Volume 191 — Kentucky Reports

<p>1. Descent and Distribution — Dower—Mines and Minerals. — Where oil wells, or other mines, have been opened by a deceased husband, upon Ms lands, before his death, or by lessees after his death, under enforcible contracts made with the husband, the royalties therefrom are profits arising from the use of the lands, and are a portion of the dowable real estate of the husband, within the meaning of section 2.138,' Ky. Stats.</p> <p>2. Descent and Distribution — Mines and Minerals — Royalties.— Where oil wells/or other mines are opened by a widow upon lands of her deceased husband, which have been assigned to her as dower and after such assignment, or by the widow and the remand ermen; oil, in place, being a mineral substance, and a portion of the land, and the widow having no right to open the mines, nor the remaindermen to the use of the land during the continuance of the life tenancy, the royalties, as between the widow and remaindermen are governed by the same rules, which apply to the use of other real estate, held in a similar way.</p> <p>3. Descent and Distribution — Mines and Minerals. — When oil wells or other mines are opened by a husband upon his lands, or after his death under enforcible contracts made with him, he has thereby fixed the mode of enjoyment and the source of profit of the lands.</p> <p>4. Descent and Distribution — iSetting Apart to Widow and Children —Partition.—Property exempt from distribution and sale and directed to be set apart to the widow and infant children of an intestate, under section 1403, subsection 5, Ky. Stats., was intended by the legislature to he under the supervision and control of the widow but .for the -joint use and enjoyment of the widow and children, and a partition of same will not be directed, unless there is some equitable reason for so doing, such as circumstances, which, without the fault of the children, deprived them of any use or enjoyment of the property.</p>

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

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

<p>1. Judicial Sales — Discretion of Commissioner Making Sale. — It is the policy of the law to sustain judicial sales and to encourage bidding by all persons so that property may not be sacrificed, and in making such sales the commissioner, in so far as he is not restricted by the judgment of the court, has a reasonable discretion as to the time and manner of making the sale.</p> <p>2. Judicial Sales — When Purchaser.or Bidder Estopped to Complain of Sale.' — An intendng purchaser or bidder at a judieiál sale may be estopped by his own silence or negligence, but to effect an estoppel he must have knowledge of his own rights and of what is going on.</p> <p>3. Judicial Sales — Acquiescence of Purchaser or Bidder — Estoppel.— Where property adjudged to be sold in separate parcels when it should have been adjudged to be sold in that manner and as a whole, after its sale separately was by consent of the.attorneys and upon the knowledge of the parties sold as a whole upon a better bid, they not objecting to the latter sale, are estopped to claim title at the separate sale and of the subsequent sale of the property as a whole.</p>

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

<p>Criminal Law — Evidence—Instructions.—In a prosecution for manslaughter where the evidence warranted the jury in finding the defendant guilty and where there were no errors in the instructions prejudicial to defendant, the judgment must be affirmed.</p>

<p>1. Divorce — Cruelty—What Amounts to. — Occasional quarrels about trivial things, or occasional outbursts of temper accompanied by the use óf bad language or other rudeness, or thoughtlessness at times about the rights and privileges of the wife, do not constitute upon the part of the husband such habitual misconduct as amounts to cruel and inhuman treatment within the meaning of our statute; the conduct must he of that studied, persistent and habitual character which if persisted in will eventually amount to cruel and inhuman treatment, even in the absence of any physical violence or attempted violence.</p> <p>2. Divorce — Cruelty.—Evidence examined and held not to sustain the plaintiff’s charge of cruel and inhuman treatment.</p> <p>3. Divorce — Maintenance.—Where the wife was not justified in leaving her husband separate maintenance will not be given her.</p>

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

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

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

<p>Appeal and Error — Final Order — Dismissal.—No appeal lies to the Court of Appeals from'any order of the trial court -which is not a final one, and an order either sustaining or overruling a demurrer to a pleading not followed by another one permanently adjudicating the rights of the parties and disposing of the cause, is not , a final order for the purposes of an appeal and the Court of Appeals will dismiss one prosecuted from such interlocutory order, upon motion made for that purpose, or upon its own motion upon discovery of the fact.</p>

<p>From Lawrence County.</p>

<p>1. Schools and School Districts — Election of County Board of Education — Right of Colored Voters Residing in White Graded School Districts to Vote.- — -Under section one, chapter 36, Acts 1920, creating a county hoard of education “which shall he composed of five members elected hy the qualified voters of the county, exclusive of voters residing in cities of the first, second, third and fourth class, or city or district having an independent school system of its own,” colored voters living in white graded school districts are not excluded as they are not residents of such districts within the meaning of the school law.</p> <p>2 Elections — Contest—Exclusion of Qualified Voters — Validity.— Where at an election the number of qualified voters denied the right to vote was sufficient to affect the result as to certain candidates declared elected, the election will he set aside on the ground that it can not be determined with certainty that the result, as certified by the canvassing board, represented the will of the majority of the voters.</p>

<p>1. Wills — Construction—Devise of Life Estate and Remainder — Limitation of Remainder — “Dying Without Children or Issue.” — Where an estate is devised to one for life with remainder to another, with the further provision that if the remainderman should die without children or issue, then to.a third person, the words, "dying without children or issue,” have reference to the death of the remainderman before the termination of the life estate, and if the remainderman survive the life tenant, his estate becomes absolute. but this rule applies only where the remainderman is devised a defeasible fee, and not where he is devised a mere life estate.</p> <p>2. Wills — Estates • Created — Fee Simple — “Children” as “Heirs.”- — • ^Ordinarily a devise by a father to his daughter and her children is construed as giving the daughter a life estate and her children the remainder in fee, but where the word, “children,” is followed by the word, “forever,” “children” is construed as “heirs,” and the daughter is held to take the fee; and particularly is this true where the testator in other clauses of the will used words appropriate to the creation of a life estate, thus showing that, when he desired .to create a life estate, he knew what words to employ for that purpose.</p> <p>3. Wills — Devise of Life Estate and Remainder — “Dying Without Children or Issue” — Estate Created — Fee Simple — -“Children” as “Heirs.” — Testator devis-ed all of his property to his wife for life and the remainder in a particular tract to his daughter and her children, “to have and to hold unto my said daughter, Sarah E. Eakins, and her children forever, but should she die without issue, then this land to revert to my estate:” Held, that the daughter took a defeasible fee subject to be defeated by her death without issue during the lifetime of her mother, the life tenant, and having survived her mother, her title ripened into an absolute fee.</p>

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

<p>Frauds, Statute of — Contracts Not to Bo Performed Within a Year. — A verbal contract for land for the growth of a crop made at such time as that the contract could not be completed within a year is within the staute of frauds and not enforcible.</p>

<p>1. Taxation — Tax Upon Indebtedness Secured by Mortgage. — The tax of twenty cents on each one hundred dollars of indebtedness secured by mortgage on property in this state, which indebtedness does not mature within five years, operates upon the indebtedness created; and where the mortgage or deed of trust, although dated five years or more before the maturity of the indebtedness secured by it, shows on its face that it was intended to secure an indebtedness to be created in the future, and that such indebtedness necessarily matured within five years from its creation, it is not embraced within the terms of the statute.</p> <p>2. Taxation — Tax Upon- Indebtedness Secured by Mortgage. — Under the provisions of the deed of trust in question no debt was created until the trustee authenticated and delivered certain notes referred to in the deed to the purchasers, and as that time was within five years of the date of maturity, the statute had no application, even though, the notes on their face were dated so as to make them mature more than five years thereafter.</p>

<p>1. Contracts — Acceptance—Mutuality.—A contract which the laws do not require to he in writing, when signed by one of the parties to it, and delivered to the other party, may be accepted by' the latter orally, without signing it, and if he does so, the contract will be mutually binding according to its terms.</p> <p>2. Contracts — Presumptions.—When the parties undertake to put into writing a contract, although it is such a one, as is not required to he in writing, it will be presumed, that the entire contract is embraced in the writing. ^</p> <p>3. Contracts — Acceptance.—If a party stipulates, that a contract, reduced to writing, must be signed by or accepted in writing by the other party, the acceptance must be in accordance with the stipulation.</p> <p>4. Brokers — Contracts—Consideration.—When a contract is made between a landowner and a real estate broker, for a sale of the land, or the securing of a purchaser, and for which a commission is agreed to be paid to the broker, the obligation of the latter to use diligence in selling the land, and the expense and labor, which he undertakes to sustain, is a sufficient consideration to support the contract.</p> <p>5. Brokers — Employment of Broker — Commissions.'—When a brokerage contract for the sale of land, for a commission is entered into, and in which the owner agrees to” give to the broker, the ex-elusive privilege of selling the land, during a definite period, stated in the contract, the owner can not during that period sell the land himself nor through any other person, than the broker, and if he does so, he will be liable to the broker for the commission agreed upon in the contract.</p> <p>6. Brokers — Breach of ' Contract — Measure of Damages. — When a contract, between a real estate broker and the owner of the land, gives to the broker, the exclusive privilege of selling the land, during a definite period, fixed in the contract, and in violation of the contract, the owner sells the land, during the existence of the contract, the measure of damages for the breach is the commission, stipulated in the contract, upon the price for which the land was sold.</p>

<p>1. Appeal and Error — Third Appeal — Law of Case. — On a third appeal the form'er opinions are the law of the case.</p> <p>2. Judgment — Conclusiveness.—Where a judgment is reversed by this court because the trial court gave the jury a peremptory instruction to find for the defendant when there was sufficient evidence ito carry the case to the jury and sustain a finding for plaintiff, and the evidence on the next trial is in substance the same, the issues of fact are submitted to the jury which returned a verdict for plaintiff, the judgment entered thereon will be affirmed.</p>

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

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

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

<p>1. Wills — Intention of Testator — Construction.—The cardinal rule for the construction of wills is to ascertain the intention of the testator as gathered from the language employed in the whole will and construe the language so as to carry out that intention. The literal and grammatical construction of independent sentences or clauses in a will, if they can possibly he made to do so, should surrender to the general purpose and intention of the testator as plainly manifested in his entire will.</p> <p>2. Wills — Intention of Testator — Construction.—Where a will devised only a life interest in one-fourth of the property of testatrix, to each of three of her four children, and provided that all children to whom advancements had not been made should he “made equal with advancements”: Held that the equality mentioned in the will referred to the quantity or portion which each of the children should take and not to the title or estate which each of them should have in their portion, which interpretation is in accord with the general purpose and intention as manifested by the entire will.</p>

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

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

<p>1. Insurance — Insurance of Property. — A provision in a tornado policy reading: “$500 on a frame, metal roofed bam and sheds, occupied as' a cow barn, including foundations and additions, . . . ” covers a silo located two feet from the barn and structurally connected therewith.</p> <p>2. Insurance — Insurance Upon Property — Construction of Policy.— Where it is clear the parties to an insurance contract had in mind something more than the building specifically named therein, and there is no other structure to which the term “addition” in the policy can be applied, it will be construed to cover a silo erected within two feet of the barn and connected therewith by a covered chute.</p>

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

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

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

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

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

<p>1 Mines and Minerals — Tenancy in Common — Lease.—A tenant in common of real property may lease his undivided interest in the land for oil and gas and is bound thereby, but the other joint owners are not concluded by the lease contract so made, but may lease their interests to another or other persons or companies and all lessees may enter on the land and explore for, take and market the oil rand gas under the lease contract, bui each lessee operating on the land must respect the prior locations of other operators and he i^esponsible to the other joint owners of the land for their respective portions of the mineral taken under the lease in the same way that the co-tenants must as between themselves.</p> <p>2. Tenancy in Common — Lease.—A co-tenant can not be required by a court proceeding to lease his undivided interest in the land.</p> <p>3. Mines and Minerals. — Where the landowner does nothing to prevent the lessee from entering on the land to drill for oil, except to say the lease is void, and the lessee does not offer to go on the property to develop it, there is no ground for a judgment extending the term of the lease so as to cover lost time</p>

<p>Mortgages — Purchase and Conversion of Property from Mortgagor. — One who buys mortgaged personal property from the mortgagor with full knowledge of the existence of the mortgage, and converts it to his own use is liable to the mortgagee for the amount of the mortgage debt to the extent of the value of the mortgaged property taken and eoiiverted.</p>

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

<p>1 Landlord and Tenant — Repairs.—A covenant to make repairs does not require a landlord to rebuild a house which has been substantially destroyed by fire, and this is true even in cases where the contract requires the landlord to make extraordinary repairs.</p> <p>2. Landlord and Tenant — Repairs—Pleading.—A petition which does not aver that the building could, by extraordinary repairs, be made tenantable, does not state a cause of action.</p>

<p>1. Landlord and Tenant — Unrecorded Oil Lease. — An unrecorded oil lease does not afford notice to the public of its existence, and if a second lease is taken in good faith upon the same tract of land, without actual knowledge of the existence of the first lease, the junior contract will prevail.</p> <p>2. Principal and Agent — When Knowledge of Defect in Title not Imputed to Principal. — The mere fact that one is secretary of an oil company does not make him an agent for the purchase of oil lands or leases, and his knowledge of the defects in title in such case is not imputable to the company where the company has other competent officers who represent it in the deal.</p> <p>3. Principal and Agent — Agent’s Authority — Subagent.—An agent has not authority ordinarily to employ a subagent, nor is the knowledge of the subagent imputed to the principal, for there is no privity between them.</p>

<p>Boundaries — Location of Division Line — Evidence.—Where the only question in a land case is the location of the line between the parties and there is substantial evidence tending to sustain the finding of the chancellor and judgment is not against the weight of the evidence, it will j)e affirmed.</p>

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

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

<p>1. Municipal Corporations — Indebtedness—Levy.—In estimating tbe indebtedness a municipality or taxing district may incur under section 158 of tbe Constitution, expenses for tbe current year are to be excluded upon tbe presumption tbey will be taken care of out of tbe tax levy for the year, but it can not be assumed that notes to a bank were given or tbe proceeds used for current expenses simply because tbey were executed and fall due within tbe current fiscal year.</p> <p>2. Municipal Corporations — Indebtedness.—In such an estimate Indebtedness created before tbe adoption of .the Constitution must be included after tbe total outstanding indebtedness once has been reduced below tbe prescribed limit, except in certain emergencies.</p> <p>3. Municipal Corporations' — Indebtedness—School Bonds. — In cities of tbe third class tbe law prior to the enactment of’ chapter 53 of 1920 Session Acts bonds issued for school purposes are debts of tbe city and must be included in determining whether its constitutional limit of indebtedness has been exceeded.</p>

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

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

<p>1. 'Judicial Sales — Conveyance by Commissioner. — Under Civil Code, sec. 398, the conveyance by a commissioner will not pass any right until it has been examined and approved by the court, which approval shall be endorsed on the deed and recorded with it, but failure of the judge to so endorse his approval on the deed will not invalidate it, nor deprive it of its recordable character if there is .an order in the action reciting that it has been so examined and approved by the court.</p> <p>2. Pleading — Specific Relief. — Under Civil Code, sec. 90, the petition may contain a prayer for specific relief, and where defense is made plaintiff may have judgment for other relief under a prayer therefor.</p> <p>3. Quieting Title — Possession.—In an action to quiet title to land proof of actual possession is not necessary to authorize the court to adjudge the superiority of title, where defendant denies the title asserted by plaintiff and by way of counterclaim seeks affirmative relief. *</p> <p>4. Set Off and Counterclaim — Caption.—Under ¡sec. 97, subsec. 4 of the Civil Code defendant may not have a judgment upon a counterclaim unless the answer is so captioned, but plaintiff’s right to object to a pleading for this failure is waived by replying thereto .and joining issue thereon in those instances where the facts alleged are sufficient to constitute an answer a counterclaim.</p> <p>5. Set Off and Counterclaim — Caption.—A pleading captioned as an answer in which defendant asserts his title to land, his actual possession thereof, and plaintiff’s want of title and' asks that he be adjudged its owner, being to all intents and purposes as well as in its essential allegations a counterclaim, will be so treated by the court.</p> <p>6. Evidence — Documents.—A document is admissible in evidence without direct proof of its execution if it appears to be of the age of at least thirty years, is found in the proper custody, is unblemished by alterations, and otherwise free from suspicion.</p> <p>7. Evidence — Documents.—A document purporting to be a title bond and having the appearance of being more than thirty years old can not he admitted as an ancient document where the entire instrument, including the signatures of the witnesses, appears to be in the same handwriting, the misspelling in the document being reflected in the name of the witnesses, and where there is further proof by a witness for the party relying upon the title bond that the document was written at a date much later than the one it bears.</p>

<p>1. Drains — Proceedings for Establishment — Petition.—A petition to establish a drainage district is not bad because it fails to set forth all the names of owners of the lands in the proposed district.</p> <p>2. Drains — Description.—A general description only of the land embraced in the proposed drainage district is all that is required in the petition. ■</p> <p>3. Drains — Viewers—Report.—The civil or drainage engineer is a member of the board of viewers and he and another member of the board may alone make a report.</p> <p>4. Drains — Proceedings for Establishment. — A proceeding to establish a drainage district which was commenced under the act of 1912 may be prosecuted under the 1918 act without the addition of petitioners to make 25 per cent, of the landowners, or 25 per c'ent. of the land.</p> <p>5. Drains — Viewers’ Report — Time of Piling. — It, is not absolutely necessary that the viewers’ report be-filed within 30 days from the appointment of viewers, this part of the statute being merely directory.</p> <p>6. Drains — Bond.—A defective or insufficient bond may be ground for dismissing the proceedings, if a good and sufficient bond is not given within a reasonable time to be fixed by the court.</p>

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

<p>Jury — Competency of Citizens and Taxpayers of a City as Jurors in an Action for Damages Against the City. — Citizens and taxpayers of a city are not disqualified by this fact alone to serve as jurors in an action for damages against the city, and their exclusion from the regular panel is prejudicial error.</p>

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

<p>Municipal Corporations — Election on Question of Bond Issue— How Held. — A special election called by a city of the second class to take tke sense of the voters of the city on a proposed bond issue for public improvement must be advertised in the way and manner and for the time required by statute, section 3069, and if not so advertised is invalid and the bond issue may be enjoined at the suit of a citizen and taxpayer.</p>

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

<p>1. Drains — Discontinuance of Ditch. — The provisions of subsection 49a of section 2380, Ky. Statutes, can not be invoked to discontinue a ditch in a drainage district, as a public ditch, until after the construction of the ditch contemplated in the establishment of the district has been completed.</p> <p>2. Drains — Creation of Drainage District. — A drainage district is a governmental agency for the exercise of a legislative power, and can be created by legislative authority only, nor can it be dissolved except by such authority.</p> <p>3. Drains — Dissolution of Drainage District. — Authority delegated by the legislature to dissolve or discontinue a drainage district must be pursued at the time, and in the manner prescribed to effect that result.</p>

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

<p>1. Appeal and Error — Finding of Chancellor. — The finding of the chancellor on a question of fact -will not be disturbed when the evidence is conflicting and such, as to leave the mind in doubt.</p> <p>2. Divorce — Alimony—Costs.—Where in a suit for divorce and alimony the wife is in’ fault and has ample means to pay her costs, she is not entitled to judgment for same against her husband.</p>

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

<p>1. Schools and School Districts — Submission by Board of Education of Budget — Levy by Fiscal Court. — The provisions of section 8 of chapter 36, Session Acts 1920, with reference to the time for the county board of education to submit a budget to the county court clerk of the county for the purpose of requiring the fiscal court to make a levy for the benefit of the common schools of the county are directory and not mandatory, since the school children of the county may not be allowed to suffer because of any oversight, dereliction or nonfeasance of'the county board of education in the discharge of its ministerial duties.</p> <p>2. Schools and School Districts — Levy at Special Session of Fiscal Court. — A county judge may be ordered and directed by a mandatory wr.it to convene the fiscal court of the county in special session for the purpose of making the levy provided in 'gaid subsection 8 upon his refusal to do so after request made by the board and after it has filed the required budget with the county court clerk of the county. But possibly, there can be’ only one request after the year 1921 for such levy and but one filing of a budget by the county board of education which must include' the entire amount required to supplement the school fund paid to the county by the state.</p>

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

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

<p>Motion for Injunction from Floyd Circuit Court.</p>

<p>1. Landlord and Tenant — Fire Escapes — Duty -to Furnish. — Under a municipal ordinance providing that every building, three or more stories high, used as a hotel, office building, theatre, lodging house, apartment bouse, tenement, or for manufacturing purposes, shall have at least one fire escape, and as many more as may be necessary for safety, a landlord who leases a building for use as a private residence is not liable in damages for a failure to erect a fire escape thereon, unless he knows, or has knowledge of such facts as would lead an ordinarily prudent person to believe, that the building was being used as a lodging house.</p> <p>2. Landlord and Tenant — Fire Escapes — Failure to Erect — Knowledge of Landlord that Building Was Used as Lodging House— Sufficiency of Evidence. — In an action by plaintiff to recover damages for injuries alleged to have been caused by the failure of a church to erect a fire escape on a building which it had leased Nfor use as a private residence, evidence that, on Sunday mornings and evenings, a number of the occupants sat out in front while persons were going to and from church, was not sufficient to make the question of knowledge on the part of the officers of the church, that the building was used' as a lodging house, one for the jury.</p>

<p>1. Contracts — Wagering Contract — Purchase on Stock Market Through Broker; — The mere fact that one purchasing on the stock market through a broker a commodity for future delivery, resells it on the same market through the broker before the day fixed by the contract of purchase for .its delivery, will not of itself make the transaction a wagering contract. But where, as shown in this case, the transaction was entered into by the parties, as were many previous similar ones between them, with the understanding that there was never to be any delivery of the commodity, and that its purchase was a mere wager on the rise and fall of its price on the market, these facts render the contract void and, therefore, unenforcible by either party.</p> <p>2. Brokers — Wagering Contract — Liability of Broker.' — As under Ky. Statutes, section 1957, the broker is made liable to the purchaser for the loss he sustains by the malting of such a wagering contract, the judgment of the circuit court in this case awarding the purchaser a recovery against the brokers for money he paid them by way of margins and commission on the purchase of the commodity, was authorized. •</p>

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

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

<p>1. Attachment — Attachment for Rent — Evidence.—In proceedings under Ky. Stats., section 2302, providing that a landlord who has reasonable grounds for belief and does believe that unless an attachment issues he will lose his rent, the same strictness of proof to substantiate these grounds is not required as in a case of an attachment to secure the payment of an ordinary debt.</p> <p>2. Attachment — Attachment for Rent — Lien.—A landlord held justified in procuring an attachment where he was under the impression that unless he did so he would lose his lien for rent under Ky. Stats., section 2817, and where it also appears the lessee was insolvent and without the knowledge or consent of the lessor he had mortgaged his share of the crop raised on the leased premises.</p>

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

<p>1. Malicious Prosecution — Actions—Pleading.—In an action for malicious prosecution it is not necessary to allege that the plaintiff was arrested or taken into custody since a cause of action exists when the law is put in motion against the plaintiff by the defend ant maliciously and without probable cause whether he is arrested or not.</p> <p>2. Malicious Prosecution — Actions—Pleading—Sufficiency.—A petition which alleges in substance that a criminal prosecution charging the plaintiff with the crime of unlawfully disturbing religious worship had been instituted by the defendant maliciously and without probable cause before a peace office having jurisdiction thereof, is not demurrable although the allegations are not as specific as they should be in that it is not alleged whether a summons or warrant issued thereon, either of which under our statutes might have been employed to institute the action.</p> <p>3. Pleading — Motion to Perfect — Demurrer.—A demurrer cannot be used to make a pleading more specific; that question can only be raised by motion to require the pleader to so perfect his pleading.</p>

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

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

<p>1. Beneficial Associations — Fraternal Insurance — Beneficiaries—Insurable Interest. — Under our statute of March 24, 1906, members of fraternal associations are not limited in the designation of bene'ficiaries to persons who have an insurable interest in their lives.</p> <p>2. Beneficial Associations — Insurable Interest — Betrothal.—A betrothal gives to each of the parties to it an insurable interest in the life of the other.</p> <p>3. Gifts — Delivery in General. — There can be no valid, completed gift of personal property, or of a chose in action, unless the property, •or chose, or something representing it, is delivered to the donee, or to some one as the agent of the donee.</p> <p>4. Beneficial Associations — Beneficiaries—When no Change In.— Where one holding a benefit certificate in a beneficiary association gives expression to a desire in the presence of the designated beneficiary, that he wants another, who is also present, to have half of the proceeds of his policy, and the designated beneficiary responds, “You may do as you please about it,” and there is no delivery or assignment of the policy, either actual or symbolical, and no affirmative action of any kind or character taken, there was no change in the beneficiary.</p>

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

<p>Petition for Writ of Habeas Corpus.</p>

<p>1. Courts — Local or Special Acts Affecting — Jurisdiction.—Section 59 of the Constitution prohibits the enactment of any local or special act of the legislature affecting the jurisdiction of the courts of justice.</p> <p>2. Courts — Uniformity of Jurisdiction. — Section 141 of (.he Constitution requires the jurisdiction of the county courts to be uniform, and regulated by a general law.</p> <p>3. Courts — Circuit Courts Having One Clerk. — Section 137 of the Constitution, provides, that in a judicial district, composed of one county, and containing a population of 150,000, or over, that the circuit courts shall have but one clerk.</p> <p>4. Statutes — Elimination of Invalid Provisions. — A statute may contain valid provisions, and provisions, which are unconstitutional, and the invalid provisions may be eliminated, without affecting the valid ones, if the valid provisions are so clearly separable from the invalid ones, that they can stand and be operative without the assistance of the invalid ones.</p> <p>5. Statutes — When Entire Statute Must Fail. — If the purpose of a statute is to accomplish a single object if some of the provisions are void, unless what are valid, are sufficient to effect the- object, the whole must fail.</p> <p>6. • Statutes — Dependent Provisions — When Invalid. — If the valid and invalid provisions of an act of the legislature “are so mutually connected and dependent upon each other as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue, independently, then if some parts are ^unconstitutional, all of the provisions which will be thus dependent, conditional or connected must fall with them.”</p>

<p>1. Licenses — Subjects of License — Tax—Vehicles.—The imposition of a license fee on vehicles owned and operated in a city of the fourth class is a valid exercise of the police power.</p> <p>2. Licenses — Registration of Motor Vehicles — License Fees and Taxes — Amount.—Since the registration of motor vehicles will cost'-something, and their operation on the streets of the city will necessarily require the services of one or more traffic policemen to see -that the regulations imposed by the city are obeyed, and to look after the safety of the citizens, it cannot be said as a matter of law that a license fee of $6.00 for each machine of twenty-five horse power or under, and of $7.00 for each machine of more than twenty-five horse power, is unreasonable.</p> <p>3. Licenses — License Fees and Taxes. — Where the ordinance declares that the fee is levied for the purpose of having all automobiles and motorcycles registered, and for exercising a supervisory regulation over them, and the amount of the fee is not unreasonable, it cannot be said that the fee is imposed merely as a tax.</p> <p>4. Licenses — Effect of State Statute on Power of City of Fourth Class to Impose a License Fee on Motor Vehicles. — There is nothing in the state statute providing for the registration and licensing of motor vehicles, which either expressly or by necessary implication, deprives a municipality of the fourth class of the power to impose a license fee on motor vehicles owned and operated in the city, to meet the expense- of registration and the enforcement of .reasonable regulations not inconsistent with the statute.</p>

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

<p>1. Action- — Accrual of Cause of Action. — The accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another a cause of action has accrued and the statute of limitations begins to run.</p> <p>2. Municipal Corporations — Lien for Improvements — Accrual of Cause of Action.- — Kentucky Statutes, section 3575, regulating the procedure in enforcing liens by a city of the second class apportioned to abutting lots, according to value, for the original construction of streets under the ten year bond plan, by providing that the cost thereof as assessed against such lots may be paid by the owners thereof in annual installments when taxes assessed by the city are payable; and that: “The assessment (for street construction) may be collected like other taxes or the city may, at any time after one installment remain delinquent for thirty days, by a suit in equity enforce its lien for all the unpaid installments, with interest thereon to the date of satisfaction of same and' its costs expended,” clearly confers upon the municipality the right to sue and enforce its lien for all unpaid installments of the assessment thirty days after the first or any one of them becomes delinquent. Its right of action accrues, therefore, upon the expiration of the thirty days and the statute of limitations then begins to run; and if suit be not brought within five years next after such right of action thus accrues, the statute will ba,r a recovery as to all the unpaid installments of the assessment.</p>

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

<p>1. Homicide — Instructions—Evidence.—Upon the trial of defendant for homicide the evidence was sufficient to establish the fact that accused started the. trouble, and the court was justified under the evidence in giving the instruction complained of which limited and qualified the self-defense instruction.</p> <p>2. Homicide — Instructions.—The law does not allow a man to create a bad o'r dangerous -situation and then fight his way out.</p>

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

<p>1. Municipal Corporations — Indebtedness for School Purposes. — A bonded indebtedness of a city of the fourth class created for school purposes in 1908 did not become the indebtedness of the school district created by chapter 14, Acts 1920, including the city and adjacent territory.</p> <p>2. Municipal Corporations — Schools and School Districts — Apportionment of Debts. — The legislature having plenary power over school districts may provide for the division of the property and apportionment of debts when a portion of the territory and property of one district is transferred to the jurisdiction' of another; but in the absence of such provision the rule of the common law obtains, and that rule leaves the property where it is found, and the debt on the original debtor.</p>

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

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

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

<p>1. Appeal and Error — Bill of Exceptions. — Upon an appeal in a common law action, where there is no bill of exceptions in the transcript, there is nothing for this court to consider except whether the pleadings support tlie judgment.</p> <p>2. Trial — Directed Verdict. — The direction by a court to the jury in a common law trial to return a verdict, is the action of the court and not of the jury, such action being upon a question of law,</p> <p>3. Trial — Directed Verdict. — In the absence of affirmative action by plaintiff looking to the having of a mistrial declared when one of the jurors is sick and absent, after all the plaintiff’s evidence has been heard, the court is not deprived of the power to direct a verdict.</p>

<p>1. Appearance — In General — Quashal of Summons. — A party defendant may appear solely for the purpose of moving to quash the summons and return thereon without thereby entering a general appearance to the action.</p> <p>2. Appearance — In General. — An appearance of the defendant in court for any purpose other than to object to the sufficiency of the service of summons by a motion to quash or by other appropriate proceeding will be treated as a general appearance to the action.</p> <p>3. Appearance — In General — Presence at Taking of Depositions— Quashal of Summons. — A defendant whose counsel more than a year after suit is filed is present at the taking of depositions by plaintiff, enters into certain stipulations in regard to said depositions, cross-examines the witnesses, and interposes an objection to questions propounded by plaintiff’s counsel as well as to a motion to take the petition for confessed and for judgment thereon, all without objecting to the jurisdiction of the court, will be treated as having entered a general appearance to the- action, and it is too late to thereafter enter a special appearance for the sole purpose of moving to quash the summons and return thereon.</p>

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

<p>1. Partnership — Transactions Between Partners — Good Faith.— Where one partner procures the other.to sign an agreement which is manifestly unfair and unjust, the agreement will not be upheld if it be made to appear that the injured party’s signature was obtained by a promise which was never, and could not be carried into effect.</p> <p>2. Partnership — Action for Settlement — Finding of Chancellor. — In an action for a settlement of a partnership, evidence considered and held to sustain the finding of the chancellor in favor of plaintiff.</p> <p>3. Appeal and Error — Evidence—When Motion to Retake Deposition Comes too Late. — In an action for the settlement of a partnership, it was not error to overrule defendant’s motion to retake his own deposition, where the motion was made eight months after he had completed his proof, and plaintiff had died in the meantime, and no good reason was shown why the offered evidence was not introduced in the -first place, or within a reasonable time thereafter.</p> <p>4. New Trial — Grounds—Newly Discovered Evidence. — A new trial for newly discovered evidence will not be granted unless the evidence be of sucb a decisive character as to render a different result reasonably certain.</p> <p>5. New Trial — Grounds—Newly Discovered Evidence. — Newly discovered evidence relied on as ground for new trial in an action for the settlement of a partnership held not of such a decisive character as to render a different result reasonably certain</p>

<p>1. Sales — Breach of Warranty — Remedy.—Where a contract of sale contains a warranty and provides a remedy in case of a breach, the remedy is exclusive.</p> <p>2. Sales — Breach of Warranty — Remedy—Waiver.—Where a provision in a contract of sale for the return of machinery is imperative and not permissive, and the machinery is' not absolutely worthless, a return, or an offer to return, the machinery, is a condition precedent to relief asked by the purchasers, unless the seller waives the right to insist on a return.</p> <p>3. Sales — Breach of Warranty — Waiver.—In view of a provision in a contract for the sale of machinery, that the seller was to be given an opportunity to remedy any defect in the machinery, and the machinery was to be returned if the seller failed to make it comply with the warranty, the mere fact that the seller’s agent requested the purchasers to keep the machinery,' under a promise to make it work, was not a waiver for all time to come of the .seller’s right to insist on the return, but a waiver only during the time that the seller was engaged in an effort to make the machinery work, and for a reasonable time thereafter.</p> <p>4. Sales — Breach of Warranty — Inquiry by Purchaser if Seller Would Take the Old Machine and Give Him a New One Not an Offer to Return. — A letter containing the following: “Now what we want to know, will you take this machine and give us one that will work?” was a mere inquiry and not an offer to return.</p> <p>5. Sales — Breach of Warranty — Failure to Return — Waiver.—Where the seller made several ineffectual attempts to remedy the defects in machinery, and the last ineffectual attempt was made in the month of November, 1917, at which time the purchaser abandoned the machinery and at no time thereafter returned, or offered to return, it, there was no waiver of the seller’s right to insist on a return, and the purchaser was not entitled to any relief.</p>

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

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

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

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

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

<p>1. Criminal Law — Decisions Reviewable. — Since section 281 of the Criminal Code denies to this court jurisdiction to review decisions of the trial court relating to the selection of the jury in criminal prosecutions, we cannot consider the manner of the jury’s selection as ground for a continuance.</p> <p>2. Criminal Law — Continuance.—The trial court did not abuse a sound discretion in refusing a continuance because of the absence of witnesses where the defendant did not show diligence to procure their presence or because of the uncontradicted allegation of his affidavit, that he had not had reasonable opportunity to select or confer with his attorneys, where defendant was represented by counsel and no facts were alleged to show a lack of reasonable opportunity for preparation for trial.</p> <p>3. Criminal Law — Circumstantial Evidence. — A conviction may be had upon circumstantial evidence alone and this character of evidence is of equal efficacy as direct proof.</p> <p>4. Criminal Law — Circumstantial Evidence. — It is only where the entire evidence may be as reasonably reconciled with the innocence of the accused that a conviction will not be sustained upon circumstantial evidence alone.</p> <p>5. Criminal Law — Evidence.—Evidence of the general reputation for morality of a defendant who has testified in his own behalf is competent.</p> <p>6. Criminal Law — Evidence—Admonition—Impeachment.—It is error for the court to fail to admonish the jury as to the effect of impeaching testimony when an objection or exception or motion is made at the time calling the court’s attention to the necessity therefor, but such error will not warrant a reversal of the judgment unless it appears from the whole record that the substantial rights of the accused have been prejudiced thereby.</p> <p>7. Criminal Law — Witnesses—Avowal.-—In the absence of an avowal we cannot determine whether the refusal to permit a witness to answer a competent question was prejudicial or not.</p>

<p>1. Criminal Law — Threats— Evidence.— Uncommunicated threats, made either by the defendant or the one against whom he committed his offense, and vice versa, if not too remote, are-relevant upon the trial of defendant where the evidence is conflicting, for the purpose of showing ill feeling and to illustrate the fact of who began the difficulty and who was to blame therefor as well as for its results; but, indefinite threats so far removed from the time of the difficulty as to not possibly be a part of it ■and in which no reference is made to the other antagonist are- not admissible for any purpose.</p> <p>2. Criminal Law — Trial—Misconduct.-—Attorneys are officers of the court and constitute a part of the machinery for the administration of justice and they have no more- right to engage in conduct during a trial for the purpose of creating a false impression upon the jury than has the presiding judge, and wherever such forbidden conduct is indulged in and is of such a nature as was calculated to influence the jury in its verdict a new trial should be granted, unless from the whole record the court is convinced that no injustice has been done.</p> <p>3. Criminal Law — Trial-—Misconduct—Evidence.—It is inexcusable conduct on the part of counsel employed to prosecute to offer to introduce evidence against defendant which he is convinced is incompetent, but which he offers for the purpose of getting it before the jury and for the damaging effect it might have against the defendant. The same may be said as to the conduct of counsel in asking a question, ostensibly for the purpose of laying the foundation to impeach or contradict a witness with no intention of introducing the contradicting witness, but only for the purpose of getting tlie damaging statement before tbe jury and for tbe influence it might have with that body.</p> <p>4. Criminal Law — New Trial.- — While one error, standing alone, may not be sufficiently prejudicial to authorize the granting of a new trial or the reversal of -a judgment; but when there exists' a number of them and defendant’s guilt it not indisputably proven, and upon the whole case the court is convinced that defendant has not had a fair or impartial trial, a new trial should be granted (subsection 7, section 271, Criminal Code) and this court upon appeal will reverse the judgment denying it, under such circumstances, under the authority conferred upon it by section 340 -of the Criminal Code.</p>

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

<p>1. Appeal and Error — Pleading—Amendments.—Owing to the failure of defendant’s counsel to appear at a trial, judgment went by default; motion and grounds for new trial were filed the succeeding day by newly employed counsel. During the pendency of this motion counsel tendered an amended answietr setting up a valid defense. In the order sustaining the motion for a new trial it was erroneously stated that the motion to file the amended answer was sustained. Defendant took-proof upon the issue raised by the amended pleading; later the order sustaining the motion to file the amended answer was set aside. The second trial did not take place for more than a year after the amendment was tendered; Held, the refusal of the court to permit the amendment to be filed was an abuse of its discretion under Civil Code, section 134.</p> <p>2. Telegraphs and Telephones — Interstate Commerce — Pleading.— Where, in the transmission of a telegraphic message from one city to another in the state, it becomes necessary to relay it through a neighboring state, this makes it an interstate message, and since Congress has taken possession of the field of interstate commerce by telegraph, thereby superseding state laws on the subject, the states' are without authority to regulate telegraph business of an interstate character. Under such circumstances the company is entitled to plead these facts and to rely upon certain provisions of its contract limiting its liability for negligence in failing to deliver an unrepeated message.</p>

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

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

<p>1. Frauds, Statute of — Real Property — Contract for Sale — Description. — Where a written offer for the sale of land described the land as “427 acres more or less, IAneville, Ala., dist. on A. B. & R. R.,” the description was not sufficiently certain to take the case out of the statute of frauds.</p> <p>2. Frauds, Statute of — Real Property — Contract for Sale — Description. — Where in an action to recover damages for the breach of a contract for the sale of real estate, the description of the land in the memorandum was not sufficient to take the case out of the statute of frauds, the petition was not sufficient to show that the defect in the description was cured by a deed which the grantor tendered, even if that could be done, a question not decided, where the deed was not filed as an exhibit, and the petition did not give the description contained in the deed, but merely followed the description contained in the memorandum and then alleged that “he (plaintiff) forthwith executed in due form a deed of conveyance for said land to defendant.”</p>

<p>1. Criminal Law — In Custody of Officer — Evidence—Sweating.— Where one is in custody of an officer, and without coercion, threat or promise from the officer, or persistent or improper'questioning from him, hut in response to questions from the officer, voluntarily makes a statement as to how a difficulty in which he had been engaged occurred, the statement is competent evidence against him, and is not in conflict with our anti-sweating act.</p> <p>2. Criminal Law — Use of Passway — Instruction Involving Title. — In a personal difficulty growing out of the right to use a passway, no ■instruction should be given involving the title to or right to the use of -the passway.</p> <p>3. Criminal Law — Evidence as to Rights in Pas-sway. — On such a trial the evidence of the parties as to their rights in the passway ■is admissible only for the purpose of putting the jury in the situation of the parties and enabling it to determine their motives and understand their action.</p> <p>4. Criminal Law — Right of Father to Defend Son — Instructions.— Ordinarily a father engaged in a personal difficulty against others, in which his son is also engaged, is entitled to an instruction giving him the right to defend his son; hut where the father did not know that his son was present at the time of the difficulty, and did not see him there, and consequently did not know he was in any danger, he had no right to such an instruction.</p>

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

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

<p>1. Larceny — Felonious Intention Necessary to Commit — Effect of Intoxicating Liquors. — A felonious intention is necessary to commit the crime of larceny, and if one, is so overcome with the effect of alcoholic liquors, as not to he able to entertain an intention to steal, he cannot commit a larceny.</p> <p>2. Larceny — Felonious Intention to Take and Carry Away Property. —The felonious intention, necessary to the taking and carrying away of property, to constitute larceny, is the wrongful purpose ■to convert the property to the taker’s own use and benefit and to permanently deprive the owner of it, and is expressed in the term to steal.</p> <p>3. Criminal Law — New Trial — Newly Discovered Evidence. — The newly discovered evidence, which will require the granting of a new trial must be important and calculated, under all the facts of a case to exert 'a decisive and controlling influence dn affecting the result.</p>

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

<p>1. Parties — Real Party in Interest. — The requirement of Civil Code, sec. 18, that every action must be prosecuted in the name of the real party in interest means the party who is actually and substantially interested in the subject matter as distinguished from one who has only a nominal interest therein, the test being whether the plaintiff satisfies the .call of the person who has the right to control and receive the fruits of the litigation.</p> <p>2. Parties — Real Party in Interest. — In a suit hy the Commonwealth against a state depository to recover money paid out on the forged endorsements of a state employee, where according to the terms of a compromise agreement entered into between the Commonwealth and the surety of the defaulting employee a previous suit against the state auditor is to he dismissed and a new action, (the present one), is to he instituted hy the Commonwealth against the depository, in which latter action the attorneys for the surety company are to represent the Commonwealth, and before the Commonwealth is to receive anything out of any recovery that might he had the surety is to he reimbursed for the sum paid hy it in compromise to the Commonwealth, together with an agreed attorneys’ fee, and where the maximum sum recoverable in the present suit is less than the sum to which the surety is entitled to reimbursement under the stipulation, it results that the company and not the Commonwealth is the real party in interest and consequently the latter is without power to maintain the suit.</p>

<p>1. Counties — Contracts for Election Supplies — Duties of County Cleric. — The county clerk is not required to let by competitive bids contract for election supplies which, by section 1465, vol. 3, Kentucky Statutes, he is required to provide.</p> <p>2. Counties — Contracts for Supplies — Fiscal Court Bound by. — The fiscal court is bound by the contract of the county clerk for such supplies, except where the contract is the result of fraud upon the part of the vendor or of fraudulent collusion between the vendor and the county clerk.</p> <p>3. Counties — Contracts for Election Supplies. — Where such contract is unenforcible, the vendor may recover the reasonable value of such supplies, as were received by the county clerk and used at the election.</p> <p>4. Appeal and Error — Instructions.—Instructions whether ' right or wrong are binding upon a jury and a disregard thereof will authorize a reversal, but there is no disregard of the instructions where the verdict is sustained by the evidence under one of tw® instructions given.</p>

<p>1. Negligence- — Inducing One to Come Upon Premises — Ordinary Care of. — The owner or occupant -of premises who induces others to come thereon by invitation express or implied, owes them the duty of using ordinary care- to keep the premises in -safe condition, but is not an insurer of the safety of such persons.</p> <p>2. Negligence — Assumption of Risk. — An invitee who uses a damp floor with knowledge o-f its condition assumes any risk incident thereto.</p> <p>3. Damages — Personal Injuries — Instructions.-—-In suit, for personal injuries, the court did not err in directing a verdict for defendant where plaintiff proved that she -had knowledge of the moist condition which she claimed rendered the floor of defendant’s store unsafe and caused her to fall.</p> <p>4. Negligence — Care of* Owner of Store Room. — The mere fact the floor in a well lighted store room was moist or damp did not render it so dangerous as to- require of the owner in the exercise of ordinary care for the safety of his customers, that he should place barricades across the entrance and prevent its use altogether.</p>

<p>Covenants — Action on to Convey — Damages for Failure to Convey — Measure of Damages. — In a suit by the vendee against his vendor upon an executory contract to convey land, there can be no recovery for substantial damages because of the loss of vendee’s bargain, where the vendor was not guilty of any active fraud or bad faith amounting to tortious conduct; but if he actively deceived the vendee, or wilfully refused to convey, or disabled himself to convey after entering into the contract, or was otherwise guilty of such wrongful conduct, then the measure of damages would be the difference between the contract price and the reasonable market value of the land at the time the deed was agreed to be made. The case of Jenkins v. Hamilton, 153 Ky. 163, in so far as it asserts a contrary doctrine, is overruled.</p>

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

<p>1. Taxation — Payment Before Due — Voluntary Payment. — Tbe payment of taxes before they are due for the purpose of getting the benefit of a discount fixed by law, and at a time when their collection could not have been coerced, is a voluntary payment.</p> <p>2. Taxation — Voluntary Payment to Municipality — Recovery.'—The rule, that taxes voluntarily paid to a municipality cannot be recovered back, is based upon the high, sound, public policy that the orderly and efficient administration of municipal affairs should not be interrupted or interfered with by requiring it to return to taxpayers taxes voluntarily paid, and which have been used or apportioned by the municipality to its various administrative bodies.</p>

<p>1. Municipal Corporations — Maintenance of Streets and Sidewalks.— It is the duty of a municipality to construct and maintain the sidewalks upon its streets in a reasonably safe condition for travel by pedestrians to the full width of the sidewalk.</p> <p>2. Municipal Corporations — Abutting Owners — Defects in Sidewalks. —An occupant of abutting property is not liable for defects in the sidewalk, which he did not create, nor for failure to repair a sidewalk, if he did -not cause the necessity therefor.</p> <p>3. Municipal Corporations — Abutting Owners. — If an abutting property owner create.s a servitude upon a sidewalk, which is in addition to the general use the public may make of the sidewalk, and which is for the exclusive benefit of himself, or of his property, he is under a duty to so maintain it, that it will not'become a -nuisance.</p> <p>4. Municipal Corporations — Servitude Upon Sidewalk — Nuisance.—A subsequent owner or lessee of property to which ther-e is attached, for its benefit or the benefit of the occupant of same, a servitude upon the sidewalk, abutting thereon, which is in addition to the use the public may make of the sidewalk is under -obligation to maintain the servitude, in a way so that it will not become a nuisance, and if he fails to do so, he will be liable for the damages arising therefrom, if he appropriates the servitude tó his use and benefit or the benefit of his property.</p> <p>5. Nuisance — Private Nuisance — Failure to Abate. — A subsequent owner or lessee of property, having a private nuisance thereon created by the former owner will not be liable for the consequences of it, until requested to abate it, but, if the nuisance is a public one, he will be liable, if he has knowledge of its hurtful character, without request to abate it.</p>

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

<p>1. Carriers — Possession of Consignee. — The possession of a carrier is ordinarily the possession of the consignee, but this is only a presumption and may be rebutted.</p> <p>2. , Shipping — Carriage of Goods — Bills of Lading — Pledge to Bank.— Whether the title and possession of property passes from the shipper to the consignee depends upon the purpose and intention of the shipper; in this case the shipper consigned certain merchandise to appellees in accordance with a previous agreement to ship same, to be applied on his debt, but he retained possession of the nonnegotiable bills of lading, and on the same day drew his draft on the consignees for the value of the property and attached the bills of lading to it and sold the draft to a bank. Under such circumstances neither the title nor the possession passed from the shipper, and the goods represented by the bills of lading were in pledge to the bank.</p> <p>3. Shipping — Title to Goods — Liens.—Appellees had no interest or equity in merchandise consigned to them, where the shipper retains the hill of lading and pledges it, and the title remaining in the shipper, his pledge of the same to the bank gave it a prior lien.</p>

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

<p>1. Estates — Difference Between. Limitation and Condition. — The difference between a limitation and a condition is that in the case of a limitation the estate determines as -soon as the contingency happens, without any act on the part -of him who is next in expectancy, while in the case of a condition, the estate continues beyond the happening of the contingency unless the grantor or his heirs, or the devisor or his -heirs, take advantage of the breach of the condition a-nd make an entry or claim in order to avoid the estate. Furthermore, if the condition be void, the grantee takes the estate freed of the condition, and the condition is void if impossible at the time of its creation, or afterwards becomes so by the act of God, or of the grantor, or if it is contrary to law or to public policy or repugnant to the nature of the estate.</p> <p>2. Deeds — Estate- Created— Limitation— Condition — Construction.— A deed from a husband to- his wife containing the provision, “The second party is to have the first described property so long as she lives or remains his widow, should first party die first. At the death of second party, or should she marry again, then this property goes to the children of the first party by his first and second wife,” conveyed an estate on limitation and not on condition.</p>

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

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

<p>1. Indictment and Information — Dupliaity.—An indictment is not duplicitous if it charge but one offense even though it contain other averments not necessary to the first charge but which when taken alone do not charge another offense.</p> <p>2. Indictment and Information — Surplusage.-—On timely motion the trial court will strike any superfluous words or averments from an indictment, but this is not accomplished by general demurrer.</p>

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

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

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

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

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

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

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

<p>1. Divorce — Grounds—Cruel and Inhuman Treatment- — Evidence.— Where defendant, in a suit filed by his wife to obtain a divorce on the ground of cruel and inhuman treatment, admits that he struck her with his- fist and blacked her eye and bled her nose, and on another occasion pulled out a considerable portion of her hair, he will not be allowed to excuse himself for such conduct -on the ground that he acted in self-defense, unless his contention is established by clear and convincng proof, which the testimony in this case failed to do, as is -shown in the opinion.</p> <p>2. Divorce — Faults—Physical Force as Correction. — It is the duty of either spouse to bear with patience -the faults and foibles of the other and not to try to correct them by physical chastisement or other methods calculated to produce quarrels and encounters. If the conduct of the offending spouse is such as to warrant it, relief may be had in the courts and it should not be sought by physical force.</p> <p>3. Divorce — Alimony—Evidence.—Under the evidence as recited in the opinion the wife should have been granted an absolute divorce and monthly alimony in the sum of $25.00.</p>

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

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

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

<p>Evidence — Sufficiency—Contracts—Breach—Action for Damages. —In an action for damages for breach of a contract for the sale of wheat, evidence considered and held that the verdict on certain issues submitted to the jury was flagrantly against the evidence.</p>

<p>1. Pleading — Exhibits—Demurrer.—When a general demurrer to a petition is under consideration, the court can only look to the averments of the petition, and the exhibits filed as a part of it.</p> <p>2. Quieting Title — Pleading.—In an action to quiet titl-ei to land under section 11, Ky. Stats., the plaintiff to state a cause of action, must allege facts, which show, that hie is the owner of the land with a legal title, and in its actual possession, and that the defendant is asserting a claim to it, which is hostile to plaintiff’s title.</p> <p>3. Quieting Title — Pleading.'—In an action to quiet title, if the plaintiff undertakes to set out his title in bis petition, and, also, the title under which the defendant claims, he must allege facts, which show, that his title is superior to that of the defendant, or else it will be concluded, that the title of the defendant is superior, under the rule that a pleading must be construed most strongly against the pleader.</p> <p>4 Deeds — Exception in Deed. — An exception in a deed may be made of a portion >of itbe thing granted, which the grantor does not convey, or the exception may be made of a portion of the thing granted, which is already the property of another.</p>

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

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

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

<p>1. Municipal Corporations — Vacancy in Office oí Marshal. — The council of a town of the sixth class may fill by appointment a vacancy in the office of marshal.</p> <p>1 Municipal Corporations — Election by Council of Marshal. — Even though the. members of the council select the marshal by secret ballot, it is not an election within the meaning of section. 147 of our Constitution requiring all elections by persons in a representative capacity to be by a viva voce vote. Municipal Corporations — Officers—Compensation—Agreement as to.' — An agreement made between city officials and one about to be elected to fill a vacancy in the office of marshal that such person would accept the office and perform all the duty appertaining thereto for a salary less than that fixed by ordinance is unenforciible.</p> <p>4. Municipal Corporations — Records.—A city can speak only through its records and oral evidence of an agreement made by members of -a city council is incompetent to prove an agreement made between such city officials and one about to be elected to fill a vacancy in the office of marshal concerning the salary to be received by such marshal.</p>

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

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

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

<p>1. Mines and Minerals — Deeds—Construction.—When a dee-d upon its face imports a conveyance of the surf-ace and' minerals in a described tract of land and a warranty of title thereto -it cannot be construed into a conveyance of the -surface only simply because the minerals have been theretofore conveyed by the grantor to another by deed of record.</p> <p>2. Mines and Minerals — Warranty—Evidence-.—The fact that the prior deed to the minerals was of record or that the grante-e- ¡had actual knowledge thereof is insufficient to d-efeat a cause of action on the warranty, but such fact is competent though not necessarily controlling evidence upon the question of fraud or mistake.</p> <p>3. Mines and Minerals — Possession.—On-e in possession of the surface under a separate title thereto holds possession of th-e minerals in the land as trustee for the legal owner of same.</p> <p>4. Reformation of Instruments — Mistake—Evidence.—Evidence of a mutual mistake that will authorize reformation of a written con* tract must be of the most clear and convincing character, and constructive knowledge by the grantee that th-e grantor had theretofore conveyed the minerals in a tract of land is not alone sufficient evidence of mistake upon part of -the grantee to warrant the reformation of a deed purporting t-o convey the minerals -to him and which is not on its f-ace either -ambiguous or incomplete.</p> <p>5. Cancellation of Instruments — Pleading—Amendments.—The court did not err in refusing an amended pleading seeking cancellation of a written contract which was tendered upo-n the trial after all the- proof had been heard and when the offered pleading changed substantially the issues, neither it nor the proof suggested equitable terms for a cancellation, the case had been pending for more than a year and there was no showing why the amendment was not sooner tendered or request for a continuance.</p>

<p>1. Judicial Sales — Warranty of Title. — There is no warranty of the title of land sold at -a judicial sale, and the purchaser, who loses land thus sold by a paramount title, has no remedy, unless the owner of the land induces the purchase by an express warranty, or by representations as to the title.</p> <p>2. Judicial Sales — Defective Title — Exceptions.—A purchaser of land at a judicial sale, who discovers before confirmation of the sale that the title is defective, or that there is no title to be conveyed to him, may except to the report of sale, and will be excused from the payment of the purchase- money.</p> <p>3. Partition — Warranty of Title. — When joint owners of both posses- - sion and title voluntarily partition the lands between themselves, they may make such contract as to -the warranty of title as they choose, and will be- bound by it</p> <p>4. Partition — Warranty of Title. — If the joint owners of lands partition them without any contract as to -the warranty of the title of the portion allotted to each, or if there is a compulsory partition, each of the owners by implication warrants the title of the portion -allotted to each, but this warranty does not leixtend to an alienee of one of the partitioners after the partition is made, hut is confined in its benefits to the parceners and thisiir heirs, and does not run with the land.</p> <p>5. Infants — Sale and Conveyance Under Statutory Authority. — Where the lands of an infant -are sold at a judicial sale, the commissioner who executes -the deed to -the purchaser has no -authority to insert a clause binding -the infant to warrant the title, and if he does insert -such a clause, it w-ill not be binding upon the infant.</p> <p>6. Partition — Warranty of Title. — Whjelre there is a compulsory partition of lands between joint tenants, tenants in common or coparceners, the commissioner of the court -to convey the separate allotments, nor the court has any authority to insert in the deed a warranty of the title to the portions allotted, and if such, warranty is inserted in such a deed, in the absence of any fact creating an estoppel to deny the obligation upon the warranty, the owners will not be bound by such warranty so incorporated, except to the extent of the partitioned, and their heirs, and such warranty cannot be invoked by an alienee of on© of the joint owners after partition made, as it will not run with the land.</p> <p>7. Judicial Sales — Warranty of Title. — Although there is no warranty of the title of lands sold at a judicial sale as against the owner of the lands sold, but if there is a previous warranty of the title to the lands of such character, that it runs, with the land, the purchaser will receive the benefits of such warranty along with his purchase of the land, and may invoke same as against the warrantor.</p>

<p>1. Easements — Appurtenant or in Gross. — A granted easement in land will be presumed to be one appurtenant to the servient estate and not one in gross; and where the easement consists of a private passway, which is stated in the writing to be for the benefit of the farms of the owners who'executed it,_ it is an appurtenant to the lands and not one in gross.</p> <p>2. Easements — How Created. — An easement in land may he creatsd by an unacknowledged instrument, but when so executed the deed may not b© recorded so as to give constructive notice. It will be binding, however, upon all privies of the grantor with notice, except that his heir or gratuitous grantee will be bound by the grant even without notice.</p> <p>3. Easements — Defect in Grant of — How Cured. — Although the attempted grant of an easement may not be enforcible because of indefiniteness and uncertainty, still those defects will be cured by the act of the parties in locating and appropriating the passway or other easement.</p> <p>4. Witnesses — Interest in Subject Matter of Suit.' — A witness who is not a party to the suit and who might be incompisitent to testify because of Ms interest in the subject matter of the suit growing out of his warranty in a conveyance of it, may testify when his conveyance is a quitclaim deed only and Which removes all further interest of the grantor in the subject matter of the, conveyance.</p>

<p>Upon a motion before a judge of the Court of Appeals to dissolve a temporary injunction granted by the circuit -court.</p>

<p>Boundaries — Description.—In the location of lines from descriptions in title papers, if .there is a conflict between courses and distances and natural objects called for, the latter will control, •and the courses and distances will be changed so as to conform to the natural objects called for. The rule is based upon the •sound assumption that if there is a mistake, it is in the courses and distances ¡and not in th(ei fixed location of natural objects.</p>

<p>Appeal from Jefferson Circuit Court</p> <p>(Common Pleas Branch, 2nd Division).</p>

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

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

<p>1. Criminal Law — Chicken Stealing — Sufficiency oí Evidence. — On a prosecution for chicken stealing, evidence held sufficient to take the case to (the jury and to sustain the conviction.</p> <p>2. Criminal Law — Punishment — Constitutional Law — Validity of Habitual Criminal Act. — Section 1130, Kentucky Statutes, providing that ©very person convicted a second time of felony, the punishment of which is confinement in th© penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third timie, of felony, he shall be confined in the penitentiary during his life, is constitutional.</p> <p>3. Criminal Law — Trial—Continuance—Abuse of Discretion.' — The court did .not abuse its discretion in refusing the defendant a continuance, on the ground that he was old and broken down in health, and was not in condition, physically or mentally, to confer with his counsel or prepare his defense, wher© no evidence in support of the. affidavit was offered and there was substantial evidence to the contrary, and it did not appear that there was any other evidence which the defendant could have procured, or that his defense was not properly presented.</p> <p>4. Appeal and Error — Criminal Law — Trial—Postponement of Trial for Insanity Inquest. — Under Civ.il Code, sie'ot'Jon 156, providing that the court may postpone the proceedings in a criminal ease until a jury be empaneled to inquire whether defendant be of unsound mind, if t)he court be of the opinion that there are reasonable grounds to believe that defendant is insane, it was not error to refuse to postpone the trial for the purpose of having the defendant examined by two physicians, where the defendant^ made no affirmative showing that he was then insane, and the court took the precaution to inquire of the county physician and the jailer with reference to the defendant’s actions while in jail, and their testimony was calculated to remove any doubt as to defendant’s sanity.</p> <p>5. Jury — Refusal of Court to Instruct Sheriff That in Summoning Extra Jurors No Distinction Be Made Between Men and Women. —A motion that the court instruct the sheriff, that in summoning extra jurors no distinction be made between man and women, was properly overruled because the statute prescribes the method of summoning jurors, and unless the sheriff asks the advice of the court, the court is without authority to direct the sheriff how his duty shall be performed.</p> <p>6. Appeal and Error — Jury—Motion to Discharge Panel — Improper Remarks of Commonwealth’s Attorney. — Remarks of the Commonwealth’s attorney, made on the argument of the motion to have an inquest of lunacy before the defendant wasi put on trial, that every time the defendant had b/eien tried in the court he pretended to be crazy or s'itak when the time came for his trial, but the testimony in the case showed that he was neither sick nor crazy, was not prejudicial where thjei bill of exception» failed to show that any •of the jurors who tried the case were present in court when the ■remarks were made.</p> <p>7. Searches and Seizures — Right of Officer Without Warrant to Search Property Carried by One Under Lawful Arrest. — An arresting officer has the right without a warrant to search the person, of a prisoner lawfully arrested, and take from his person and hold for th|ei disposition of the court any property connected with the offense for which he is arrested and which may be used as evidence against him.</p> <p>8. Arrest — Arrest Without Warrant. — A peace officer has the right to arrest without a warrant when h)ei has reasonable grounds to believe that the person arrested has committed a felony.</p> <p>9. Appeal and Error — Criminal Law — Arguments .and Conduct of Counsel. — Improper argument of Commonwealth’s attorney held not prejudicial, in vi|etw of the fact that the court promptly sustained an objection itio his remarks and admonished the jury not to consider them.</p>

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

<p>1. Fraudulent Conveyances — Preferences—Parties—General Creditors. — In an action to have certain conveyances by a failing debtor adjudged to be preferential and operate as an assignment for the benefit of all of his creditors, a general creditor who has a claim on file is not a necessary party to an appeal from the judgment in such action.</p> <p>2. Fraudulent Conveyances — Preferences — General Creditors.— Where a creditor, of a failing debtor brings his action to enforce a judgment om a return of “no property found,” and seeks to have specific property applied to the payment of his judgment, and other creditors bring actions in . the same court seeking to have certain conveyances adjudged to he preferential, and the actions are consolidated, amd the first named creditor’s action is dismissed and all relief denied him, but at the suit of other creditors certain conveyances are adjudged preferential, whereby the first named creditor .is only incidentally the beneficiary of their action, he is only a general creditor and not a necessary party to an appeal from that judgment.</p> <p>3. Fraudulent Conveyances — Parties.—When his action was dismissed he was as effectually out of court as if ihe had never filed it, and occupied no position different, from that of .any othisr general creditor.</p>

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

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

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

<p>1, Criminal Law — Confession.—When a confession by a defendant ■in an indictment made out of court is obtained under circumstances and by such means as will exclude it, the same vice will operate to exclude a later on©,, unless it is shown by the Commonwealth that the circumstances under which, and the means by which, the first confession was obtained have been removed or dispelled; and this is especially true when the second confession is made witMn isuch a short time following the first one as that the vicious influences will bie presumed to continue.</p> <p>2. Criminal Law — Confession—Promises or Other Inducements. — A confession alleged to have been made to an officer immedllately upon arrest undier promises of immunity cannot be admitted, and another one, made to a different officer within less than am hour thereafter, will be presumed as made under the same vicious influence and will likewise be rejected, unless it be affirmatively shown that the influence was withdrawn, removed or dispelled before defendant made the second confession..</p> <p>3. Criminal Law — Confession.—Under the provisiras of section 240 of the Criminal Code a conviction cannot be had solely upon the confession of the defendant made out of court “unless accompanied with other proof that such an offense was committed.”</p> <p>4. Criminal Law — Proof Corpus Delicti. — No 'conviction can be had without proof of the corpus delicti, which in the crime of larceny is the fact that the property alleged to have been taken was actually stolen from the place - or person charged in thie indictment.</p>