad litem will lie, since it does not finally determine the amount of his fee, and until that is done, the court cannot tell whether he has been prejudiced or not.</p>

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

<p>1. Adverse Possession — Constructive Possession — Boundaries.—One in possession of a portion of the boundary of. land, claiming all of it, may renounce his constructive possession of a portion of it and if another takes actual possession of that portion renounced, and claims to its boundaries, his possession of the whole of the portion renounced will become adverse to the one renouncing it, and ripen info a perfect title after the expiration of the statutorv period.</p> <p>2. Boundaries — Agreement as to Conditional Line — Acquiescence.— ~ Whether it is competent for parties not owning land, but claiming it only, to agree upon a conditional line so as to be binding between them is a question not determined, but if such line is agreed . upon before acquisition of title, and it is ratified and acquiesced in after title acquired it will be treated, in a controversy between tbe parties, as the true line.,</p>

<p>1. Trial — Burden of Proof. — In a suit on notes where the execution and delivery were admitted and certain affirmative defenses are set up in the answer the burden of proof is on the defendant and the court did not err in so placing the burden.</p> <p>2. Appeal and Error — Witnesses—Number of — Setting Aside Verdict. —Where the witnesses for one party greatly outnumber the others, this does not of itself show that the verdict is flagrantly against the evidence; witnesses are to be weighed and not counted and verdicts will not be set aside on mere numerical evidence alone.</p> <p>3. Appeal arid Error — Question for Jury. — In a suit involving the effect of an agreement as to the disposition of notes taken in the purchase of lumber the evidence being conflicting the issue was for the jury and not the court.</p>

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

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

<p>1. Internal Revenue — Estate Tax — -O-ut oí What Fund Payable. — -So far as the widow, heirs and distributees of decedent are concerned, -the federal estate tax is not a charge upon the personal property of the decedent, but is -payable by the whole estate.</p> <p>2. Descent and Distribution — Widow’s Property Rights — Surplus Personalty — Debts of Decedent — Estate Tax. — Under Sections 1403 and 2132, Kentucky Statutes, giving to the widow -of an intestate one-balf of the surplus of bis personal estate after the ■payment of funeral expenses', costs of administration and debts, the estate tax due the federal government is not a debt.</p> <p>3. Descent and Distribution — Widow’s Property Rights' — Surplus Personalty — Estate Tax Due Federal Government Not to be Deducted. — Since the estate -tax due the federal government is not a charge u-p-on the -personal estate of the intestate and is not a debt, the widow of an intestate is entitled to one-half bis surplus personalty without any deduction being ¡made on account of such tax except her proportionate part thereof.</p>

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

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

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

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

<p>1. Master and -Servant — Mines and Minerals — Operation of Cans.— Where an employer, engaged in operating a coal mine, owes a duty to the driver of its coal cars, to protect them from injuries by collisions, with empty cars upon the track, it, also, owes the same duty to other employees, not connected with the operation of the cars, while riding upon such cars with the drivers, if there was a custom in the mine-for employees not connected with the operation of the cars, to ride thereon, while going into, out of and about the mine, with the knowledge of the persons', . in control of the mine.</p> <p>2. Master and Servant — Assumption of Risk — Workmen's Compensation Act. — An employer, -who is affected by the Workmen’s Compensation Act, and who has not elected to operate thereunder, is denied the defense of assumed risk and contributory negligence of the employee, to an action by -the employee to recover damages for an injury attributable to the negligence of the employer.</p>

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

<p>Divorce — Grounds—Physical Condition — Evidence.—Where in an action by ithe husband against the wife for a divorce on the ground of “such .malformation on the part of the wife as ¡prevents sexual intercourse,” the only evidence bearing on the physical condition of the wife w.as furnished by two physicians by whom she was examined; one a general practitioner with little surgical experience who was unwilling positively to testify to the existence of the alleged malformation; the other an eminent surgical specialist of many years’ practice in the treatment of the -diseases of women and their genital organs, who positively testified to the non-existence of any ■malformation„of the wife, in such state of case the action of the circuit court in adjudging the ground of divorce not sustained by the weight of the evidence and' dismissing the petition of the husband, was not error.</p>

<p>1. Reformation of Instruments — Mistake and Fraud. — If by mutual mistake of tke parties, or a mistake on the part of one, and fraud or deceit ou the part of tke other, a written contract does not in its terms express the intention or purpose of the parties in executing it, a court of equity, on sufficient evidence, will reform it ,so as to conform to such actual intent and purpose. And this is true, whether the mistake be one of fact or of law.</p> <p>2. Reformation of Instruments — Mistake and Fraud; — Relief.—To obtain such relief it must be made to appear that the deluded parties were ignorant of, or under some misapprehension concerning, matters present or past, it not being sufficient that a mistake existed as to the future effect of the contract.</p> <p>3. Reformation of Instruments — Equitable Relief. — Such relief is exclusively cognizable in equity, and the issue, which was on the ordinary side of the docket, should have been transferred to equity pursuant to á motion made for that purpose; and it was likewise the duty of the court to sustain a motion to file a pleading alleging and relying upon the mistake, it being otherwise unobjectionable.</p> <p>4. Reformation of Instruments — Equitable Relief — Error to Submit Action to Jury.. — It was error for the court to submit to the jury the issue of mistake, or the construction of the writing involved, since these questions are for the determination of the judge sitting as a chancellor.</p> <p>5. Limitation of Actions — Personal Defense. — The statute of limitation is a personal defense, and unless relied on by a pleading it will not be available.</p> <p>6. Limitation of Actions — When Defense Not Barred. — Where the defense relied on, issues from and grows out of the cause of action declared on, it will not be barred as a defense, although it would be if relied ou to obtain affirmative relief.</p>

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

<p>1. Criminal Daw — There Must he Substantial Prejudice to Authorize Reversal. — A judgment of conviction in a criminal case will not be reversed for errors appearing in the record unless it affirmatively appears that tbey were prejudicial to the substantial rights of the defendant.</p> <p>2. 'Criminal Law — Statement of Case for Commonwealth. — The attorney for the Commonwealth, in his statement of the case, should confine himself to a brief recital of the facts as they will appear in the evidence and not comment on the character of witnesses that may be introduced.</p>

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

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

<p>1. (New Trial — Actions for New Trial — Filing Record Witli Petition. —In a suit under section 518 of tlie Civil Code for a new trial the entire record should he filed with the petition, unless the facts are -set -out with sufficient detail and definiteness to en-aJble the court to determine whether plaintiff is entitled to the relief sought.</p> <p>2. (Judgment — Vacating for Fraud. — An agreed judgment obtained by fraud m-ay -be vacated if facts are shown authorizing such order.</p> <p>3. Drains — Proceedings for Establishment — Notice.—In a proceeding to establish a drainage ditch persons -properly before the court are chargeable with notice of all subsequent steps taken in the proceedings.</p> <p>4. Trial — -When Parties Presumed to be Attending to -Cases.- — When duly summoned parties are presumed to be in court atten-ain'g to . their cases, either in person or by counsel, and are bound to take notice of the ste-ps taken and separate notice of each motion or s'te-p is not necessary.</p> <p>5. Drains — Parties Properly Before Court — Effect.—Under the drainage act of 1912 parties p-rc-perly before the court are deeme-d before the court for all purposes and are bound by all orders, judgments and proceedings In the case not excepted to or appealed from.</p>

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

<p>1. Corporations — ¡Subscriptions—Non-Liability for. — One wbo proposes to take stock in -a corporation on condition that the af fairs of the concern are in good shape, but who never subscribes for stock or otherwise obligates himself to take it, is not liable to the corporation or its creditors for the amount of his stock subscription, nor can he compel the corporation in which he proposed to subscribe for stock to issue stock to him.</p> <p>2. Corporations — Sutecriptions—=N-on-Liabillty.—Where one subscribes for stock in a corporation and afterwards but before the stock is issued, enters into a side agreement with a third person to let said third person have one-half of the stock he receives in consideration of such third person furnishing money, and this private arrangement is unknown to the corporation, it is not liable if it issue the whole of,the stock subscriptions to an assignee of the subscriber other than said third person.</p> <p>3. Corporations — Purchasers Without Notice of Equity. — Strangers who purchase stock in a corporation or buy the entire holdings of the corporation from the legal title holder without notice of the silent equity of another, is not bound to such other for any loss which he may sustain by reason thereof.</p>

<p>Estoppel — 'Real Estate — Apparent Title — Inducing Purchase.— Where one having title to land, by an unrecorded deed, induces another, who has no knowledge of the deed, to purchase, pay for and take possession of the land, and assigns to him a title bond executed by a third party, thus representing to the purchaser tihait the title to the property was in another and not in himself, he is estopped from asserting title through the unrecorded deed as against the purchaser or +hose claiming under 'him.</p>

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

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

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

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

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

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

<p>1. Adverse Possession — Occupation by Permission — Notice of Hostile Claim. — One entering possession of property by consent of tbe owner cannot claim title by adverse possession unless tbe intention to claim it adversely is actually brought home to the owner by such acts or .eondu.ct as would put a reasonable person on notice that a hostile claim was being asserted.</p> <p>2. Adverse Possession — Parol Gift — -Nature of Holding. — If one enters and takes possession of land under an unconditional parol gift, his holding is adverse from that time, and if continued for fifteen years, will vest the donee with title.</p> <p>3. Adverse Possession — -Parol >Gift. — When Joint Occupancy of ■ Donor and Donee Does Not Suspend the Running o-f the Statute.' —The fact that the donor occupies land jointly with the donee will not suspend the running o-f the statute of limitations, where the donor does not accompany his presence by any claim or act of ownership, but disclaims ownership and admits it to be in the donee.</p> <p>4. Gifts — Evidence.—In an action involving the right to realty which plaintiff claimed by adverse possession under a parol gift from bis uncle, evidence examined and held insufficient to show an unqualified gift of property.</p>

<p>1. Damages — Loss of Profits. — The loss of anticipated profits, which are remote, conjectural and speculative, is not an element oí recoverable damages, but, profits which are capable of legal ascertainment may be recovered, in an action for damages, especially where a breach of a contract is involved, and the parties, when making the contract, contemplated the loss of profits as being an element of the damages, which would grow out of a violation of the contract.</p> <p>2. judicial Sales — Attachment Lien Upon Land. — No more of the real estate oí a debtor should be adjudged to be sold in satisfaction of a judgment, than is necessary, unless it appears that the parcel of real estate upon which the lien exists, is not susceptible of practical division.</p>

<p>1. Trusts — Resulting Trusts — 'Consideration for Deed. — Under the provisions of section 2353, Kentucky Statutes, there is no resulting trust, in favor of the one paying the consideration for a deed, unless the grantee to whom the deed was executed was named as such without the knowledge or consent of the person paying the consideration, or unless the grantee, in violation of some trust, purchased the land and had the deed executed to him with the consideration furnished by another.</p> <p>2. Trusts — Resulting Trusts — Consideration for Deed. — In a stiit by the one furnishing the consideration to have a trust declared in his favor because the grantee took the deed in his own name, without the consent of the plaintiff, it is not necessary to allege 'Or prove either fraud or mistake in the execution of the deed', except in so far as it is necessary to show that the deed was executed to the grantee without the knowledge or consent of the ■plaintiff.</p> <p>3. Trusts' — Resulting Trusts — Evidence.—In order to establish such a trust the evidence of the facts necessary to create it must be clear and convincing.</p> <p>4. Trusts — Consideration for Deed. — Evidence examined in this Cia&e and held that it is sufficient to support the finding of the chancellor that the wife furnished the consideration for the deed, and that it was executed to her husband without her knowledge or consent, and that he in consequence held the land as her trustee.</p>

<p>1. Drains — Proceedings for Establishment. — In the trial of an action to establish a drainage ditch it was error to peremptorily instruct the jury to find for the petitioners where there was evidence in behalf of the exceptors which (brought in question the practicability, propriety, benefits and utility of the improvement.</p> <p>2. Drains — Proceedings for Establishment — Submission to Jury. — In ■a proceeding to establish a drainage ditch, where the evidence is conflicting, the court should submit to the jury, under proper ■instructions, the practicability and propriety, as well as the needs ■and resulting benefits of such improvement.</p> <p>3. Drains — ’Proceedings for Establishment — Submission to Jury.— The amendatory act of 1918 (Ey. Stats., vol. 3, sec. 2380-49), requiring 25% of the property owners to petition for a ditch, expressly excepts from its provisions proceedings instituted prior to the passage of the act.</p> <p>4. ¡Drains — Proceedings for Establishment — Trial.—Under the drainage act of 1912, trials in circuit courts are de novo and the issues should he confined to those raised in the lower court, hut where exceptions had been filed in the lower court, these exceptions upon appeal could he amended where, as in the instant case, the effect of the amendment was to reduce the limits of the territory sought to be excluded by the original exceptions.</p>

<p>Covenants — Warranty Deeds — Joint Warrantors — Liability of Grantors Signing for Interest of Named Grantor Not Signing.— Where one of several grantors named in a deed containing a covenant of general warranty failed to sign and acknowledge the deed, the other grantors were not liable to the grantee as joint warrantors of his interest in the l-and.</p>

<p>1. Drains — (Proceedings for Establishment. — In a proceeding to esfaiblish a drainage ditch, where the district approved by the viewers did not cover the extent of territory embraced in the petition seeking its establishment, persons named in the petition as the owners of land affected, who were not in the drainage area, as approved by the viewers and whose land would not be •taxed for the improvement, were not necessary parties tio the proceeding.</p> <p>2. Drains — -Proceedings for Establishment — Parties.—Where persons owning land below the month of a proposed drainage ditch tendered their petition to be made parties defendant five years after the proceedings were instituted, held, they were not entitled to he made parties at such late day. While not necessary panties, had their pleading been tendered in seasonable time, it would not have been imprrper for the court to have allowed them to be made parties.</p> <p>3. Drains — Evidence.—Evidence as -to the effect of a proposed drainage ditch on lands below the month of the ditch was incompetent and was properly rejected by the court.</p> <p>4. Drains — Proceedings to Establish — Opinions of Witnesses. — The court did not err in refusing to permit witnesses to give their opinion as to the practicability of the proposed ditch, having testified to the facts, it was then for the jury to draw its own ■ deduction from said facts and from the other evidence in the ease.</p> <p>5. Appeal and Error — Reversal—Prejudicial Error. — A reversal will not be ordered for mere error in tbe admission or rejection of testimony or in tbe conduct of tbe trial, unless said error is prejudicial to the right of the complaining party, it being well nigh impossible to have an errorless record in a contested lawsuit.</p> <p>6. Trial- — Instructions.—Instructions given by the court in a proceeding to establish a drainage ditch examined and approved.</p> <p>7. D-raims — Proceedings to Establish. — -In a proceeding to establish a drainage ditch where the exceptors without objection introduced their evidence first and were granted the concluding argument they have no ground for complaint.</p> <p>8. ¡Drains — Viewers’ Report. — The viewers’ report makes out a prima facie case for the petitioners in a suit to establish a drainage ditch.</p>

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

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

<p>1. Easements — Right of Way — Adverse User — Prescriptive Use.— While the grant of a right of way, whether made hy deed or arising by prescription -from adverse user for the statutory period, does not necessarily imply that the owner of the land may not maintain gates thereon, in the absence of express reservation of such right, whether he .should be permitted to exercise it must depend upon the intention of the parties as shown hy the circumstances of the case, the nature and situation of the property subject to the easement and the manner in which it has been used and occupied.</p> <p>2. Easements — Erection of Gates on Passway — 'Prescriptive Use.— The owner of the land may ordinarily erect gates on the pass-way where it enters and where it leaves his land. But it seems to be a well recognized rule that where the passway is acquired hy prescription and is used as an easement free from gates during the period necessary for perfecting the title, none can he erected afterward.</p> <p>3. Easements — Erection of Gates on Passway. — Evidence in this case examined and held sufficient to authorize the judgment enjoining the erection hy the landowner of gates upon the passway.</p>

<p>1. Railroads' — 'Injuries to Persons on Track — Licensees.—One who relies upon a license to use a par.t of the railroad track must prove that the place where he was attempting to use it was and had been for some considerable period habitually used by the public as a walk or passway with the knowledge of the railroad company, and until he makes such showing the railroad company owes him no lookout duty and is not responsible for injury to him unless his presence and peril on the track were discovered long enough before the injury to have enabled those in charge of the train, by the exercise of ordinary care through the means at hand, to have prevented injury to the plaintiff.</p> <p>2. Railroads — Grossings—Licensees.—A pedestrian crossing a railroad track at a point' other than a public street or way, and who is not a licensee, cannot rely upon the duty of the trainmen to give warning signals of approach to the public crossing even though he be a trespasser on the track at a point in close proximity to such public crossing.</p>

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

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

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

<p>1. Criminal Law — Motion for New Trial — Newly Discovered Evidence. — 'While a new trial will not be granted on the 'ground of newly discovered evidence which is merely cufnulative in character, or corroborative of what was testified to by defendant, yet if the newly discovered evidence is of a decisive and ■ controlling character the rule is changed, and in such case the newly discovered evidence, if there is no want of diligence on the part of the party applying for the new trial in discovering it, will authorize the granting of a new trial. Applications for a new trial are addressed to the sound discretion of the court, to be exercised according to the rules and usages of law, and the court should regard the substantial justice of the case, equally remote from favoring negligence or exacting unreason- , able diligence. This rule is especially true in capital cases and where there are other errors and irregularities appearing upon the trial and which themselves were calculated to have a bearing upon the verdict.</p> <p>2. Criminal Law — Argument and Conduct of Counsel — New Trial.— An attorney in the argument of a case to the jury should not go outside of the record for the purpose of abusing and vilifying a witness or client, nor should he state as a fact that which was not proven in the case, either by direct or circumstantial testimony, and if he should accuse the person referred to of an Independent offense which was unsupported by any testimony, direct or circumstantial, it would at least be the duty of the court to sustain an objection to it and to admonish, the jury accordingly, and his failure 'to do so would constitute substantial error authorizing the granting of a new trial.</p> <p>3. Criminal Law — “Bootlegger”—'Meaning of Term. — The term “bootlegger” is commonly understood as describing one who en- • 'gages in the unlawful sale of spirituous liquors, and an attorney • in his argument to the jury transgresses his duties in applying the term to a client or a witness when there is no evidence to . authorize it.</p>

<p>1. Husband and Wife — Execution cf Note in Foreign State — Payment. — Where a married woman executes a note in a foreign state, by the laws of which she has power to make the particular contract in her own name, so as to hind herself and her property, both real and .personal, the payment of the debt, may, through comity, he enforced in this state by the subjection of her real estate, located here, to its satisfaction. But comity, existing only as a favor or courtesy, can not he insisted upon as a right, and where to enforce the foreign law would conflict with a settled rule of public policy of the forum, it will not be done.</p> <p>2. Home'stead — Exemption to Married Woman. — A married woman owning and living upon land and occupying it with her family may claim homestead exemptions in it as provided by section 1702 of the Kentucky Statutes as against a debt contracted by her.</p> <p>3. Homestead — Conversion of Debt Paying Property Into Exempt Property. — The homestead exemption may be claimed and allowed as against a debt created prior to the acquisition of the land if it was paid for with money or property devised to the debtor, since in such case it cannot be said the debt, was created on the faith of the property invested in the homestead and the creditor has not been prejudiced by reason of the debtor converting any debt paying part of his estate into exempt property.</p>

<p>1. Contracts — (Fraud or Deceit — Grounds for Setting Aside. — Unless a party who signs a writing is misled as to the nature of the paper and signs it under such circumstances as amount to fraud or deceit it will not be sufficient grounds for setting it asido that he did not read it when he signed it and did not know what it contained.</p> <p>2. Contracts — Parol Evidence. — Where the agreement is one and entire and a part only is reduced to writing, resort to parol evidence may be had to prove the residue, but this rule applies only in cases where the writing only purports to express part of the contract, or is so incompletely expressed as to render parol evidence necessary to explain that which is unintelligible, but such evidence must not be inconsistent with the terms of the writing.</p> <p>3. Eeformation of Instruments — Evidence.—To entitle one to the reformation of a contract the evidence of .the alleged mistake must be clear and convincing.</p> <p>4. Contracts — Evidence.—-In a suit on a contract for the sale of sewing machines defendants relied upon a subsequent verbal contract. Held that the proof was insufficient to establish such contract.</p>

<p>Courts — Circuit Counts — Terms of at Two Places in County— Third Class City. — 'Section 963, of the Kentucky Statutes, providing that: “In any county having therein a city of the third class, the terms of circuit court shall he held partly in such city” has no application unless there is wholly within the county a city of the third class. Where a city of the third class is partly in two counties, the statute has no application no matter how large the city is or what part of it in population or territory is in either of the counties.</p>

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

<p>1. Limitation of Actions — Action on Written Contract — Bills and Notes — -Period of Limitation as to Notes Placed Upon the Footíng of a Bill of Exchange. — Under Kentucky Statute's, section 2515, an action on a promissory note placed upon the footing of a bill of exchange must be commenced within five years next after the cause of action accrued.</p> <p>2. Bills and Notes — When Note is Placed on the Footing of a Bill of Exchange. — The negotiation of a negotiable note before maturity places it upon the footing of a bill of exchange.</p> <p>3. Limitation of Actions — Effect on Lien of Bar of Debt. — Where a debt is barred, the lien by which it is secured is also barred.</p> <p>4. Limitation of Actions — Who May Plead Against the Enforcement of a Lien. — In an action to recover on purchase money notes and to enforce a vendor’s lien, a purchaser of the land from the vendee may plead the statute of limitations against the enforcement of the lien, although the debtor declined to do so.</p>

<p>Criimiml Law — Argument oí Counsel- — Witnesses.—Where- the . Commonwealth’s attorney i-n a closing. argument in a criminal cas-e, declares that a certain named, witness testified to a material fact, when in truth a-nd in fact the witness did not so testify, and when objected to by counsel for defendant the court sustains the attorney for the Commonwealth with the statement “that is correct,” the error is 'so prejudicial -to the rights o-f defendant -as to entitle him to a new trial.</p>

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

<p>1. Criminal Law — Homicide — Instructions — Self-Defense.—An instruction in a homicide case on the subject of self-defense in p-lace of leaving it to the jury to say fro-m the evidence whether the defendant believed -or bad reasonable grounds to believe that he w-as in such danger as authorized him to- shoot and kill, -should advise the jury that the right of self-defense depended on what the defendant believed and had reasonable grounds to believe at the time the fatal shot was fired.</p> <p>2. Criminal Law — Instructions—Defense of H-ome. — The law does not authorize a person to take the life of -another in defense of Ms property or merely because such other is forcibly trespassing on his premisos. To excuse a homicide under circumstances like this, it is essential that the shooting and killing should he believed by the person' accused necessary o-r reasonably necessary to protect himself-or hi-s family from danger.</p> <p>3. Trial — -Witnesses-—Juror May Queseion. — During trial or after case has been submitted witness may he recalled and examined by juror.</p>

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

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

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

<p>1. Criminal Daw — -Independent Offense — Evidence,.—-Testimony -of an independent offense or the details thereof are not ordinarily admissible -in a criminal trial upon a wholly distinct charge, hut such independent offense may he shown for the punpo.se of establishing identity, .guilty knowledge, malice, particularly criminal intent, or where it was a part .of a plan or system of criminal action on the part of the defendant, or where it i-s -so interwoven or connected with the one bemg tried as to be insiparabie. Nor is it a violation of the rule disallowing such testimony where the independent offense consists of one of several stages -of a continuous act constituting the offense being tried, as in case of a conspiracy to commit the principal crime.</p> <p>2. |Criminal Daw — Conspiracy—Weight and Sufficiency of Evidence. —A conspiracy 'being difficult of proof is necessarily established by the testimony of a number of circumstances constituting links -ih the formation -of the general purpose of .the conspirators all of wbieb when conisi&eirea together are sufficient to establish the conspiracy.</p> <p>3. Criminal Law — Conspiracy—'Evidence.—Upon the trial of defendants under .an indictment charging them with a conspiracy to commit murder, and committing it in pursuance thereof, it was competent to admit testimony of their words, acts and conduct to and with deceased, a deputy sheriff, or one of his po.sse, on the night before the killing, all of which indicated malice and anger on the part of defendants, 'since such testimony was relevant on the charge of conspiracy.</p> <p>4. Criminal Law — Self-Defense Instructions. — If was not error to qualify the self-defense instruction so as to deprive the defend-t ants of that right if the fight in which the killing occurred was by mutual combat or was brought on by defendants themselves first assaulting and «hooting at the deceased and his crowd, if the .testimony of the 'Commonwealth was sufficient to establish such facts.</p> <p>5. Criminal Laiw — New Trial — 'Witnesses—Impeachment.—A new trial will not he granted upon the testimony of one of the jurors as to what oocured in the jury room, except upon the 'ground that the verdict was arrived at by lot; but were the rule otherwise the impeaching testimony must be given by isome member of the jury and not appear .through the affidavit of another with whom the juror had talked.</p>

<p>1. Contracts — Actions for Breach. — In a suit for damages growing out of tile breach, of a written contract for the sale of tobacco, after a demurrer had been sustained to the petition plaintiffs were authorized to amend and sue on a verbal contract, treating tihe contract originally sued on as a memorandum of the sale, where all tile essentials of a binding contract are alleged in the amendment."</p> <p>2. Contracts — Failure to Release Crop of Tobacco — Cancellation of Contract. — The failure of the purchaser of a crop of tobacco to release a lien of attachment or 'garnishment ¡levied thereon did not operate -as a cancellation of the contract nor justify the seller in disposing of the tobacco to -others.</p>

<p>1. Contempt—Power to Punish.—All courts of record of superior jurisdiction have the inherent power -to' punish for contempt.</p> <p>2. Contempt—'Power to Punish.—The court may for contempt impose a fine of mot exceeding $30.00 or imprisonment not exceeding thirty days without the intervention of a jury, but when in the opinion of the court the indignity offered requires a greater punishment the court is required to have a jury impaneled.</p> <p>3. Contempt — False Swearing. — False swearing by a witness is such an obstruction of justice as constitutes a direct oonxemipt of court.</p> <p>4. Contempt — Power to Punish. — A chancellor is not .authorized to proceed by information and rule to punish for contempt unless he has actual or judicial knowledge that the .person proceeded against has sworn falsely.</p> <p>5. Contempt — Absence of Judicial Knowledge'. — Two witnesses testified in a divorce suit. The chancellor having been informed that their testimony w.as false the witnesses were suminoned to appear and testify on a motion to modify the divorce decree, on this hearing the witnesses gave such testimony as in the judgment of the court indicated they had sworn falsely in their original testimony, whereupon an information was filed and rule issued against said witnesses to show why they should not he punished for contempt. Held, that the court did not have such .actual or judicial knowledge of the alleged false statements as justified it in adopting such procedure.</p>

<p>On Motion to Dissolve a Temporary Injunction Granted by TIon. John C. Eversole, Judge of the Perry Circuit Court.</p>

<p>Application to Grant Injunction.</p>

<p>1. Criminal Daw — Appeal—Decision® Revdewable — Bower of Appellate Courit to Review Action of Trial Court in Overruling Motion to Seit Aside an Indictment on the Ground That tdie Accused and Member® of Hi® Race Were Discriminated Against in She Selection of a Gnand Jury. — Under Kentucky Criminal Code of Practice, section 281, providing that decisions upon dtalleinges to the pianel and for cause, and upon -motions to set aside an indictment shall not he «ubject to exception, the Court of Appeals Cannot review the ruling of the circuit court upon a motion to quash an indictment because of discrimination against persons of color in the selection of a ‘ grand jury in violation of ifche fourteenth amendment of the federal Constitution.</p> <p>2. Intoxicating Liquors — 'Violation of Local Option Law — Evidence —Sufficiency.—On prosecution of accused for having in his possession intoxicating liquors .for the purpose of salle, evidence examined and held sufficient to 'sustain the conviction.</p> <p>3. 'Criminal LaW — Evidence—Reputation of Accused — Admissibility. — There are only two ways hy which the reputation of the accused may he put in issue: (1) Where he has offered proof of his good reputation; (2) where he has offered himself as a witness.</p> <p>4. Intoxicating Liquors — Evidence—Reputation of Accused as a Bootlegger — 'Admissibility.—On a prosecution for violation of the local option law, evidence that the accused had the reputation of being a bootlegger was not admissible as substantive evidence of his guilt.</p> <p>5. Intoxicating Liquors — When Evidence That Accused Had the Reputation of Being Bootlegger Prejudicial. — On a prosecution for a violation of the local option law, evidence that the accused •had the reputation of being a bootlegger was prejudicial in view 1 of the character of evidence hy which his conviction’ was secured. ,</p>

<p>1. Appeal arnd Error — Second Appeal — Daw of the Case. — The opinion of the Court of Appeals on a former appeal is the law of the case, and matter's which might have heen brought to the attention of the court, hut were not, are concluded by the opinion, and where defendant, as a ground for reversal on the first appeal, might have relied upon the insufficiency of the reply to his answer and counterclaim, hut did not, the question is not open to consideration on a subsequent appeal.</p> <p>2. Appeal and Error — Instructions'—Prejudicial Error.' — An instruction authorizing a finding- of interest from January 26, 1917, instead of from February 15, 1917, was not prejudicial to defendant where the jury allowed interest onily from February 26, 1917.</p> <p>3. Appeal and Error — Instructions — Prejudicial Error. — Where ■plfcuintifEs were entitled to interest from a certain date as a matter of right, an instruction authorizing the jury to award interest ■in their discretion was not prejudicial to defendants.</p>

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

<p>1. Criminal Law — Motion for Continuance — Absence of Counsel.— The absence of an attorney for a defendant is not a 'ground for a continuance or postponement of a trial, unless it is made to appear to the court, that the defendant Cannot have a fair trial without the presence of such attorney.</p> <p>2. Rape — Detention of Female — Irasjpection.—Upon the trial of one indicted for unlawfully detaining a female against her will, with the intent to have carnal knowledge of her, a court is not authorized, upon the motion of the accused, to have a physical examination and inspection of her person made, for the purpose of securing evidence of her unchastity, to corroborate a claim of the. accused .that the act's ccnsiátuting the detention were done with her consent, against the consent of the female, and if she consents to such inspection, the authority of the court is unnecessary.</p>

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

<p>1. Exemption» — Failure oí Widow to Claim. — A widow is entitled to an .exemption of $750.00 out of <tbe personal estate of ber deceased husband, and even tbougb sbe may by oversight and inadvertence fail to make cfaim for sucb exemption sbe miay before final settlement of tbe estate have sucb exemption set aside to. her.</p> <p>2. (Executors and Adtaiinisitriatons — Claims Against Estate — Allowance. — Any properly proven claim against tbe estate of tbe deceased person may be presented at any timé before final judgment where there is no reason shown why the claim should not be allowed.</p>

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

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

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

<p>Officers' — Bu/Mic Officer®! — Removal of. — Where the term of an appointive officer is not fixed by statute and there is no limitation on the right of removal, he m)ay be removed at the pleasure ■ of the appointing authority without cause or notice or opportunity to be heard.</p>

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

<p>1. Partnership — Negotiable Instruments — Plea of Non Es.t Pactum. ' —In this action by appellee upon two notes alleged to have been executed by a partnership and in which appellant sued as an alleged member of the partnership, by separate answer pleaded non est factum and denied that he whs a member of the partnership1, the jury were properly advised of all the law of the ease by instructions which, in substantially correct term's, defined what constituted a partnership and told them that if they believed from the evidence the appellant wh® a member of the partnership when the notes sued on were executed, they should find for appellee; but if not then a member of the partnership they should find for appellant, unless they further believed from the evidence that, though not in fact a partner, appellant by his voluntary acts or statements held himiself out to the public and to appellee as such, and the latter was induced thereby to believe and in good faith did believe him a member of the partner* ship and, by reason thereof, accepted the notes sued on for a debt or debts owing him by the partnership, when otherwise he would no,t have done so; in which event their verdict should be for the appellee.</p> <p>2. Partnership — ¡Negotiable Instruments — Authority of Partner to Sign Note. — It was not prejudicial error for the trial court to refuse an instruction offered by appellant by which the jury, would, in effect, have been told that, although they might believe from the evidence appellant was a member of the firm or partnership sued when the notes in question were executed, they nevertheless should find for him, unless they further believed from the evidence that he authorized the signing of the firm name of the partnership to the notes by tbe partner who performed that act. It is a general rule of the law of partnership that each member of a partnership has authority to sign the name of the firm to any instrument of writing the execution of which appertains to, or is necessary in, the customary conduct of its business. Indeed, in the absence from the articles or contract of partnership of some restriction dissallowin'g or limiting such right known to the party dealing with the firm through one of the partners, the authority of the latter to .sign the name of the partnership to any paper required by law to bind it in the transaction, is implied and may be presumed and acted upon by such party.</p>

<p>1. New Trial — Motion for New Trial. — The mere fact that apposing counsel and client had .access to the papers in the case ■ from which certain depositions were missing when the record was being copied for an appeal, is not sufficient to authorize ■the court in granting a new trial under section 518 of the Civil Code, no fraud 'being alleged or shown.</p> <p>2. New Trial — Motion for Continuance. — If the record prepared by the circuit clerk was incompllete appellant should have moved this court to continue the case until such time as missing depositions could be supplied. Upon a proper showing, reasonable time will be granted for this purpose.</p> <p>3. New Trial — Motion for New Trial. — In a petition for a new trial under section 518 of the Civil Code, where it is not alleged that any fraud was practiced by the successful party in obtaining the judgment, the rights of no one under disability are involved, and no unavoidable casualty or misfortune alleged, a demurrer to the petition was properly sustained.</p> <p>4. New Trial — Motion for New Trial. — The acts complained of in a petition for a new trial having occurred subsequent to the rendition of a judgment, relief under section 518 of the Civil Code was not authorized.</p>

<p>1. Assault and Battery — Action for Assault — Appeal and Error.— In a suit for assault where tihe issues were properly sulbmiitted to tlie jury a verdict in favor of the defendant will not be reversed Where there is evidence to support it.</p> <p>2. Trial — Argument of Counsel. — .Where alleged improper remarks of counsel in his opening statement to the jury were not objected to, and there was no motion to strike same from the record a reversal will not he ordered.</p> <p>3. Trial — Argument of Counsel'. — Where the court sustained' an objection to improper remarks of counsel in his argument to the jury and admonished the jury not to consider same, the action of the court in sustaining the objection cured What otherwise might have been a reversible error.</p> <p>4. Bail — Right to Release on Bail. — Accused was arrested on a peace warrant. On his way to the jail he notified the arresting officer that the companion who accompanied himi was ready to glo on his bond, and he asked to be taken before the police judge who issued the warrant. The arrest was- made in the morning, the police judge was i-n his room, his office was ait the time in the court house and hut a few feet from the jail. Held under the circumstances defendant should have allowed accused to give bail.</p>

<p>1. Criminal Daw — Separation of Jury. — During the trial of one indicted for murder the sheriff took the jury to a skating rinik. Eleven of the jury were seated together, the twelfth man wa's permitted to assis-t the musicians and was seated about thirty feet from the sheriff and the remainder of the jury but in plain view. Held, that there was not such a separation -of the jury under the circumstances -as would warrant a new trial.</p> <p>2. Criminal Daw — Separation of Jury — -New Trial. — The mere opportunity to converse with a juror, nothing else appearing, is not sufficient to secure a new -trial, especially where, it is conclusively shown that no one talked to any member -of the panel about .the case.</p> <p>3. Criminal Daw — -Waiver of Objection to Question o-f Witness.— In the -cross-examination of a witness an objection was interposed to a question, but the court did not pass upon the objection at the time, the notation being, “Passed for the present.” It not appearing that the m-attqr was again called to the attention of the court appellant will be held to have waived -any objection he might otherwise have had to the ruling of the court.</p> <p>4. Criminal Daw — Appeal and Error. — If upon a consideration of the whole case the court is satisfied that the substantial rights -of the accused have not been prejudiced judgment will be affirmed.</p>

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

<p>Municipal Corporations — 'Exemptions from. Taxation. — Under sec* tion 4019A-10, Kentucky Statutes', one who imports. raw coffee which at the time is wholly unfit for home consumption, and puts it through several processes of refinement in the city of ■Louisville, turning out a finished product, ready for the general market and for consumption, is a manufacturer within the meaning of said statute, and entitled to exemption from taxation on his manufacturing machinery and raw material at the place of manufacture.</p>

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

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

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

<p>Contracts- — -Master and Servant — -Contract Between Carrier and Emiployees for Payment of Benefit Fund — ¡Release—Public Policy. —A Contract entered into between a common -carrier and its employees, by which an association is formed, composed of the employees of the carrier who are not required to become members, -and the purpose of which is to create and administer a fund, out of which to pay a benefit in stated amounts and at started, times, to the emiployees, who are members of the association, when disabled from sickness or injury, and a death benefit to a person selected by the employee, and when an injury is incurred from the negligence of the carrier, the employee may insist upon his right of indemnity against the carrier, -but, if after th-e injury is suffered, elects to accept the benefits to be received under the regulations of the association instead of pursuing his remedy against the carrier, thereby releases ¡his claim for damages against the carrier; the funds of the association arising from contributions paid monthly by the employee members, the carrier paying all expenses of the administration of the association, and supplying, at it-s expense, the facilities for its administration, and keeps the funds, being responsible for their safety, and agreeing to pay any deficits in the funds, arising from the contributions of the employees not being sufficient to pay the benefits, is not a contract prohibited by section 196 of the Constitution, nor is it violative of the public policy of the state.</p>

<p>1. Forcible Entry and Detainer — Traverse and Bond. — The traversor in a forcible detainer proceeding must, within three days after the rendition of the judgment, both file a traverse with and execute a bond before the officer who tried the ease in substantial com(pliance with .section 461 oí tbe Civil Code. If they are defective merely, they may be corrected on proper motion made tberetfor in tbe circuit court to which tbe appeal is taken, but if for any reason tbey are invalid, no su-cb correction can be made.</p> <p>2. Forcible Entry and Detainer — Bond.—Where an appeal bond is taken and approved by one having no legal authority to do so, it is void, and not defective within the above rule.</p> <p>3. Forcible Entry and Detainer. — 'County Judge Pro Tem. — The provisions of section 1059 of the Kentucky Statutes do not confer upon the county judge the right or authority by a general order to appoint a regular county judge pro tem.. It only authorizes tbe appointment of a county judge pro tem. where tbe regular judge is absent from tbe county, or for any cause is unable to attend and preside in tbe discharge of the duties of his office; and an appeal bond in a forcible detainer case taken before and approved by a county judge pro tem. who svas appointed to such position throughout the term under a general order is void, if taken and approved when the regular judge is in the county and not disabled or otherwise incapacitated to attend to his duties.</p>

<p>From the McCracken. Circuit .Court on Motion of the Defendants to Dissolve Injunction.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Petition for Writ of Prohibition.</p>

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

<p>1. Gaming — Action for Recovery of Money Lost — -Pleading.—Sections 1956 and 1969 of the Kentucky. Statutes provide for and authorize two separate and distinct causes of action, the one giving the loser or his creditor the right to recover from the winner the' value of any property which may be lost in any of the games specified, and the other giving causa of action to the same parties to recover losses against the one who invites, persuades or otherwise induces the loser to visit any of the places mentioned in section 1960 of the statute. Evidence, therefore, of facts essential to the recovery under one section will not -authorize' a recovery under the other when the petition seeks a recovery under the' latter section, only.</p> <p>2. Gaming — Action to Recover Money Lost — Evidence.-—Whether the refusal of the court in a suit brought under section 1956, to permit plaintiff to introduce a record showing that defendant had been indicted and fined for the offense of operating a game of chance for compensation, was error, is not determined, since plaintiff was permitted, in the cross-examination of defendant, to develop all the facts, and was not prejudiced by the court’s action in excluding the record, if it was error.</p> <p>3. Gaming — Action to Recover Money Lost — Evidence of Conviction. — The court properly excluded the record of the police' court of Cincinnati, Ohio, showing that defendant had been convicted of a misdemeanor in that court, because such fact was irrelevant to establish any of the issue's in the case, and was not competent to impeach defendant’s character.</p> <p>4. Judgment — Trial—Caption—Pleading.—A recovery can not be had against a defendant made so in the caption of the petition only, when there is no allegation against him in the petition.</p> <p>5. Gaming — Evidence—Verdict.—On the issue, as to plaintiff’s losses, which were sought to be recovered, and upon other issues essential to a recovery, the evidence was conflicting, and the court properly submitted them to the jury, and its verdict in favor of defendants can not be said to be flagrantly against the evidence.</p>

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

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

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

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

<p>Insurance' — Fire Insurance — Liability on Policy Issued in Lieu of Another Policy Without Notice to the Insured. — At the! request of an insurance broker, a company renewed a $2,000.00 policy. As it could not reinsure $1,000.00 of tbe policy, the company decided to issue a $1,000.00 policy in lieu of the $2,000.00 policy and entrusted the' delivery of the policy to the insurance broker, who transmitted it through another who was the agent of the company for certain purposes. Insured accepted, and paid the premium on both policies without being notified that the $1;000.00 policy was issued in lieu of the' $2,000.00 policy. Between that time and the fire, which occurred twenty-three days later, no steps were taken to cancel either policy: Held, that as the company did not advise the insured before the fire of the condition on which the policy was issued, the company will not be permitted to rely on that defense after the loss has been incurred, and that the company was bound on the policy.</p>

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

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

<p>1. Boundaries — Courses and Distances — Description.—Upon a description of a tract of land in a state patent as “beginning on three chestnuts and chestnut oak near the head of the Pigeon fork; thence (running the dividing ridge .between Turkey creek and the Line fork to the Defeated branch; thence? the dividing ridge between the Defeated branch and Turkey creek), S. 10 W. 68 poles to a chestnut . . . ,” held, that the dividing ridges referred to are merely ancillary descriptions of the beginning lines of the survey, also described by courses and distances, but to be considered in connection with other relevant evidence' in locating the beginning lines.</p> <p>2. Boundaries — Courses and Distances. — Where the surveyor actually surveyed only two of the nine boundary lines described, marking the first three corners and running the other seven lines out by protraction, the evidence showing conclusively that these first two lines followed the ridge's in a general way only but not their sinuosities, and it being further shown that to follow the meanders of the ridges would not make a figure conforming to the original plat nor embrace even approximately the quantity of land called for, held that the courses and distances called for must be run in straight lines following the ridges in a general way and not their sinuosities.</p> <p>3. Boundaries — Courses and Distances — Fixed Objects — Location of Patent. — The rule that ridges called for are known and fixed objects upon the land and must control in the location of a patent over courses and distances where there is ambiguity in the deL seription does not apply where the patent, survey, plat and extraneous evidence all prove' that the known and fixed ridges were not intended by the surveyor to be run along the meanders of the crest but were to be followed only in a general way and by straight lines.</p>

<p>1. Receivers — Void Appointment — Right of One Deprived of Possession by a Void Receivership to Rents and Profits During the Receivership. — Where defendant was unlawfully deprived of the possession of real property by a receiver whose appointment was void, he was entitled to the rents and profits during the receivership, though he might be required -to account for same upon a final settlement of the question of title.</p> <p>2. Receivers — Grounds for Appointment of Receiver for Re'alty— Petition — Sufficiency.—While courts of equity have a broad discretion in appointing receivers of property that is the subject of litigation, yet a receiver for real estate will not be appointed at the instance of an adverse claimant as against one in possession claiming the title, unless it is made .to appear that there is a reasonable probability that the complainant will establish his right to the satisfaction of the court, and that the' one in possession is insolvent and is wasting the estate, or there is danger that the rents and profits will be lost through his insolvency, and a petition which fails to allege these facts is insufficient.</p>

<p>1. Time — Rule of Computation. — Where the computation of time is to be made from the act done, the day on which the act is done must be included, but if it is to be made from the day itself, the day must be excluded.</p> <p>2. Appeal and Error — Roads—Appeal to Circuit Court — Time—Computation — Construction of Statute. — Section 4303, Kentucky Statutes, 1909, provides that no appeal shall lie to the Court of Appeals from the decision of a county court ordering a new road to be opened, etc., but in all such cases the party aggrieved may prosecute an appeal within sixty days by executing bond as required in other cases to the circuit court of the. county; the time should be counted from the rendition of the' Judgment or the act done, and the day on which the judgment was rendered should be included: Hence', an appeal to the circuit court on January 4, 1918, from a judgment rendered on November 5, 1917, opening a new road, was not prosecuted in time, and was properly dismissed.</p>

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

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

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

<p>1. Insurance — Assignment of Contract — Effect.-—Where a contract of insurance is assigned by the insured with the consent of the insurer, a new contract is created identical in- terms with the one assigned between the' insurer and the assignee.</p> <p>2. Insurance — Avoidance of Policy — Facts Material to Risk — Fraudulent Concealment. — To avoid an insurance policy on the ground of concealment, i!t must -appear that the fact relied on was material to the risk, and that it was intentionally and fraudulently concealed by the insured.</p> <p>3. Insurance — When Fact Material to Risk. — A fact is material to the risk when it is such that the insurer, acting in accordance with the usual custom or practice of insurance companies, would not have issued the’ policy had he known of it.</p> <p>4. Insurance — Avoidance of Policy — When Concealment of Fact Material to Risk is Fraudulent. — Failure to disclose a fact material to' the risk is fraudulent when the insured knows of it, and it is such tha)t an ordinarily prudent person would know it to bo material to the risk.</p> <p>5. Insurance — Fact Material to Risk — Pleading—Sufficiency.-—An' amended answer seeking to avoid an assignment of a policy on - the ground that a fact material to the risk was fraudulently concealed, but not alleging that an ordinarily prudent person in insured’s situation would have known the fact to be material to the risk, was insufficient.</p>

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

<p>1. Deeds — Responsibility for Violation of Covenant — Breach of Condition Subsequent. — The legal responsibility for the violation of . a covenant "in a deed is a suit for specific performance or liability to respond in damages. For breach of a condition subsequent th'e estate is subject to forfeiture.</p> <p>2. Deeds — Condition Subsequent. — A deed upon, condition subset- . quent conveys the fee when it is executed but the fee passes subject .to the contingency of being defeated as provided in the condition,, the grantor having the power to re-enter upon condition broken.</p> <p>3. De'eds — Condition Subsequent. — Conditions subsequent are raised only by apt and sufficient words and the words must not only be such as of themselves import a condition, but must be so con-</p> <p>' nected with the grant in the deed as to qualify or restrain it.</p> <p>4. Deeds — Condition Subsequent — Construction.—A deed will not be construed to convey an estate on condition unless language is used which ex proprio vigore imports a condition or unless the intent of the grantor-to make a conditional estate is otherwise • 'clearly and unequivocally indicated.</p> <p>5. Deeds-1 — Covenant or Condition — Construction.—Where there is reasonable doubt whether a clause in a deed,is a covenant or a condition, the courts .are inclined against .the latter.,</p> <p>6. Deeds — Creation of Estate on Condition. — An estate on condition - cannot be created by deed except where the terms of the grant will admit .of no other reasonable interpretation.</p> <p>7. Deeds — Vesting of Estates. — The law favors the vesting of estates. The deed being that of the grantor, he may choose his own words; it is right therefore ■ that the language- of the deed should be construed against him.</p> <p>8. Deeds — Restriction as to Use of Property. — A clause in a deed providing that the property should be forever kept and used for first class- hotel and for no other purpose which contains no words or language that the deed should be void- or the title forfeited in the event the land should cease to be used for hotel purposes, will be construed .as a covenant and not a condition subsequent.</p> <p>9. Deeds- — Restriction as to Use of Property. — Where it is the manifest intention of the parties , that property conveyed should be used for hotel purpose's and none -other, but contains no clause or stipulation entitling the grantor to a reversion or forfeiture, a suit to forfeit the title cannot be maintained, but the use of the property for any -purpose other than that of a hotel will not be permitted.</p>

<p>Improvements — Husband and Wife — Right of Purchaser From Married Woman to Reimbursement for Improvements. — Where a married woman actively participates in the sale of he'r real estate by her husband, but the sale is Invalid because the husband did not have legal authority to bind his wife, one who purchases and improves the property in good faith is entitled to reimbursement for such improvemeats.</p>

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

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

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

<p>1. ' .Easements — Passways—Finding of Chancellor — Evidence.—Evidence examined and held to sustain tbe chancellor's finding that defendant was entitled to a roadway over plaintiffs’ land.</p> <p>2. Appeal and Error — Easements—Roadway—Title to Timber and Other Material on Roadway. — The right to a roadway over another’s land carries with it only the right to use and maintain the roadway, and not the title to the timber and all other material on the roadway, and a judgment to that effect is erroneous.</p>

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

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

<p>Appeal and Error — Want of Actual Controversy — Moot Questions. —Where persons are the beirs of a father and mother, and the interest of each in a parcel of real estate is the same, whether the land was the estate of the father or the mother, in a contest between these persons the issue as to the estate of which it was a portion, is a moot question, susceptible of debate, but, however, decided, has the same result upon the interests of .the parties, and which the courts will not trouble to decide.</p>

<p>1. Rape — Assault With Intent to Commit Rape — Instructions.— Where a defendant is charged with “detaining a woman against her will for the purpose of having carnal knowledge of her,” the penalty for such crime being confinement in the penitentiary, the evidence proving the crime charged, if anything, it is error for the court to give an instruction on assault and battery.</p> <p>2. Criminal Law — Impeachment of Witness — Rebuttal Evidence. — In every criminal case where rebuttal evidence is introduced for the purpose of contradicting or impeaching a witness, it is the duty of the trial court to admonish the jury concerning the purpose of such evidence and to restrict it to its proper scope.</p> <p>3. Criminal Law — Submission to Jury. — Instructions.—After the submission 'Of a case to the jury, it is improper for the court to give ■ additional instructions, but not necessarily prejudicial.</p>

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

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

<p>1. Larceny — Larceny of Money — Sufficiency of Indictment. — tinder section 135, Criminal Code, in an indictment for tie larceny of money, it is sufficient to allege the larceny of a certain number of dollars of the money of the United States, wthout specifying the coin, number, denomination or kind thereof.</p> <p>2. Larceny — -Larceny of Money — How Indictment Sustained. — An indictment for the larceny of money, which describes the property stolen as “341 dollars of good and lawful money of the United States,” may be sustained by proof of the larceny of either coin, currency of the United States or bank notes.</p> <p>3. Criminal Law — Evidence—Avowal.—Where an objection is sustained to a question asked a witness and the witness is not permitted to answer, and no avowal is made of the answer, which the witness would make, it can not be determined on appeal whether or not the ruling of the court was prejudicial.</p> <p>4. Criminal Law — New Trial.' — As a general rule a new trial will not be granted on account of witnesses discovered after the trial, where their evidence would only tend to impeach the evidence of witnesses, who testified upon the trial.</p> <p>5. Criminal Law — New Trial. — On the hearing of a motion for a new trial based upon the discovery of new witnesses, and the court hears the evidence of witnesses, and their evidence is not brought up in the record, upon appeal, it can only be presumed, that the evidence heard by the court justified its judgment in denying the new trial.</p>

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

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

<p>Jefferson Circuit Court.</p>

<p>1. Injunction — How Federal Courts Governed in Issuing. — In the absence of a rule of court or a statute to the contrary, federal courts are governed by the practice of the High Court of Chancery in England and the general rules governing equitable procedure, which allow the judge thereof, in the exercise of a sound discretion, to impose reasonable terms in the granting of temporary injunctions.</p> <p>2. Injunction — Recovery of Attorneys’ Fees in Actions on Injunction Bond. — It is the rule in the federal courts to not allow the recovery of attorney’s fees as special damages in a suit on an injunction bond containing only general language to pay the damages which defendant might sustain if the injunction should be finally dissolved. But this rule is one of construction only and does not announce a fixed public' policy. Therefore, it is competent for the court, in the exercise of a sound discretion, to exact of plaintiff a stipulation in the bond for the payment of attorney fees as a condition precedent to the granting of the injunction and a bond executed in compliance with the order is enforcible,</p> <p>3. Injunction — Attorneys’ Fees. — An attorney wbo procured a judgment for bis client under a contract providing for a contingent fee is not obligated as between himself and client to defend an injunction suit brought to enjoin the judgment obtained by him under bis contingent employment in a foreign jurisdiction, and which is based upon facts arising entirely after the judgment was obtained, although as between himself and client, the attorney would be postponed in the collection of his fee until the injunction suit was finally disposed of in favor of the client.</p> <p>4. Injunction — Attorneys’ Fees. — In this case it is held, under the facts recited in the opinion, that it is no defense to the recovery of attorney’s fees in a suit on an injunction bond, stipultaing for their payment, that the attorneys for defendant, in the injunction suit, which is plaintiff in the action on the bond, had a contract with its attorneys for a contingent fee, since such contract did not require the attorneys to defend the injunction suit, but if it did, the stipulation in the bond was tantamount to an agreement to pay a part of the contingent fee.</p>