Volume 192 — Kentucky Reports

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

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

2. Witnesses — Claim Against Es.tate of Deceased Person. — fncomipetent ©videnoe given by a claimant against the estate of a deceased person is not relieved of its incompetency 'by the subsequent denial thereof by the -personal representative after it has been erroneously -admitted over such representative’s objections and exceptions. 3. Principal and Agent — Witnesses.—Agency cannot be established by the opinions or conculsions of witnesses. 4.

<p>1. Damages — Pleading.—Such damages as naturally and necessarily result from an injury complained of are ¡general damages and need not be averred in the petition.</p> <p>2. Malicious Prosecution — Damages—Pleading.—Humiliation, mortification and loss of reputation naturally and necessarily result from a malicious prosecution and are recoverable under a general allegation of damage, but counsel fees and other expenses which are the natural and probable result of the wrong but not the necessary consequence thereof are special damages and are mot recoverable unless specially pleaded.</p> <p>3. Appeal and Error — Instructions.—One may not complain upon appeal of an instruction, even if erroneous, to which he did not object on .the trial.</p> <p>4. Damages — Excessive Damages — Evidence.—Complaints that a verdict is excessive and not sustained by the evidence -are directed to the evidence and not the instructions.</p> <p>5. Malicious Prosecution — Excessive Damages — Evidence.—Verdict of $500 in an action for malicious prosecution by having plaintiff arrested for vagrancy not excessive under the evidence which clearly established malice and want of probable cause.</p>

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

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

<p>1. Master and Servant — Workmen's Compensation Act — Elective Statute. — The workmen’s compensation act oí 1916 is an elective and not a compulsory statute', and neither employer nor employe ■is brought under its provisions until they voluntarily accept them.</p> <p>2. Master and Servant — Election by Employe — Signing Notice.— Election by the employe to operate under the provisions of the act is effected by his signing the notice prescribed by section 74 of the act, contained in printed form in the employer’s register. Such signing of the register by the employe makes his acceptance of the provisions of the act effective from, and including, the date of signing.</p> <p>8. Master and Servant — Finding of Board — Evidence.—The finding of the workmen’s compensation board in this case that the appellant's decedent did not upon entering the 'employment in which he met his death, or while engaged therein, .elect to operate under the provisions of the compensation act by signing the employer’s register, is sustained by the evidence; (hence, the award of the board rejecting appellant’s claim to compensation under the act for his death will not, on appeal, be disturbed.</p> <p>4. Master and Servant — 'Election of Employe — Signing Notice.— Where, as in this case, the decedent had several years prior to his death upon entering the service of the same employer, elected to accept the provisions of the compensation act by 'signing the employer’s register, but thereafter quit the service of the latter and entered into, and for sixteen months continued in, the employ of another in a different state; and then re-entered the service of the first employer, his signing of the register under the first employment in acceptance of the provisions of the compensation act, did not, if he wished to accept its provisions under the last employment, relieve him of the necessity of making his election to do so, by again .signing the employer’s register, upon undertaking the last employment.</p>

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

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

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

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

<p>1. Interest — Application of Payments. — Where an obligee accepts payment from one of two joint obligors of his individual part of a debt and releases him of further liability there remains unsatisfied only the individual and isolated obligation of the other with simple interest, and the obligee is not entitled to have the payment treated as a partial payment on the joint obligation for the purpose of compounding interest against the remaining obligor.</p> <p>2. Novation — Interest.—A writing which simply acknowledges liability for an old indebtedness about to be but not barred by the statute of limitations and does not contain any new promise is not a novation and does not authorize adding accumulated interest to the principal on the date thereof and the calculation of interest on that sum thereafter.</p>

<p>1. Officers — Interference When Officer Makes Arrest. — A sound, high and unimpeachable public policy requires not only a strict enforcement of the criminal and penal laws, but that those primarily entrusted with the duty of enforcing them shall not be subjected in their official conduct to unwarranted interference from others.</p> <p>2. Carriers — Interference by Conductor of Train With Arrest by Officer. — A conductor of a railroad train owes no such duty to his passenger as to require him to interfere with, or attempt to prevent, his arrest by a known 'officer of the law, while on the train, unless, under the facts, all known, to the conductor, therei could be no doubt as to the unlawfulness of the arrest; it must be a plain, unmistakable case which does not require tlhe conductor to pass- upon a technical question.</p> <p>3. Carriers- — Opposition by Conductor of Train to Arrest by Officer. -r-A railroad -conductor is not required in the protection of his passenger to enter into a contest with or put himself in opposition to a known officer of the law who is -apparently acting within the scope of his authority.</p> <p>4. Carriers — Arrest—Interference With by Conductor of Train. — A conductor is not authorized, in the protection of his passenger, although he had information that the arresting officer had no warrant, to assume from that fact that the arrest was unlawful.</p>

<p>1. Judicial Sales — Parties.—Under section 491 of the Civil Code only the owner 'of the particular estate and the contingent remainder-men in whom title would have vested if the contingency had happened before commencement of the action are required to be made parties to an action for sale of .the land for reinvestment, and such remaindermen who ar.e adults may join as plaintiffs in such action.</p> <p>2. Descent and Distribution — Estates..—Where certain lands were devised to testator’s son for life with remainder to the latter’s children, but to others if the testator or his .estate should be required to pay an indebtedness of the son upon which the testator was surety, the interests devised to the son and his descendents were not divested to others where after testator’s death some of his other devisees joined with the son in conveying a portion of the land devised to him to a stranger and with the proceeds .paid the son’s indebtedness, even though the payment was made through the named executors but who in so doing were acting as individuals and not as executors.</p> <p>3. Descent and Distribution — Payments.—The named executors are held to have been acting as individuals for the son and not as executors for the estate in making such payments whene the power to act as they did was denied them by the will and the evidence shows they wenei acting for the son. i</p> <p>4. Judicial Sales — Equity.—-A purchaser by deed from the life tenant and the first .set of successive contingent remaindermen of a portion of the land so devisad would have no equity in another portion of said land which was sold (herein for reinvestment under section 491 of the Code if later he should be divested of title by the happening of a contingency that would destroy every interest his grantors ever had in the whole tract.</p> <p>5. Judicial Sales — 'Setting Aside. — The mere fact an executed deed in tba chain of title to land sold in a judicial proceeding is not of record is not ground for setting the sale aside upon exception of the purchaser.</p> <p>6. Judgment — Clerical Misprision. — A judgment rendered before an action stood for trial under the Code is a clerical misprision and upon motion may be corrected by the trial court at any time. Sections 517 and 518, Civil Code of Px*actice.</p> <p>7. Judicial Sales — Equity—Burden of Proof. — The burden is upon the purchaser of proving alleged outstanding equities or defects in the title of land purchased by him at judicial sale.</p> <p>8. Lis Pendens. — Due Prosecution. — Due prosecution is a fundamental part of the lis pend’ens doctrine.</p> <p>9. Execution — Levy Under — Limitation of Actions. — In the absence of a showing to the contrary it will be conclusively presumed after eleven years that a proceeding to enforce an execution levy has been abandoned or concluded.</p> <p>10. Lis Pendens — Sale—Setting Aside. — Proof of a lis pendens on execution levy eleven years previous to a judicial sale of land for reinvestment under 491 of the Code furnishes no grounds for setting the sale aside upon exception by the purchaser.</p>

<p>1. Executors and Administrators — Compensation for Services. — The law will imply no contract for compensation for services rendered by a near relative to another, or by one occupying a family or domestic relationship to .another, and compensation for such services will be denied i-n the absence of an express contract therefor, which contract may be shown by testimony that both thia party rendering the service and the one receiving it expected and understood that compensation would be made.</p> <p>2. Executors and Administrators — Compensation for Services — Contracts. — While .expressions of gratitude by the one receiving the services or a desire that the one rendering them shall be compensated will not be sufficient to establish an express contract to pay for the services, yet an agreement to pay out of a fund as soon as it is obained and if it is n'ot obtained before dieiath to provide for payment at death out of the promisor’s estate will be sufficient to establish an express agreement to compensate.</p> <p>3. Evidence — Appeal and Error — Testimony of Incompetent Witness. —Testimony of an incompetent witness though objected to will be considered on appeal where the objections were not passed upon by the trial court upon thei ground that the exceptions will be deemed as waived by the exceptor.</p>

<p>1. Master and Servant — Injuries to Servant — Assumption of Risk.— The statement that a servant never assumes risks arising from a master’s negligence is too broad, the correct statement of the rule being that the servant never assumes risks growing out of the master’s negligence unless he knows of the failure of duty and consequent danger, or the failure of duty and the danger therefrom are so obvious that an ordinarily prudent person in his situation would have observed the one and appreciated the other.</p> <p>2. Master and Servant — Liability for Injuries — Overtaxing Strength - — Failure of Master to Furnish Sufficient Force to Do the Work— Assumption of Risk.- — Though, the master fail ito furnish a suffi' cient force to do the work, a servant engaged with others in lifting steel rails assumes the risk if he knows, or it is plainly obvious to a person of ordinary prudence in his situation, that, because of the lack of a larger force, he is being subjected to a severe strain and nevertheless continues the work and suffers an injury from overstraining.,</p>

<p>1. Wills — In-com-e—Interest.—Where a widow to whom the will of her husband devisied the use and income of his entire estate, real and personal, for life-, with remainder at her death to certain of his relatives, -sold bank -stock left her for life by the will and eon- • verted the proceeds to her own use, her estate after her death was by the judgment of the circuit court properly held liable to the remaindermen for the amount she realized for the bank stock. The bank stock being a part of the corpus of the devised estate, -she was not entitled to appropriate it -or its proceeds. Her estate was, however, prope-rly relieved by the judgment of liability for the interest that accrued thereon, as under the terms of the will it constituted income she as life- tenant was entitled to enjoy.</p> <p>2. Executors and Administrators — Counterclaim—Payment of Taxes. —The rejection by the chancellor of so much -of the counterclaim of the widow’s administrator as sought credits against the- remaindermen for amounts expended by her for taxes upon the entire estate and repairs to the real property while- held by her, was not error, as both the taxes and cost of repairs were under the testator’s will properly chargeable, to the life estate and should have been paid by her as life tenant.</p> <p>3. Executors and Administrators — Services.—The item of $5,330.00 in the counterclaim for alleged -extra services claimed to have been rendered by the widow -as executrix of her husband’s will was properly disallowed. First, thene- was no proof of unusual -services. S-e-cond, for such services -as she rendered a commission -of five per cent, would have been the maximum limit under the law; and as she was allowed four per cent, for all moneys received and paid out by her as -executrix, and was satisfied with the allowance, an additional -allowance would have been improper.</p>

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

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

<p>1. Wills — Life Estate and Remainder — Construction.—Where a testator devises to one a life estate in land, and the remainder interests therein to others, the remaindermen take a vested estate in remainder upon the death of the testator, unless there is some provision of the devise, which shows, that the testator intended that the estates in remainder should not vest, until at some other period.</p> <p>2. Wills — Remainder—Testamentary Intent. — Where the terms of a will are such that a remainder interest in property vests in the designated remainderman, upon the death of the testator, the estate thus devised, will not b© defeated by his death prior to that of the life tenant, unless such defeasance is provided for by some provision in the will, which shows that it was the intention of the testator, that the remainder thus devised, should be defeated by such happening.</p> <p>3. Wills — Life Estate and Remainder — Vested Remainder. — Where a life estate in realty is devised to one and the remainder interests converted into personalty by a direction for a sale of the lands, at the termination of the life estate, and the payment of the proceeds to certain designated persons, the latter in the absence, of anything showing a contrary intention of the testator, take a vested remainder in the interests thus converted into personalty.</p> <p>4. Wills — Life Estate and Remainder — Election to Retain Land.— Where realty is devised to one for life, and the remainder interests are directed to be sold by the executor at the termination of the life ©state, and the proceeds paid to certain designated legatees, the remainder interests will be considered to have been converted into personalty, at the date the, will begins to operate upon the property, but, the legatees, being sui juris, and all concurring, may elect to retain the land, in lieu of receiving the proceeds, and when they do so, by some affirmative act clearly manifesting their election, the power of the executor to sell is extinguished.</p> <p>5. Remainders — Conversion Into Personalty. — Persons, to whom remainder interests are devised in lands, which have been converted into personalty by the acts of the testator, requiring the lands to be sold, and the proceeds paid' to the devisees in remainder, at the termination of the life estate, and in whom the remainders have vested, may by deed convey their interests in the lands, and thus remove their character as personalty, and pass the title to the vendee, and such act will bind the iheirs and representatives of the remaindermen, although done before the period at which the lands are directed to biei sold</p>

<p>1. Mines and Minerals — Oil and Gas Lease — -Rents.—This court is committed to the doctrine that in the execution of oil and gas leases the main consideration on the part of the lessor is the development of the property, and the payment of royalty, and that the lessee can not, in opposition t-o the wishes of the le-ssor, refuse to begin the development of the property for an unreasonable time and extend the lease indefinitely by the payment of the nominal rent after the expiration of the time provided in the lease for development. In conformity with this rule the lessor may at any time before the rental is due for a future- period give notice to the lessee that he will not -accept rent for that period and that he will demand a development of the property in li-eu of the payment -of the nomnal ren-t, and unless the lessee proceeds within a reasonable time thereafter to develop the property and prosecutes it with reasonable dispatch, the lessor may by proper proceedings cancel the lease and forfeit all of the rights of the lessie-e thereunder.</p> <p>2. Mines and Minerals- — Oil and G-as Lease — Rents.—If the lease does not require the rentals accruing upon non-development to be paid in advance they may be paid or tendered at any time during the rental period; and it is competent for the parties to agree in the leasiei as to how-such payment m-ay be made- and the person or persons to whom it may be made, and if the provision is that i-t may be made by a deposit in a named bank to the credit of the lessor such a deposit within the- time will constitute a valid payment as effectual as if made to the lessee in person.</p> <p>3. Mines and Minerals — Rents—Notice.—It is not competent for the lessor i-n giving notice that he will receive- no future rents, and in demanding development, to arbitrarily fix a period within which -such development may be made upon the ground that -such fixed period constitutes -a reasonable time for that purpose, since what is such reasonable- time is a matter to be settled by the court under the facts and circumstances of tjie case; and for the same ¡reason the time fixed in the lease for the development of the property is not necessarily conclusive upon the parties as to what constitutes a reasonable time for that purpose.</p>

<p>1. ' Corporations — Foreign, Corporation — Intent.'—Whether or not a foreign corporation becomes domesticated for all purposes by complying with the local regulations prescribin'»' the method, is a question of intention to be determined from a consideration of the statutes creating the regulations, and where it appears that thiei intention was to confer upon the foreign corporation certain powers, privileges and authority and not to make of it a new domestic corporation a compliance with such statutes will have only the latter effect.</p> <p>2. Corporations — Organization Tax. — Thie organization tax demanded by section 4225 of the Kentucky Statutes may be collected only from Kentucky corporations created and made so under its laws and it can not be collected from foreign carrier corporations which become domiesticated under sections 765 and 841 of the statutes.</p>

<p>1. Contracts — Performance Upon Contingency.- — Parties may enter into a contract to be- performed on a contingency either certain or uncertain, and performance may be demanded whenever the contingency happened, or by the exercise of the proper efforts on the part of the promisor it should have happened; and within this rule, if performance consists in payment, and it is to be made out of a particular fund, it can not b© demanded until that fund is realized, unless the failure to realize it is due to the neglect of the promisor ¡or his unreasonable refusal to take any action looking to a realization of the funds</p> <p>2. Contracts — Conditional Promise — Pleading—Evidence.—In a suit on a conditional promise to pay out of a designated fund, the burden is upon the plaintiff to both allege and prove either the realization of the fund, or that it could have been realized by the proper efforts on the part of the defendant.</p>

<p>1. Arnest — Arrest Without Warrant. — An officer may make an arrest ■without -a warrant when the offense is committed in his presence, or if not committed in hi® presence if he has reasonable grounds to believe that the person arrested has committed a felony and if the facts upon which he acts, as constituting reasonable grounds for his belief, are sucih as to induce in the mind of a reasonably discreet and prudent person, situated as the officer was, the belief that the person apprehended had committed a felony, the arrest will be legal although it should eventually turn out that in fact no offensei had been committed.</p> <p>2. Searches and Seizures — Search of Person, Baggage or Vehicle — ■ Arrest. — No one, not even an officer, i® allowed to search one’s premiaes, person or belongings coercively and without his consent and against his protest for the purpose of obtaining evidence against him, and evidence thus obtained can not be used against the accused; but a search of one’s person, or the baggage or vehicle in his possession at the time he was lawfully arrested, is not an unreasonable search a® is denounced by the constitutional provisions, and evidence so obtained is competent evidence against the one arrested upon his trial for the offense preferred against him.</p> <p>3. Burglary — Possession of Burglars’ Tools. — Upon the trial of one under an indictment for having in his possession burglars’ tools, with the intention of using them burglariously as denounced by ■section 1159 of the Kentucky Statutes, it is not essential to constitute the crime that the tools and implements found in the possession of the accused should be specially manufactured or designed for the use of burglars, since it is sufficient if the tools and implements are such as are generally used by burglars and which are suitable for that purpose, although they also may be such tools and implements as are manufactured and used -for lawful purposes.</p>

<p>Wills. — A devise to a wife of property to be beld and controlled by her for any purpose she may see fit during her natural life, and at her death to be distributed among devisor’s heirs, did not invest her with power to convey the fee, but only with power to use the property during her life.</p>

<p>1. Criminal Law — Voidable Judgment — Effect.—A Judgment of conviction in a criminal case when merely erroneous or voidable, like that in a civil case, is, until vacated or reversed, conclusive! of what it decides.</p> <p>2. Criminal Law — Judgment—Collateral Attack. — The mere fact that the trial court overruled appellant’s motion to be allowed to prosecute the appeal in forma pauperis was not a denial of the right of appeal, and if the trial court abused its discretion in overruling the motion, it was subject to review by this court, but the judgment though voidable can not be attacked collaterally.</p> <p>3. Criminal Law — Indeterminate Sentence Law — Effect of Finding Under. — As there was no indeterminate sentence law when appel- ■ lant was convicted the judgment should have bieen treated for two years only, because no discretion is conferred upon the prison officials to continue the confinement.</p> <p>4. Criminal Law — Mandatory Injunction — Pleading.—The petition for a mandatory injunction on the ground that the judgment fixing an indeterminate sentence was voidable stated a cause of action and the trial court erred in sustaining a demurrer to it.</p>

<p>1. Infants — Process.—A summons for. an infant under 14 years of age must be served upon the father, if living, and having a place of residence in t‘he state, and not upon the person with whom the child resides.</p> <p>2. Infants — Process.—If -there be nothing in the record to show that the father is living and that the process was served on the wrong person, the presumption will be that the sheriff did his duty and served the process upon the proper person.</p> <p>3. Judgment — Setting Aside — Infants.—A proceeding under section 518 of the Civil Code to set aside a judgment is a direct attack and is the proper mode of procedure where thie record does not disclose! the error or contention of the infant.</p> <p>4. Judicial Sales — Infants.—A sale under -a judgment where several adults are parties defendant and properly before the court, with one infant not before! tbe court, is valid and binding on all but the infant who was not properly before the court.</p>

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

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

<p>1. Counties — Election to Provide for Sale of Bonds for Road Purposes — Fiscal Courts. — Where, prior to an election to determine whether the voters of a county will authorize the issual and sale of bonds for turnpike and bridge purposes, the fiscal court of the county, upon recommendation of a committee appointed by its citizens at a mass meeting, enters an order classifying the various turnpikes of the county, and giving the mileage of each, and setting aside to each class a certain proportion of the fund to be realized from the bond salé, and providing that “each and every mile” of two classes of turnpikes named are to be improved with the proceeds, and fixing definitely the average cost per mile of such expenditure on the .several classes of turnpikes, it was beyond the -authority of the fiscal court to enter into any contract to pay out of the proceeds of the bond is-sue on any one pike an amount in excess of that fixed in the pre-election order.</p> <p>2. Counties — Election to Provide for Sale of Bonds for Road Purposes. — Even though the pre-election order was entered and the ■ bond issue authorized by tli,© voters with the purpose in view of getting the benefit of -state aid- in the reconstruction of the turnpikes, the fiscal court had no authority in contemplation of such state aid, to enter into a contract which would involve the payment -out of thia proceeds of the b-ond issue- -of a larger amount than that fixed in the order.</p> <p>3. Counties — Bonds for Road Purposes — Pleading.—The pleadings being uncertain and indefinite as to whether any work was done under the contract in issue ble-fore the filing of the suit, and no issue being made as to the propriety or legality of such payments, if any, all auestion-s as to the legality of same are reserved.</p>

<p>1. Equity — Issues out of Chancery — Discretion of Chancellor. — In a purely equitable action a party is not entitled as a matter of right to a trial by jury of issues of fact, and if such trial be had the verdict is meriely advisory and the chancellor may disregard it.</p> <p>2. Husband and Wife — Property Accumulated by Husband in Wife’s Name. — Where it is shown in an action for discovery that the husband, who has failed in business and is largely indebted and who receives a good salary and is an active business man, has accumulated nothing in his own name, but has been conducting business in the name of his wife, who kept the house but did not attend to business on the outside and who had no property nor income, and accumulated property in her name which she claims against his creditors, the property so accumulated by the husband in the name of his wife will be subject to the claims of creditors of the husband.</p>

<p>1. Railroads — Domicile.—Appellee, who had left his home in Hart county in 1908 at the age of 24 and gone to Alabama to work for a railroad company, and worked there almost continuously until 1918, when lie was injured, remaining all the time unmarried, and during practically all that time being engaged as a member of a construction crew, which lived in boarding cars and went from one point to another on a railroad lime, and remained only a short timie at any given place, never acquired any legal domicile in the state of Alabama, and Hart county, Kentucky, to which he frequently made visits, amd which he claimed as home, was his legal residence, it being the theory -of the law that a man must have a legal residence at some place.</p> <p>2. Railroads — Domicile Pleading. — The plaintiffs petition having alleged Hart county as the county- of his residemce, a .special plea to •this jurisdiction filed by the defendant, affirmativly alleging that he was a resident of the state of Alabama, was merely an affirmative denial of the. plaintiff’s allegation.</p> <p>3. Trial — Evidence—Scintilla -of Evidence. — Although a verdict may be flagrantly against the eviidiemce, it is sometimes proper, under •our scintilla rule, to submit it to the jury.</p> <p>4. New Trial — Evidence.—Evidence examined and held to be flagrantly against the weight of the evidemdei, and that it was the duty of the trial court to- have granted a new trial.</p>

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

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

<p>1. Statutes — Criminal Law' — Continuance—Construction of Act. — An ■act to regúlate continuances in penal and criminal cases passed by tlie General Assembly in 1886, having been incorporated in and as a part of section 189 of the Criminal Code and same having in previous decisions been referred to and considered as a part of said section of the Code will be so treated and construed in the present proceeding.</p> <p>2. Criminal Law — Continuance—Affidavits.—Prior to 1920 upon the filing by the defendant of an affidavit for continuance and an agreement by the attorney representing the Commonwealth that it might be read as the deposition of the absent witnesses, if the trial takes place at the indicting term defendant is entitled to a continuance unless the facts stated werte admitted as true.</p> <p>3. Criminal Law — Continuance1—Construction of Act. — An act entitled “An act to aifaend and re-enact section 189 of the Code of Practice in criminal cases relating to continuances” passed at 1920 session of the General Assembly will be construed as constituting the whole of section 189 of the Criminal Code as it should appear after the approval of said act and any language or provision of said section or of earlier acts not incorporated in the new act are no longer in force.</p> <p>4. Constitutional Law — General Rules of Construction. — Whenever an act of the legislature can be construed and be given the force of a law so as to avoid conflict with the Constitution, the courts will adopt such a construction.</p>

<p>1. Master and Servant — Inexperienced or Youthful Employe. — A master who employs a servant contrary to the provisions of Ky. Stats., sec. 331a, is liable for all injuries sustained by the infant, having a causal connection, with his employment, and he is not relieved of this liability by the fact that the infant misrepresented his age, although the master may have engaged the servant in good faith upon the belief that his age was as represented.</p> <p>2. Master and Servant' — Infants—Employment in Violation of Law.— Under the provisions of Ky. Stats., sec. 4911, where an infant employed in known and wilful violation of law has been injured, the right to determine the existence of the requisite1 facts authorizing an election to sue at law or accept the benefits under this compensation act nests with the guardian, or in case of the infant’s death with his representative.</p>

<p>1. Criminal Law — Right of One to Kill Burglar. — A person may he justified in killing .a burglar or thief who is at the time committing a felony by attempting to break into his home, but a person ¡has not the right to kill another merely because in the night he comes upon the premises or eyien knocks at the door of his house.</p> <p>2. Criminal Law — Killing Intruder — Evidence.—To excuse or justify the killing of an intruder or trespasser on the ground that the person killed was on the premises for the purpose of committing a felony or attacking with evil intent the person in possession, the latter must introduce some evidence conducing to the establishment of this defense.</p> <p>3. Criminal Law — Appeal and Error. — A judgment of conviction w-ill not be interfered with upon appeal unless the verdict is so palpably agaJinst the weight of the evidence as to make it, appear at first blush that! the jury was influenced by passion or prejudice.</p> <p>4. Criminal Law — Evidence of Other Crimes. — Subject to certain exceptions evidence which in any manner ¡shows or tends to show that accused has committed other crimes wholly indie-pendent of that for which he is being tried, is irrelevant and inadmissible.</p> <p>5. Criminal Law — -Impeachment.—The evidence of bad character at a time long anterior to the date of trial should not be admitted until a basis is laid by proof tending to show that the character as of the date the testimony is given is then bad.</p> <p>6. Criminal Law — Impeachment.—Where there is an objection or a motion to limfit the effect of evidence pertaining to the reputation of defendant, the court should admonish the jury that such evidence is admitted for the ¡sole purpose of testing the accuracy and credibility of the witness and not as ¡substantive ¡evidence of defendant’s guilt of the offense charged.</p> <p>7 Criminal Law- — Defense of One’® Home and Family.- — Where accused had reasonable grounds to bieilieve and did believe he was in danger of death or great bodily harm at the hands of any member of an attacking party he had the right to use -such force as reasonably appeared to him to be necessary to prevlent any attempted entry into his house, or threatened death or bodily danger by any member of the party.</p>

<p>1. Criminal Law — New Trial — Newly Discovered Evidience. — As a rule a new trial will not be granted on account of newly discovered evidence which merely tends to impleach a witness, or to corroborate evidence which was given on the trial, but where the newly discovered evidence is of such a character as that it might have a decisive influence upon the result of the trial, a new trial may be granted.</p> <p>2. Incest — New Trial. — The only evidence against one accused of incest was 'that of his daughter and all of said charges were denied by defendant. Where the affidavits show that this newly discovered evidence would be explanatory of motives on the part of the daughter having a tendency to prove a malicious purpose on her part, and contradictory of the testimony of the prosecutrix, and which reasonable diligence could not have anticipated or discovered', and where accusled was confined in jail without the opportunity to prepare his ease, was unable to employ counsel, and the chief attorney appointed by the court to defend him, who had prepared his case, was not present at the trial, the circumstances are such that the court should have sustained the motion for a new trial.</p>

<p>1. Statutes — Subjects and Title of Acts. — Where a new and indepen- ■ dent act deals comprehensively with a single general subject, and ■that subject is expressed in the title, section 51 of the Constitution is not infringed by a partial, indefinite and inaccurate reference in the title to thie existing laws repealed thereby, or where there is a plurality of subjects (expressed in the title, unless mis- . leading.</p> <p>2. Statutes — Subjects and Titles of Acts. — Such references in the title are material to the validity of the act onljr when they indicate a purpose of dealing with only certain subdivisions or departments of the general subject and therefore; restrict the act to such subdivisions or departments or when they render the title misleading; otherwise they will be treated as surplusage.</p> <p>3. Statutes — Subjects and Titles of Acts. — It is not necessary that a new, independent and comprehensive act upon a single subject and which expressly ¡repeals all acts and -parts of acts inconsistent therewith shall -specify in its body or title the provisions of previous laws that are thereby repealed.</p> <p>4. Statutes — Supplying Omitted Words. — Words inadvertently omitted from a statute will be supplied where the context affords the means of correction so as to effectuate the legislative intent.</p> <p>5. Statutes — Increase of Penalty — Jurisdiction.—The fact a new act increases the penalty for violations thereof so -as to change the jurisdiction from inferior courts -as under previous -acts to the circuit court without express' reference to the question of jurisdiction does not -invalidate the act or any part thereof.</p>

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

<p>1. Banks and Banking — Due Diligence — Endorsers.—The words “due diligence” -employed in -a contract for the consolidation of two -state banks with reference to -the effort to bt& used hy the consolidated bank to collect the- no-t-es of one of the old hanks as a condition to liability of the old hank and its stockholders therefor, construed to mean ordinary care or such diligence as is usually employed under like circumstances hy -an ordinarily prudent banker to protect kimsleif from loss, -and not the due diligence to hold indorsers of the negotiable instrument law then and since in force.</p> <p>2. Banks and Banking — Ordinary Care. — Proof that the new bank bad notified the debtors and called upon them to renew or pay their obligations is not proof of ordinary care under the circumstances.</p>

<p>1. Quieting Title — Possession—Waiver.—In an action under section 11, Ky. Stats., to quiet title, the defendants waive the question of possession and elect to try title simply by asserting superior title and asking to have same quieted.</p> <p>2. Taxation — Sale of Land for Taxes — Title.—A tax sale and deed confer no title upon the purchaser unless the statutory provisions relating thereto have been strictly complied with.</p> <p>3. Taxation — Tax Deed Prima Eacie Evidence of Regularity of Sale. ■ — -A tax deed is prima facie evidence of the regularity of the salo and of all prior proceedings and the burden is upon the owner of the land attacking the validity of such a deed to allege and prove fatal irregularities.</p> <p>4. Taxation — Delinquent Taxes — Distraint.—By section 4149, Ky Stats., the sheriff is required to distrain personal property to satisfy a delinquent tax bill “if found in the county” before he may levy upon the land of the delinquent, hence a levy upon land when at the time there was sufficient personalty belonging to the delinquent upon the land that could easily have been found was irregular and proof thereof is sufficient to invalidate the sale of ■the land and the sheriff’s or auditor’s deed therefor.</p> <p>5. Taxation — Liens.—When such a deed is invalidated by reason of irregularities in any of the proceedings leading up to same the purchaser under the provisions of section 4036, Kentucky Statutes, has a lien upon the land for the amount of the taxes and costs paid by him with interest thereon, and for which he may have judgment against the owner.</p>

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

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

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

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

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

<p>1. Nuisance — What is a Nuisance. — A® a general rule, every unlawful use by a person 'Of his own property in such a way as to cause material annoyance, discomfort or hurt to other persons, or the public generally, and every enjoyment by one of his own property, which violates the rights of another in an essential degree, constitutes a nuisance.</p> <p>2. Nuisance — Public Nuisance — Private Nuisance. — A nuisance is public where it affects tbe rights, enjoyed by citizens as part of the public, that is, the rights to which evieiry citizen is entitled, whereas a private nuisance is anything done to the hurt, annoyance or detriment of the lands, tenements or hereditaments of another.</p> <p>3. Nuisance — Nuisancies Determined by Their Effect Upon Persons of Ordinary Health and Average Sensibilities. — Whether a particular annoyance is such as to constitute a nuisance depends on its effect upon persons of ordinary health and average sensibilities, and not on its effect upon persons who are delicate or super-sensitive, or whose habits, tastes or condition are such that they aria never sensible of any annoyance.</p> <p>4. Nuisance — When Noxious Gases and Offensive Odors Constitute a Nuisance. — A nuisance may consist in the ©mission of noxious gases or offensive odors in such quantities as to injure the health or materially interfere with the comfort of .the public.</p> <p>5. Nuisance — Abatement—When Order Closing Business Should Be Made. — In determining whether or not defendant is guilty of maintaining a common nuisance, the acts complained of must be viewed in the light of all the surrounding circumstances and conditions, and if when so viewed, they constitute a nuisance, the nuisance may be abated; but the extraordinary remedy of closing the business entirely should not be resorted to unless tha evidence be clear and convincing not only that the nuisance actually exists, but that if is maintained by the defendant.</p> <p>6. Nuisance — Abatement—Closing of Plant — Sufficiency of Evidence. —On a proceeding by .rule against the defendant to show cause why it should not be punished for contempt for its failure to comply with an order abating a nuisance, evidence examined and held that on the showing mad© below, an order closing the plant should not have gone, but that the rule should have been discharged.</p>

<p>1. Judgment — Conclusiveness—Parties and Privies — Taxation—Corporate Stock. — Kentucky Statutes, section 4085, provides that so long as a corporation pays the taxes on all of its property of every kind, the individual .stockholders shall not be required to list their shares in said corporation. A corporation owed the Commonwealth certain, taxes for the years 1904, 1905 and 1906. The Commonwealth sued for omitted taxes for those years and recovered judgments which were never modified but wieire paid. Thereafter, a city of the Commonwealth brought suit against the sole stockholder to recover taxes on his stock for the same years, on the ground that the corporation had not paid all of its taxes for those years. The stockholder pleaded the judgments in bar of the city's irght to recover: Held, that although neither the stockholder nor the city was a party to the actions in which the judgments were rendered, the stockholder was represented by the corporation, and the city, being but an arm and subdivision of the Commonwealth, and its right to collect on the stock being secondary to •the Commonwealth’s right to collect from the corporation, was represented by the Commonwealth, and that the judgments are conclusive on them and preclude the city from insisting that the corporation omitted other property for the years in question.</p> <p>2. Judgment — Res Judicata — Foundation of Doctrine. — The doctrine of res judicata does not depend on the amount due, the amount sued for, or the amount recovered, but rests entirely on the principle that parties and privies ought not to be permitted to litigate the same issue more than once.</p> <p>3. Judgment — Conclusivieness—Doctrine that Judgment is Conclusive Against all Persons Represented by the Parties Not Applicable Where Judgment Was Obtained By Fraud or Collusion. — The doctrine that a judgment is conclusive against all persons represented by the parties does not apply where the judgment was obtained by fraud or collusion.</p>

<p>1. Religious Societies — Conveyance of Property — Colony of Shakers. —Where it is shown by the covenants and constitution of a colony of Shakers that it is independent of all other colonies o,r brancheis of the society, recognizing the 'Superiority of the parent or mother, church in spiritual matters only, and where during a long period of years the local branch ha.s bought and sold property without the consent or .objection on the part of the parent society, and in the deeds to the local colony it only is named as grantee, and where owing to tire age and infirmities of the members of the society their property has been allowed to deteriorate, and they have found it necessary from time to time to dispose of a large part of their holdings for their maintenance, said society has the right to convey its remaining property to a non-member to whom the society is indebted, in consideration of the agreement on the part of- said grantee to deposit a stated sum of money for their current needs and ¡to provide support and maintenance for the members of the society during their lifetime, and to give them a suitable burial.</p> <p>2. Religious Societies — Colony of Shakers — Property.'—Mere recognition by a local oolany of Shakers of the authority of a parent society in matters .spiritual does not give the parent or mother society any right, interest, claim or ¡title in or to .the property belonging to the local branch.</p> <p>3. Religious Societies — Colony of Shakers — Property—Estoppel.— The parent church of the United Society of Believers called Shafcea-s, held estopped to assert an interest in or title to property conveyed by a local branch or colony of Shakers where the home .society by an act of the first in order of its ministry has approved of a conveyance by the local colony to a third person of a1! its property in consideration of the agreement of the grantee to provide for the welfare and maintenance of the remaining members of the local society and where the home society has fur-therm ore executed a quit-claim deed to the granite© in said conveyance.</p>

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

<p>1. Railroads — Federal Control Act — Venue.—Suits against carriers under Federal control must be brought in the county where plaintiff re-sided at the time of the accrual of the cause -of action, or in the county or district where the cause of action arose.</p> <p>2. Railroads — Federal Control Act — Negligence.—Prior to the Federal Control Act an administrator, under sec. 73 of the Civil Code, could bring an action against a carrier for negligence in the county of his residence, if the carrier passed into that county, although his intestate w.as killed or at the time of his death resided in a different county.</p> <p>3. Railroads — -Federal Control Act — Jurisdiction.—Where according to the uncontradicted facts both the decedent and administrator resided in the county of the latter’s appointment and the suit was brought in that county the circuit court had jurisdiction of the action, and this whether the action was brought under Federal control or under the provisions of the Civil Code.</p> <p>4. Railroads — Trespassers on Track. — Where trainmen discover a person on the track is in a place of danger they must exercise ordinary care by the means at their command to save such person from injury, as no one has the right to wantonly and needlessly cripple a human being, although he- be a -trespasser.</p> <p>5. Railroads — Trespassers on Track. — Persons operating a train who see persons on the track some distance ahead are not bound to immediately take steps to stop the train, but have the- right to-presume the persons will leave the track before the train -reaches them.</p> <p>6. Railroads — Trespassers on Track — Negligence.—In such cases it is not negligence in law on the part of the engineer if he fails to stop his engine in time to prevent an accident unless lie knows the party on the track is unconscious of his danger or is laboring under some disability or his condition prevents him from keeping out of the way or the party’s action or appearance gives evidence of some disability on his part.</p> <p>7. Railroads — -Trespassers.—The presumption that a trespasser will get off the track before the train reaches him does not exist as an abstract proposition of law and whether it obtains in any particular case depends upon all the circumstances surrounding parties at the time.</p>

<p>1. Partition. — Nature and Scope of Remedy. — The right of partition between joint owners of property, either real or personal, is a right favored by the law and it will not be denied except upon grounds clearly proven and apparent; hence the muniment of title of the joint owners will not be construed as forbidding partition when it is equally susceptible of a different construction. In such cases the construction favoring partition will be adopted.</p> <p>2. Reformation of Instruments — Proceedings and .Relief. — A writing will not be reformed, by the insertion of a clause which was alleged to have been left out by oversight or mistake, unless the alleged oversight or mistake as well as the matter proposed to be inserted is proven by clear and convincing evidence.</p> <p>3. Contracts — Contemporaneous Construction. — The rule of contemporaneous construction is never invoked unless the language to be construed is indefinite and ambiguous and is susceptible to more than one interpretation; but even then the conduct of the parties will not necessarily be characterized as a construction of the writing by them, if during the time there was no occasion to ' choose between one construction and another, and by common consent the parties acted in the manner they did without any thought of a different interpretation.</p>

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

<p>1. Indictment and Information — Duplicity.—An indictment is not dupiicitous which states but one valid cause but contains averments not necessary to such a cause and which, when taken alone, do not charge another crime.</p> <p>2. Larceny — Circumstantial Evidence. — Grand larceny may be proved by circumstantial evidence.</p> <p>3. Criminal Law — Records—Proofs of. — A record made by an absent witness may be proven by one in charge of the office and records, and who can also state that the record was made in the regular course oif business, contemporaneously with the transaction recorded and by a given employe whose handwriting he can identify.</p>

<p>Master and Servant — Workmen’s Compensation Act's — Award.— Under section 4890, Ky. Starts., an employer who has paid o,r becomes obligated to pay an award under the Workmen’s Compensation Act, may maintain an action in his own name or that of the injured employe against a third person guilty of negligence which brought about the injury of the employe and recover the amount of award so paid by or assessed against the employer; but an insurance company has no such right of action under our statute, or the general principles of equity, even though it pay the award.</p>

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

<p>1. Appeal and Error — Piling Transcript. — Where a party files in the clerk’s office of this court a copy of the judgment of the lower court within two years from its entry therein, and an appeal is granted him by the clerk of this court, and a summons issued from this court, and he thereafter files in the clerk’s office a trans-script of the record more than twenty days before the first day of the second term of this court after the granting of the appeal, the appeal will not be dismissed.</p> <p>2. Appeal and Error — Dismissal—Quashal of Summons. — On motion to dismiss an appeal or quash a summons issued from this court, upon ©rounds not appearing in the record, there being no affidavit filed, but only a recital in the written motion of counsel of alleged facts not disclosed by the record, the motion will be overruled.</p> <p>3. Attorney and Client — When Contract of Employment Void. — A contract of employment by the widow of a decedent of a lawyer to institute and prosecute an action for his death, .which restricted the right of the widow to qualify as administratrix, and gives to the attorney the unrestricted control of the claim, and of all funds of the estate until the same should he paid out by order of court, and denies to the widow the right to compromise without the consent of the attorney, and provides that if she does so compromise, he is to have a certain fixed fee of a large amount, is void as against public policy.</p> <p>4. Contracts — Void Contracts. — Where unenforceable provisions of a contract are so inextricably involved with that portion which is enforceable, and to expurgate from it the objectionable features would so far change the tenor and effect of the whole contract as that the court cannot assume that the parties would have entered into the same at all if the invalid parts were eliminated, the whole • contract will he declared invalid.</p> <p>5. Equity — Issue Out of Chancery. — After the final submission of an equitable action, and after the argument of counsel, it is too late to ask for a continuance and have a hearing before a jury of an issue out lOf chancery, and particularly where 'the party asking same had agreed for the chancellor ito enter judgment on the whole case.</p> <p>6. Attorney and Client — Quantum Meruit. — A plaintiff in an action on a contract for a fee, who alleges the value of the services rendered, and in his prayer asks for all proper relief, was entitled to a judgment on quantum meruit for the value of his services where the contract sued on was adjudged invalid.</p>

<p>1. Elections — Primary Elections — Contest—Notice.—Tbe notice given by tbe contestant in a primary election pursuant to tbe provisions of subsection 28 of section 1550 of the Kentucky Statutes, where the ground of contest is the casting of illegal votes, should specify the names of the persons who cast them as well as the facts showing the incompetency of the questioned voters.</p> <p>2. Elections — Primary Elections — Contest—Notice.—The court upon the trial of such a contest may open the ballot boxes and count the votes of all the precincts called in question upon a naked charge of mistake, oversight or fraud on the part of the officers making the return; and in order to entitle the contestant to the recount it is not imperatively necessary that he should expressly use the words “mistake,” “oversight” or “fraud” in stating his grounds of contest, it being necessary only that those charges should be made in language sufficient to clearly imply them.</p>

<p>1. Elections — Primary Elections — Contest—Pleading.—In a primary election contest the same exactitude and particularity in pleading are not required as in ordinary suits at law.</p> <p>2. Elections — Primary Elections — Contest—Notice.—In such a' contest an allegation in the notice, that by reason of the fraud or mistake of the election officers in counting and certifying the ballots in certain precincts, the result reached was erroneous and not true and registered a false result, and that the contestant, in fact, received the highest number of legal votes, stated good grounds of contest.</p> <p>3. Elections — Primary Elections — Contest.—Although there was no allegation that the contestee did not receive as many votes as certified for him by the election officers, there being an allegation that the contestant received more legal votes than the contestee and that by reason of the fraud or mistake of the election officers that result had been reversed, it is immaterial whether the contestee received more or less votes than those certified for him by the election officers, if the recount showed that the contestant received more legal votes than did contestee.</p> <p>4. Elections — Fraud—Mistake—Notice.—Although it is alleged in the notice that by reason of fraud or mistake the ballots alleged to have been erroneously counted for contestee had been cast and should have been counted for contestant, if the evidence shows that these ballots were erroneously counted for contestee but had not been, in fact, cast for contestant but for other aspirants, they shoul.d be deducted from contestee’s total although not added to ' contestant’s.</p>

<p>1. Elections — Primary Elections — Contest—Notice—Amendments.—It was error for the trial court to refuse to file an amendment to the notice áüd grounds of a primary election contest, which did not contain new grounds of contest and where the filing of same would not occasion delay or work a hardship or injustice upon the contested.</p> <p>2. Elections — Primary Elections — Contest—Notice—Time.—An intervening Sunday is to be excluded in computing the five days allowed by subsection 28 of section 1550, Ky. Statutes, for serving notice and grounds of contest in a primary election.</p> <p>3. Elections — Contest—Notice.—A notice of contest is sufficiently definite as to place which warns the contestee to appear and defend “at the court house in Pikeville, Pike county, Kentucky.”</p> <p>4. Elections — Primary. Elections — Final Order. — Under subsection 28 of the primary election law (section 1550, Kentucky Statutes) this court upon appeal renders all necessary final orders where there has been a trial upon a general submission below and the record renders possible a final trial here, but where no such trial was had below and the contest was dismissed on demurrer or other preliminary motion and before proof was taken on the issues, this court upon a reversal will remand the case for further proceedings as in other cases.</p>

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

<p>1. Appeal and Error — Final Order. — A judgment or order of court, or judge thereof, which does not end or finally dispose of an action or proceeding is not appealable. A final judgment or order is such as at once puts an end to the action or proceeding by declaring the plaintiff has either entitled himself, or has not, to recover the remedy sued for; it disposes of the merits of the case and settles the rights of the parties under the issues made by the pleadings and thereby puts the parties out of court,</p> <p>2. Appeal and Error — Final Order — Elections.—An order of the circuit court, or judge thereof, sustaining a special demurrer to a notice and petition instituting an election contest, on the ground of want of jurisdiction, hut which fails to dismiss or otherwise finally dispose of the contest, is not a final order or judgment from which an appeal will lie.</p> <p>3. Elections — Contest—Mandamus.—In such case the remedy open to the contestant is provided by the writ of mandamus, which, upon his petition, may he granted by the Court of Appeals, under the authority conferred by section 110, Constitution, not for the purpose of requiring the setting aside of the order complained of, but to compel the circuit court or judge to enter such further order or judgment as will end and finally dispose of the case; and, upon the petition of the contestant and showing of facts made by the record before this court, such writ is granted in his behalf.</p> <p>4. Mandamus — Discretion—Correction of Decision. — The writ of mandamus may be issued to compel action on the part of a judicial officer; but if the latter has a discretion over the subject matter the writ will not issue to control such discretion, although it may have been improperly exercised. If, however there is a refusal to act upon the subject matter, or to pass upon the question upon which such discretion is to be exercised, then the writ may be used to enforce obedience to the law. But when the question has been passed on the writ will not be used for the purpose of correcting the decision.</p>

<p>Appeal from Harlan Circuit Court.</p> <p>Petition for Writ of Mandamus.</p>

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

<p>1. Statutes — Enacted at Same Legislative Session — Construction.— Chapter 156, and chapter 99 of the Session Acts, of the 1920, General Assembly, being enacted at the same legislative session and upon the same subject should be construed together and the provisions of one should not be held inconsistent with the -other, if they can be fairly read otherwise..</p> <p>2. Elections — Primary Elections — Nomination of Circuit Judges and Judges of the Court of Appeals. — The amendment to subsection 6, of section 1550, Ky. Stats., embraced in chapter 156, Session Acts of the 1920, General Assembly applies to candidates in a primary election, who are required by law to file a “notification and declaration,” or .“application and declaration” under said subsection 6, section 1550, supra, and not to candidates, in a primary for circuit judge or judge of -the Court of Appeals, whose candidacy is controlled by the provisions of chapter 99, Session Acts, 1920-, which expressly provides, that the provisions of subsection 6, section 1550, supra, do not apply to candidates for judges of the Court of Appeals and circuit judges.</p> <p>3. Elections — Defeated Candidate for Judge of Circuit Court and Judge of Court of Appeals May Run as Independent Candidate.— A defeated candidate in a primary election for circuit judge or judge of the Court of Appeals, may run as an independent candidate at the regular election for the same office, under .section 1453, Ky. Stats.</p>

<p>1. Street Railroads — Action for Personal Injuries — Instructions.—In an action for damages sustained at a street crossing, where the motorman of the street car saw the horse and wagon approaching the intersection, and the driver of the wagon saw the car approaching it, the case was properly submitted to the jury upon the theory that there could be a recovery for the plaintiff only if the jury should believe that, after the discovery of the plaintiff’s peril, the motorman failed to exercise ordinary care, or to use the means at his command to avert the collision; or if the car was running at an excessive rate of speed and thereby caused the collision.</p> <p>2. Appeal and Error — Argument and Conduct of Counsel. — There being no reference in the bill of exceptions to the .improper conduct of counsel, except a recital in the motion and grounds for a new trial, the question cannot be considered.</p> <p>3. Street Railroads — Crossings—Signals.—The purpose of a signal at a crossing is to notify persons using it of the approach of a car, and where the plaintiff saw the car approaching, no signal was necessary to give him notice of what he already knew.</p> <p>4. Street Railroads — Instructions.—The use of the word “might” in an instruction directing the jury that if they “believed from the evidence that after the motorman discovered, or by the exercise of ordinary care might have diseovéred the plaintiff’s peril,” instead of the word “could” or “would” or “should,” was not misleading.</p>

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

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

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

<p>1. 'Licenses — Subjects of License Tax — Former Opinion. — Where the validity of a vehicle license tax was established by an opinion upon a former appeal, the submission to the jury of the reasonableness of the license was error.</p> <p>2. Licenses — Ordinances.—When plainly intended as a police regulation license ordinances will be upheld even where the amount • realized from the license tax or fee is out of proportion to the cost of issuing the license. Where the ordinance is clearly within the general power of the municipality it is presumed to be reasonable, and the judicial power of the state will not be exercised to declare it void unless by its inherent character it is shown to be unreasonable.</p>

<p>1. Statutes — City Prosecuting Attorney — Adoption of Commission Form of Government. — The office of city prosecuting attorney was not abolished by the act governing cities of tbe third class in those cities which had adopted the commission form of government, though in a subsequent section of the same act, provision is made for the election of mayor and police judge only, since another section of the act pro vides that all laws not inconsistent with the new act are continued in force.</p> <p>2. Statutes — Ambiguity—Construction.—It is proper to look to the effect and consequences of- a statute when its provisions are ambiguous or the legislative intent doubtful, but when the law is clear and explicit and susceptible of but one interpretation its consequence, if evil, can only be avoided by a change in the law itself to be affected by legislative and not judicial action.</p>

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

<p>1. Pleading — Leave of Court to Amend — Notice.—Under the provisions of section 132 of the Civil Code of Practice plaintiff may amend his petition at any time before answer without leave of court, but if the amendment is filed after the beginning of five days immediately preceding the convening of court, defendant should be given, one day’s notice of plaintiff’s intention to file , it, and such notice is required though, the amendment be filed after' the convening of court if the defendant has not answered or taken any other defensive action; and the granting of leave by the court to file the amendment before answer, or other defensive action, can not dispense with the necessity of notice.</p> <p>2. 1 Overruled Cases1. — The cases of Hunt v. Semonin, 79 Ky. 270, and Bryant v. Cooney, 19 Ky. L. R., 423, in so far as they conflict with the above -rule, are overruled.</p>

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

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

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

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

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

<p>1. Criminal Law — Aider and Abettor — Instructions.—An instruction in a homicide case which authorize'S the conviction of one of the defendants as an aider or abbettor, without first requiring the jury to believe beyond a reasonable doubt that the principal had shot and killed decedent willfully, unlawfully, feloniously or with malice aforethought was erroneous.</p> <p>2. Criminal Law — Commission of Felony in Presence of Officer — Instructions. — An instruction which bases the right of an officer of the law in whose presence a felony has been committed to shoot and kill the deceased, to depend wholly upon the self defense of •himself or the other officer present, is erroneous. The law exacts from such officer the duty, where a felony has been committed in his presence, to arrest the accused, and in doing so he is given all the protection afforded hy law to officers in making felony arrests, and he may use such force as may be necessary to overcome such resistance even to the taking of the life of the accused; and it matters not that the officers, or either of them, may not at the time be in danger of losing their lives at the hands of the accused.</p> <p>3. Criminal Law — Evidence.—On the issue as to how many loads there were in a pistol the afternoon before the homicide when the decedent got it from a neighbor’s home, the evidence of such neighbor that it was his custom to keep only five shells, in a sixshooter pistol was incompetent.</p>

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

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

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

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

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

<p>1. Licenses — Sale of Oils. — Ky. Stats., sec. 4224, requiring those selling petroleum or other oils at retail to procure a license for each wagon used in such sales, was not intended to embrace a sale of not less than 500 gallons of oil at a time to a lighting plant, which had contracted for the quantity of fuel oil required to operate its plant, deliverable in the quantities aforesaid.</p> <p>2. Licenses — Sale of Oils — Sale by Retail. — “Retail” means to sell in small quantities, a little at a time, hence a delivery of oil in quantities of not less than 500 gallons at a time to a customer who purchased from a refiner all the fuel oil necessary to operate its plant, was not a sale by retail within the contemplation of Ky. Stats., see. 4224.</p>

<p>1. Statutes — Uncertainty.—Section 1 oí chapter 81 of the 1920 Session Acts of the legislature is not void for uncertainty.</p> <p>2. Indictment and Information — Exception in Statutes. — If an exception is contained In the sentence or paragraph of the statute that creates and describes the offense then it must be negatived in the indictment; but if the exception is not found in the sentence or paragraph that creates and defines the offense but is contained in a .separate section or in a distinct proviso or paragraph it is matter of defense for the accused and it is not necessary that the indictment should chargei that he did not come within the exception.</p> <p>3. Intoxicating Liquors — Indictment and Information. — Under the above rule an indictment charging one with transporting intoxicants in violation of section 1 of chapter 81, 1920 Acts must negative the exceptions contained in the section, and failing so to do is not good on demurrer.</p> <p>4. Criminal Law — Sweating.—Voluntary statements of persons in .custody are. not in violation of section 1649b, Ky. Statutes, known as the anti- sweating act, and may be used against them.</p>

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

<p>1. Public Lands — Patents or Grants — Construction.—Tbe primary purpose in construing patents is to locate them so as to include the same land as the parties intended at the time oí tbe making of tbe survey and tbe issuance of tbe patent, and in doing so many rules are furnished by tbe law to guide tbe court in arriving at such intention; one of them is that where there are omitted calls ’or where the objects called for in tbe patent are not to he found, or where tbe patent, according to tbe courses, will not close, or where other facts develop uncertainty and ambiguity tbe court may resort to tbe plat made by tbe surveyor and filed in tbe land office, which under such circumstances is evidence of a potent character but is not necessarily conclusive. Like other evidence the plat, when the occasion exists to consult it, fills its place, but it rarely has tbe right to demand that all other evidence be wholly disregarded.</p> <p>2. Public Lands — Patents or Grants — Boundaries.—It is competent, <m locating patents, if necessary to close them, to extend a line, and especially so if that be necessary to reach a natural object called for in the patent.</p> <p>3. Public Lands — 'Patents or Grants — Description.—Quantity and acreage stated in a patent may also be considered, but it ordinarily being a matter of description, is perhaps the weakest evidence to be resorted to and will surrender to other controlling facts, unless it manifestly appears that it was the intention of the parties to make the acreage a controlling factor.</p> <p>4. Public Lands — Patents or Grants — Contemporaneous Construction. — It is also competent to introduce a contemporaneous construction of the parties and reputation acquired in the neighborhood and vicinity as to the location of the patent, and, within this rule, it is competent to introduce junior patents which refer to or border upon the senior patent which is the subject matter of construction for the purpose of showing the reputed location of the senior patent.</p> <p>5. Public Lands — Patents and Grants — Calls.—From the facts in this case as appear from the opinion it is held that the court erreji in reversing two of the calls of the patent and in reversing the meridian line of the surveyor for the purpose of obtaining a figure resembling in shape his plat, and when thus located it covered ground entirely different from that shown by the plat; the only error in the patent being the length of its last line to the beginning corner, and the acreage called for therein.</p>

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

<p>1. Criminal Law — Submission to Jury. — It is a well known rule that if there is any evidence conducing to prove the defendant’s guilt of the crime charged, or any degree thereof, a peremptory instruction should be refused and the case allowed to go to the jury.</p> <p>2. Criminal Law — Circumstantial Evidence. — Equally familiar is the rule that a conviction may be had in a criminal case, whether for murder or a lesser crime, upon circumstantial evidence alone.</p> <p>3. Criminal Law — Continuance.—The refusal of a continuance to the defendant in a criminal case on account of the absence of witnesses is not reversible error, where it is apparent from his affidavit therefor that their testimony would be merely cumulative, and it did not appear from the affidavit that their absence was not without his procurement.</p> <p>4. Homicide — When Murder Shown — Instructions.—Where on the trial of one accused of murder the facts and circumstances established by the evidence are .so convincing as to preclude any other theory of the 'homicide than that of murder, the refusal by the trial court of instructions on manslaughter and self defense is not reversible error.</p>

<p>1. Vendor and Purchaser — Deficiency in Quantity of Land. — A vendor wbo specifies in his deed the number of acres conveyed will ordinarily be liable to the vendee for any shortage in acreage which may be discovered, unless the instrument contains the condition “be the same more, or less” or a similar expression in connection with the number of acres -stated to be in the tract, in which event the vendor will not be held to the exact number of acres. A deficiency of less than ten per cent in the number of acres will not be recoverable by the vendee. If, however, the shortage of acreage equal or exceed ten per cent of the total number of acres which the deed purports to convey, the vendee may recover for the entire shortage.</p> <p>2. Vendor and Purchaser — Deficiency in Quantity of Land. — Where the sale of land is by the boundary, in gross and not by the acre, no recovery whatever can be had by the vendee for any supposed shortage.</p>

<p>1. Wills — Mental Capacity. — Evidence that a testator in his will referred to a four thousand dollar life insurance policy when in fact there was no .such policy, but there were two two thousand dollar policies, and that he undertook by will to dispose of life insurance policies belonging to the designated beneficiaries and not to his estate, is not sufficient to authorize the submission to a jury of the question of mental incapacity.</p> <p>2. Wills — Mental Capacity — Evidence.—The opinions of non-expert witnesses, unless they be based upon tangible facts testified to by themselves or others, are insufficient to take to the jury the question of mental incapacity.</p>

<p>Prohibition — -Discretion as to Grant of Writ. — The Court of Appeals will not interfere by writ of prohibition with the judge of an inferior court, when he is proceeding within his jurisdiction and the complaining party has an adequate remedy for any wrong that an erroneous decision may do him.</p>

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

<p>1. Wills — Trusts*—Construction.—Under the terms of a will testator provided that the shares of his estate devised to his daughters should be held in trust for them upon certain conditions and limitations. By a codicil it was provided there should be no trustee of the property devised to an unmarried daughter, but she was empowered to manage the property devised to her for her sole and separate use and as prescribed in the trust clause of the will and was to keep it fully insured at all times against fire, nor was she to sell it without the consent of the executor, Held: that the codicil did not create a fee simple estate in the unmarried daughter, but she held her share of the estate subjct to the trusts and limitations of the original will.</p> <p>2. Wills — Intention of Testator. — In construing a will it is the duty of the court to ascertain the testator’s intention as therein expressed and unless it is contrary to law or opposed to some gen- ■ eral principle of public policy that intention must govern.</p> <p>3. Trusts — Conveyance by Parties and Executors and Administrators. —Where property is left in trust with power to the trustees or the person invested with the management pf the property to sell and convey the same, the parties in interest, the executor and trustee joining in the conveyance, may pass fee simple title to the purchaser, free of any claim, right -or title on the part of the devisees under the will, the proceeds of the sale to be held in accordance with the trust provision of the will.</p>

<p>1. Criminal Law — Penalty for Second Offense. — Tbe increased penalty authorized for a second violation of section 2572c-8, Ky. Stats., vol. 3, applies only to offenses committed after the first conviction thereunder.</p> <p>2. Crifninal Law — Plea of Guilty — Scope.—A plea of guilty confesses the truth of all facts properly set out in the indictment and waives every right to contest the truth thereof during the trial or thereafter }n that case unless, perhaps, upon a showing in a motion for a new trial for duress or other incapacitating circumstances.</p> <p>3. Criminal Law — New Trial. — The affidavit of defendant in support ■of his motion for a new trial that the plea of guilty was entered “through misapprehension and being misinformed and under the wrong belief about the indictment” upon which he was being tried is not a ground for a new trial under section 271 of the Criminal Code which enumerates the several causes for which a new trial may be granted.</p>

<p>1. Criminal Law — Conviction -of Manslaughter Under Indictment for Murder- — Evidence.—A verdict finding defendant guilty of manslaughter under an indictment for murder is not contrary to or unsupported by the evidence simply because defendant, who was the only witness to testify as to what happened at the time and just preceding the killing, by his testimony made out a clear case of self defense, where the evidence for the Commonwealth is inconsistent with and casts much doubt upon the truth of defendant’s testimony.</p> <p>2. Criminal Law — Instructions—Prejudicial Error. — It was prejudicial error not to give a self defense instruction where a reasonable inference from defendant’s evidence was that he believed and had reasonable -grounds to believe at the time of the killing that he or members -of his family were in imminent danger of death or great bodily harm at the hands of deceased whether the danger was real -or only to him apparent.</p> <p>3. Criminal Law — 'Self Defense — Instructions.—An instruction which does not embrace the words “real or to him apparent” or other words of like import in explanation of the danger that will authorize one to act'in defense of himself and family is not sufficient as a self defense instruction.</p> <p>4. Criminal Law — Self Defense — Instructions.—Where from the evidence of defendant the killing resulted from his efforts to prevent a threatened forcible entrance of his home by deceased the jury should have been informed of defendant’s right to protect his home from such an invasion, in connection with his right to defend himself tad family from an impending danger of death or great bodily harm at the hands of deceased, under such circumstances either as a part of the self defense instruction or as a separate instruction, but the instruction given for this purpose and which was copied from one approved in another ease where the facts were essentially different was improper here.</p>

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

<p>1. Appeal and Error — Moot Questions. — This court will not assume jurisdiction to determine moot questions although an important public question may .be incidentally involved.</p> <p>2. Appeal and Error — Moot Questions. — A moot question is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgmnt upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.</p>

<p>1. Divorce — Order for Temporary Alimony — Case Pending. — A case is pending in tbe Court of Appeals for at least thirty days, not including Sundays (section 760 Civil Code of Practice), after the rendition 'Of the opinion, unless by agreement of parties or some order of court the mandate issues sooner than that time; therefore, an order for temporary alimony made in this court, pending the appeal, is' not discharged till the issuing of the mandate pursuant to the requirements of the section of the code referred to.</p> <p>2. Divorce — Custody.—Under the facts of this case, as appears from the opinion and the one referred to therein, the court did not err in allowing the father to take the infant child, which was in the custody of the mother, to his home every Sunday, procuring it from the wife after breakfast and returning it to her before sundown, on the ground that the imperative terms of the order forced the wife to relinquish the possession of the child irrespective of its physical condition or weather conditions, since those matters may be regulated by the court where the case is still pending on the docket.</p> <p>3. Divorce' — Allowance to Attorneys. — Record examined and found that an allowance to the attorney for the wife of $100.00 in payment of services in this court only cannot be disturbed on the ground that it is insufficient.</p>

<p>1. Wills — Creation of Trust — Construction.—While a will in terms places all of the testator’s property in trust for the purpose of continuing his business, if the subsequent provisions show that his primary purpose in creating the trust was to provide support and maintenance for his widow and the children living with her, it will be so interpreted.</p> <p>2. Wills — Intention.—Ambiguous or apparently conflicting provisions in wills will be interpreted in the light of the natural instincts of men, so as to reach the intention of the testator.</p> <p>3. Wills — Construction.—There being in the will no express disposition of the profits arising from the conduct of the business after the testator’s death, but the will showing the primary purpose in creating the trust to be to provide a support and maintenance for his wife and such children as lived with her, and there being a. further disposition of his whole estate at the death or re-marriage of his wife, there was a disposition by him of the excess of the income from the business.</p> <p>4. Wills — Renunciation.—The provision by testator for the support and maintenance of his wife during her life or widowhood out of the proceeds of a trust created by him and making his wife the trustee so that she might secure such support and maintenance, was a substantial provision for the widow by the will and she was placed upon her election within the statutory period to renounce the same, if she sought to claim under the statute.</p> <p>5. Trusts — Continuing Trusts. — The judgment that the trust was at an end because it was no longer profitable, by reason of changed conditions which the testator did not foresee, was proper, so far as it authorized the cessation of the operation of that business; but the corpus of the trust property being largely intact, and the chief reason for the creation of the trust still existing, and the time fixed, by the testator for the cessation of the trust not having arrived, there should be a continued enforcement of it in so far as the changed conditions will permit.</p> <p>6. Wills — Advancements.—The testator not having confined the support and maintenance which he provided for his wife and those children living with her to the income from the trust property, if it should become necessary for that purpose she may encroach upon the corpus of the trust estate, especially in view of the fact that she had made large advancements to her children and grandchildren out of the trust estate.</p>

<p>1. Elections — Primary Elections — Contest—Evidence.—Subsection 28 of section 1550 of the statutes providing for contesting primary elections nowhere fixes the time within which the parties shall, commence or complete the taking of their proof before the convening of the court for trial; but it does provide only that the court or judge hearing the cause may limit the time of each party to five days within which he may produce or introduce his proof at the trial, and to one day each for .the introduction of rebuttal proof, unless the ends of justice demand that such limitations be extended. If the proof may be heard within a less time than that prescribed the court has the power and it will be its duty to confine the parties to a lesser time.</p> <p>2. Elections — Primary Elections — Contest—Corrupt Practice Act.— While it is necessary in election contest proceedings to show affirmatively by the evidence that the party charged with violating the Corrupt Practice Act knew that others corruptly used money in the election in his behalf, yet that fact may be shown by circumstantial evidence of greater convincing force than to create a mere suspicion, and when guilty circumstances are shown of the nature indicated, the court is authorized to find the principal fact the same as in other character of cases in which circumstantial evidence is held sufficient; but in this case there is positive direct evidence of the corrupt practices complained of.</p> <p>3. Elections — Primary Elections — Corrupt Practice Act. — The words “election” and “elected,” as used in the Constitution, do not include primary elections for the nomination of candidates, nor the ■nominations m'ade. at such primaries; hence, it was competent for the legislature to provide, as it did in section 11 of the Corrupt Practice Act, “that the candidate who has received the next highest number of votes and who has not violated the provisions of this act shall be declared nominated;” nor is the quoted provision unconstitutional because not included in the title to the Corrupt Practice Act, as is required by section 51 of the Constitution, since the title in stating the chief purpose of the act says: “An act to promote pure elections, primaries and conventions, and to prevent corrupt practice in the same,” and the conferring by the statute of the nomination on the innocent candidate who has not violated the act is promotive of its general purpose as expressed in the title.</p> <p>4. Elections — Primary Elections — Deprivation of Office. — Section 151 of the Constitution deals only with the right and power of the legislature to deprive one of office after he has been elected at a general election upon any of the- grounds- stated therein or in any statute enacted thereunder, and it has no reference to depriving one- of his nomination as a candidate either at a primry election or otherwise.</p>

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

<p>Contested Election Case.</p> <p>Injunction Case No. 1.</p> <p>Injunction Case No. 2.</p> <p>Appeals from Floyd Circuit Court.</p>

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

<p>.1. Assignments — Warranty of title — Construction.—The assignor of a lease of real estate or an interest therein does not 'hy his mere act of assignment impliedly warrant the title of his lessor or the peaceable and quiet enjoyment of the leased premises by his as*signee; hence, where a lessee agrees only to transfer his leases there is no implied covenant on his part that his lessors possess a perfect title to the leased premises, nor will there be an implied covenant for quiet and peaceable enjoyment of the leased premises by his assignee. But it is competent for such express covenants to be made in the assignment and whether its terms are broad enough to create them is a matter for construction and to be determined from the language of the assignment.</p> <p>2. Contracts — Consisting of More Than One Writing. — While it is competent for a contract to consist of more than one writing, each of them should relate to the same subject matter; hence, a contract for the purchase only of the capital stock of a corporation •does not relate to or form a part of prior negotiations for the purchase of the physical properties of the corporation and such prior negotiations will be treated as abandoned by the contract for the purchase of the stock.</p>

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

<p>1. Executors and Administrators — Allowance for Attorneys’ Pees. — ■ Where the executor in a contest oyer a will claims in his individual capacity a major portion of the estate and the other devisees are forced to and do employ counsel to represent them in the litigation with the executor, the executor is not entitled to have his attorney fees allowed out of the estate, especially that part thereof which was expended (by him in the employment of counsel to represent him in his individual capacity.</p> <p>2. Executors and Administrators — Allowance for Attorneys’ Pees.— Where the evidence in support of a claim of the executor for attorney fees is sufficient to enable the court to determine with reasonable certainty the fair value of the services performed to the executor independent of 'Other services performed by the same counsel to him as an individual, the fee will be fixed by the court although, the witnesses decline to seggregate such services and fix a value thereon.</p>

<p>Intoxicating Liquors — Possession for Sale — Sufficiency of Evidence. — Evidence that when the searching officers entered defendant’s premises, where he kept a soft drink stand and restaurant, they found defendant’s father in possession of a half-filled half pint bottle of intoxicating liquor, which the father attempted ■to pour out, was not sufficient to sustain a conviction for the offense of having intoxicating liquor in one’s possession for the purpose of sale, there being no evidence that the father was the agent or employe of defendant, or that defendant had any interest in the whiskey, but the contrary appearing.</p>

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

<p>1. Covenants — Breach of Warranty. — The basis of an action for a breach of warranty of title is that the warrantee has either been ousted by a paramount or superior title, or that he gave the warrantor notice of the pendency of the action involving the title, in which latter event the warrantor would be bound even though the eviction was not by a paramount title.</p> <p>2. Covenants — Breach of Warranty — Measure of Recovery. — The measure of recovery on a breach of warranty where- there is a total loss of the whole land, the title to which is warranted, is the purchase price at the date of the conveyance with interest from that time; but where only a part of the land warranted is lost the measure of recovery is that proportion of the original purchase price which represents the value of the lost part at the time of the conveyance, with interest from that time.</p> <p>3. Covenants — Breach of Warranty — Attorneys’ Pees — Costs.—In an action for a breach -of warranty of title to land there can be no recovery against the warrantor for the costs, attorneys’ fees and expenses of the warrantee in an action wherein the recovery was had unless and until the warrantor has had notice of the pendency of the action.</p>

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

<p>Elections — Voters Other Than Party — Nomination hy Petition. — An aggregation of voters other than a party, which east two per centum of the total vote at the preceding election, may hy one petition nominate several different persons, as candidates for different offices, provided, that not more than one person is named for the same office, and all the -candidates nominated represent the same party or principle, and in such case, it is the duty of the clerk of the county court to print their names upon the official ballots, in the-same column, and under the common device selected by the petitioners, unless the device has already been selected by some other person, and in such event, under a suitable common device.</p>

<p>1. Mines and Minerals — Lease—Rentals—Tender.—If an oil and gas lease does not provide that rentals accruing upon non-development shall be paid in advance they may be paid or tendered at any time during the rental period for which they are due.</p> <p>2. Mines and Minerals — Lease:—Forfeiture.—The fact the lease term is so short that the customary forfeiture clause could not become operative before the expiration of the term, is not sufficient reason for giving the customary provisions o£ such a lease an unusual ■ construction, where the insertion of such a clause under the circumstances is more reasonably attributable to inadvertence than to a design to give to it and other clauses in common use in such leases an unusual meaning that could have been expressed otherwise more easily and simply.</p> <p>3. Landlord and Tenant — Lack of Mutuality. — A lease is not void for lack of mutuality as to an extension period for which the lessee is irrevocably bound to pay a stipulated rental.</p>

<p>1. Landlord and Tenant — Covenant to Renew or Extend Lease.— While this court recognizes a technical distinction between a covenant to renew and a covenant to extend a lease, but whether a covenant is to renew or to extend depends upon the intention of the parties as shown by the entire lease and the interpretation thereof before a controversy arose, and the fact that it is called in the lease a privilege to. renew is nomconclusive.</p> <p>2. Landlord and Tenant — Expiration of Tenancy. — Sections 2295 and 2296 of the statutes relate especially to tenancies which by their terms expire on a day certain or which may expire on a certain day for failure to renew or extend where such right is given, and do not apply when the right exists and the privilege has been legally exercised.</p> <p>3. Landlord and Tenant — Renewal of Lease. — In a lease for five years, beginning February 1, 1911, it was provided that “An option is hereby given to the second party (lessee) at the expiration of this lease to renew for a similar period of five years upon the same terms,” except the amount of rent was increased, and after the expiration of the first period the occupancy was continued by the lessee for four years, he paying the increased rent which was accepted by the lessor without objection; Held, that the conduct of the parties was such as to show that it was their intention that the word “renew” in the original lease should be given the same meaning and have the same effect as the word “extend,” there being nothing in the lease to the contrary, and the parties having thus construed their lease it will be given that effect by the court, and the unmolested occupancy, acquiesced in by the lessor, will be treated as a valid extension of the term for the second period provided for.</p>

<p>1. Easements — Use of Water from Cistern. — The provision in a deed giving the grantee the right to use water from a windmill cistern, as long as there is water in said cistern, for use of a water system in grantee’s house, gives to the grantee no right or easement other than the right to use the water in said cistern.</p> <p>2. Easements^-Use of Water from Cistern. — Where the right is granted to use water from a windmill cistern, the grantor is without authority to obstruct the grantee in the enjoyment of the right thus created, but he who has granted an easement upon his own land is not bound to do more than to abstain from acts inconsistent with its proper enjoyment, in the absence of an expressed or implied covenant to the contrary.</p> <p>3. Easements — Use of Water . from Cistern. — The mere granting of the right to the use of water from one’s cistern does not impose upon the grantor the duty to repair or replace a windmill through the means of which water was forced into the grantee’s premises.</p> <p>4. Easements — Use of Water from Cistern — Pleading.—A petition alleging that defendants were threatening to destroy a windmill cistern and to destroy plaintiff’s easement therein by denying him the use, benefit and protection of same is good against demurrer, where it is shown that plaintiff w-as: granted the right to use the cistern and the water therein.</p>

<p>1. Bail — After Commitment. — Under Crim. Code, sec. 68, defendant, after commitment, and before tbe commencement of tbe next term of the court having jurisdiction to try the offense, may be admitted to bail, in the sum fixed by. the committing magistrate, or by the county judge, but, after the commencement of the term of the court, can only be admitted to bail by the court or the judge thereof.</p> <p>2. Bail — Clerk Without Authority to Take Bond. — Where, before the commencement of the next term of the circuit court one is held over but there is no order of the committing magistrate or county judge fixing accused’s bond, the clerk of the circuit court is without authority to take such bond.</p> <p>3. Bail — When Bond is Nullity. — Bail bond executed before an officer not authorized by law to take it is a nullity and is not obligatory on the bail.</p>

<p>1. Elections — Absent Voters Law — Constitutional and Statutory Provisions. — Tbe act of tbe legislature of 1918, commonly known as the “Absent Voters Law,” is unconstitutional and void because repugnant to that part of section 147 of tbe Constitution of Kentucky which reads: “All elections by the people shall be by secret, official ballot, furnished by public authority to the voters •at the polls, and marked by each voter in private at the polls and then and there deposited.”</p> <p>2. Elections — Presence of Voter at Polls. — One cannot vote in an election unless he be present at the polls and there receive, mark and deposit his ballot.</p> <p>3. Elections — Registration of Absent Voters. — As there is no constitutional provision forbidding the registration of absent voters in the manner provided in the act under consideration, that part of it relating to the registration of absent voters is not unconstitutional, and one may register by mail by complying with the act of 1918. Sec. 1520a-2, Ky. Statutes, 1918, third volume.</p>

<p>1. Executors and Administrators — Services Rendered Decedent— Contracts. — A contract between, brother and sister, whereby the latter is to be paid by ithe former for services rendered by her while an inmate of his home as housekeeper and in nursing and caring for him in illness, will not be implied from the mere fact that the services were rendered, but to authorize a recovery for the services an express contract must be proved. In the absence of proof of such a contract, the relationship of the parties would be sufficient to raise the presumption that they lived together as a matter of mutual convenience, or that the services were prompted by sisterly affection and therefore gratuitously rendered.</p> <p>2. Executors and Administrators — Services Rendered Decedent— Contracts. — Where, as in this action in equity brought by the appellant against the appellees, heirs at law of her deceased brother, who, without permitting any administration thereof, took and divided among themselves the latter’s estate, it was made to appear from a preponderance of the evidence that a contract was made with her by the decedent whereby the latter, then a widower and in poor health, agreed in consideration of her undertaking to enter his service as housekeeper and nurse and care for him, that he would board her and infant son and pay her $25.00 per month; and that in pursuance of such contract she did enter his employ, remain with and faithfully perform for him the services required by its terms until his death, it was error for the circuit court to dismiss her petition and refuse her a recovery against the heirs at law of the decedent to the extent and value of the estate inherited by them from him, the amount due her at the contract price for the services rendered the decedent -by her.</p> <p>3. Appeal and Error — Finding of Chancellor. — While in an action in equity the chancellor’s judgment is entitled to some weight, the Court of Appeals will weigh and judge of the sufficiency of the evidence for itself; and where it is found to preponderate for one side or the other in such a way as .to convince it that'the chancellor erred, his judgment will he reversed.</p>

<p>1. Wills — Construction.—A will which devises a portion of the testatrix’s estate to a child with the proviso, “If my said s-on shall ■die unmarried and without lawful issue living at his death, then all of the property and estate he takes under this will shall go in equal portions to my other children,” vests in the devisee an estate absolute if he be married at his death, though he ¡have no lawful issue living at his death.</p> <p>2. Wills — Devise Over — Conditions.—Where a devise over is to take effect only upon the failure of the devisee to perform two named conditions the performance of one of such conditions will prevent ■ the taking effect of the devise over.</p>

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

<p>1. Pleading — Special Demurrer. — A special demurrer is limited by section 92 oí the Civil Code to objections which appear upon the face of the pleading to which it is directed; and it cannot enlarge the allegations - of such pleading by reciting extraneous facts; hence, a special demurrer is not a “proper pleading,” as that term is employed in section 118 of the Code for making objections covered by section 92, the existence of which is not shown by the pleadings of an adversary.</p> <p>2. Appearance — Proceedings Constituting. — The filing of an answer or other proper pleading to the merits enters the appearance of the defendants and is made by section 118 a waiver of the objections covered by section 92, except as to jurisdiction of the subject matter of. the controversy, unless the extraneous facts necessary to raise such objections are pleaded in the answer or other proper pleading filed.</p> <p>'3. Basements — Location of Passway. — An application for the establishment of a private passway over the lands of another may designate a particular route desired and in such a case it is not prejudicial error to confine the commissioners appointed to view and report upon the proposed passway to the particular route proposed since the resistants by exception to the report may show that the proposed route is not the most practical and feasible one for such passway over their lands.</p> <p>4. Easements — Action by Life Tenant to Establish Passway. — A life ■tenant, who does not reside upon the land, in conjunction with the remaindermen, may maintain an action to establish' a private pasway over the land of other persons to enable them or their ■tenants residing upon the land to attend elections, church, etc., as provided by law.</p> <p>5, Damages — Evidence.—Evidence held to sustain verdict on amount of damages.</p>

<p>1. Gifts — Inter Vivos. — To make valid a gift inter vivos there must be an intention to transfer title to the property as well as a delivery by the donor ’and an acceptance -by the donee. Mere intention to give without delivery is unavailing and delivery is insufficient unless made with an intention to give.</p> <p>2. Gifts — Inter Vivos. — To establish a gift inter vivos there must he a preponderance of clear, explicit and convincing evidence in support of every element needed to constitute a valid gift, and this rule is exceptionally applicable where the gift is not asserted until after the donor’s death and where a confidential relationship existed between the parties.</p> <p>3. Gifts — Inter Vivos. — The delivery may be actual, constructive or symbolical, but the fact the private secretary of the owner of a large sanitarium carried the keys to a room which donor continued to use as his bed room, and to a room in which groceries were kept for use in the sanitarium, and to her own bedroom is of but little probative Value, and even when considered in connection with statements of the owner that he gave or had given the contents of these rooms to her is insufficient to prove a delivery that will sustain a gift inter vivos.</p> <p>4. Gifts — Question for Jury. — Proof as to gift of the contents of the parlor and an automobile held to present a question of fact for decision by a jury.</p>

<p>1. Deeds — Validity—Burden of Proof. — The law looks with, suspicion upon the transfer of property by persons mentally or physically infirm to close relatives or those sustaining a confidential relation toward the grantor or transferor, and in such cases the burden is upon the transferee or vendee to show by clear and convincing evidence that the contract was freely and voluntarily entered into and devoid of inequitable incidents.</p> <p>2. Deeds — Cancellation.—The grantor was eighty years of age, was very feeble and had been bedridden for more than twelve weeks. She was unable to attend to necessary calls and had to be waited on and taken care of in the-same manner as an infant. Her son, the grantee’s father, h-ad considerable influence over her and procured the clerk to attend to and prepare the deed and he himself suggested how it should be written, and the clerk delivered it to him without its ever being in possession -of the grantor after the latter, with the assistance of others, went through the form of touching the pen when her mark, in lieu of her signature, was attached thereto; Held, that this evidence, together with other facts and circumstances appearing in the record, fully justified the cancellation of the deed.</p>

<p>Partition — Action for Partition. — Under tbe provisions of subsection 3 of section 490 of tbe Civil Code, which is an amendment to tbat section enacted in 1916, land may be sold for purposes of division wbere there is a life interest in only an undivided portion of it, and this may be done when one of the joint owners owns absolutely the other portion as well as the life interest and a joint interest in the remainder of that portion covered by the life interest, it not being necessary under the amendment, that all the joint owners should have either the actual or constructive possession of the property.</p>

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

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

<p>1. Mines and Minerals — Lease—Consideration.—The real consideration moving a lessor in the execution oí- an oil and gas lease is ■the expectation upon his part that the grantee will, within-a reasonable time, proceed with the development of his property to the end that he may ■reap pecuniary benefit if oil or gas should be , produced from his property, and this is true whether it be expressed in the instrument or necessarily implied from the facts.</p> <p>2. Mines and Minerals — Lease—Operation.—It is the duty of such lessee, when demand is made by the lessor for development, to, within a reasonable time thereafter, begin the operation, upon pain .of forfeiture.</p> <p>3. Mines and Minerals — Lease—Operation.—The drilling by lessee within a prescribed time of a well within a certain territory specified in the lease in accordance with his undertaking, but not on the leased lands, is not such compliance by the lessee as relieves him from the duty under the law to drill within a reasonable time on the leased land'after notice from the lessor.</p> <p>4.' Mines and Minerals — Lease—Oils—Contracts.—The provisions of ■ the act of March 18, 1920, validating by its terms all existing contracts and leases for oil and gas rights, have no application where the parties have theretofore asserted 'their rights under existing law in the courts of this state, and procured a judgment of cancellation,</p>

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

<p>1. Death — -Presumptions.—One who resides in this state and departs therefrom and does not return for seven successive years, and proof is not made, that -he was alive within that time, is presumed to be dead, but, there is no presumption created by section 1639, Ky. Stats., as to what particular time, within that period, that he died.</p> <p>2. Death — Presumption from Absence — Burden.—If the time of one’s death, who is presumed to be dead on account of seven successive years’ absence, becomes material, the burden rests upon the one asserting that he died, at a particular time within that period, to show it, by evidence.</p> <p>3. Death — Presumptions from Absence.- — When one was alive when last seen, he will be presumed to continue to live until evidence •of his death is offered, or until the presumption of the continuance of life is overthrown by the presumption of his death from seven years’ absence under the statute.</p> <p>4. Death — Presumptions—Evidence.—The presumption of continuance of life may be rebutted -by evidence, either direct or circumstantial, and if circumstances are relied upon to prove one’s ■death, at a particular time, they must needs be of such character as to 'induce the belief that it was more probable that he died, than that he survived.</p> <p>5. Death — -Presumptions from Absence. — The presumption of death arising from seven successive years’ absence from the state, without being known to be alive, within that period, is not conclusive, but may be rebutted by evidence.</p>

<p>1. Negligence — Concurring Negligence. — -Where tbe negligence oí two persons is tbe proximate cause of an- injury, each of them is liable for tbe damages.</p> <p>2. Municipal Corporations — Streets.—All tbe streets of a municipality are presumed to be public streets, wbicb it is tbe duty of a municipality to maintain in a reasonably safe condition for public travel, and if it is a fact that a street, whereon an injury occurred, was not a street for tbe condition of wbicb tbe municipality is liable, it is tbe duty of the municipality to show it by answer.</p>

<p>. 1. Lost Instruments — Establishment—Evidence—Sufficiency.—Evidence in an action for the restoration of a lost deed held sufficient to show its execution and former existence.</p> <p>2. Pleading — Allegations as to Deed — Demurrer—Motion to Make More Specific. — A failure to state the exact time, even when it is material, will not always be a ground of demurrer, if the facts alleged show that the cause of action had accrued before- the bringing of the suit. Such a defect should generally be reached by a rule upon the party to make his allegation as to time more definite and certain.</p> <p>3. Lost Instruments — Date and Time -of Execution — Pleading.—Sufficiency. — -An allegation in a petition for the restoration of a lost deed, that the deed was executed about fifteen years before the filing of the petition, was sufficient as to time, in the absence of a motion to make more .specific, since, if -the other allegations of the petition w-ere true, plaintiffs were entitled to recover, regardless of the date of the deed or the time of its execution.</p> <p>4. Lost Instruments — Pleading—Consideration—Sufficiency of Petition Failing to State- Amount of Consideration. — Where the petition in an action for the restoration of a lost deed stated that the entire purchase money had been paid, the amount of the consideration was not material, and the petition was not bad on demurrer because the amount was not stated.</p>

<p>Corporations — Real Estate — Right to Hold — Constitution.—Section 192 oí the Constitution, providing that a corporation shg,ll not, under penalty of escheat, hold real estate except such as may be proper and necessary for carrying on its business for more than five years, does not apply to a corporation organized for the purpose, and engaged in the business of buying, selling, owning, holding and dealing in real estate.</p>

<p>1. Bills and Notes — Action Upon Lost Note — Non Est Factum. — On the trial of an action upon _ a lost note brought by the payee’s administrator against the payor’s administrator and to which the answer of the latter interposed the plea of non est factum, it was competent for each of two heirs at law and distributees of the estate of the deceased payee to merely testify that he saw the note in question in the safe- of the latter three or four years before the trial. Such evidence did not come within the inhibitions of sec. 606, subsec. 7, Civil Code, as it involved “no verbal statement of any transaction with, or any act done, or omitted to be done” by either decedent.</p> <p>2. Bills and Notes — Limitation of Actions — Action Upon Lost Note. • — Evidence upon which the trial court in this action adjudged the plaintiff administrator entitled to recover of the defendant administrator the amount of the lost note in question, and, also, that of a .second note to which was pleaded the statute of limitations, examined, and held sufficient, as a whole, to support the judgment.</p> <p>3. Appeal and Error — Finding of Chancellor. — Where, on the trial of an action at law, a jury is waived by the parties and the issues of law and fact are tried and determined by the court, the latter’s findings of fact will, on appeal, be given by the Court of Appeals the same weight and effect which are required to he given the verdict of a properly instructed jury.</p>

<p>1. Master and Servant — Award by Workmen’s Compensation Board —Evidence.—An award of the board of workmen’s compensation, if supported by any evidence, although the preponderance thereof appear to be to the contrary, will not be disturbed by a court on review.</p> <p>2. Master and Servant — Finding of Fact by Workmen’s Compensation Board. — It is the duty of the board of workmen’s compensation to make a finding of fact, and if this finding of fact be supported by the evidence, or any part of it, it is conclusive upon the courts.</p> <p>3. Master and Servant — Award by Workmen’s Compensation Board —Evidence.—Only in cases where there is no controversy about the facts or where the award is unsupported toy any evidence is the award subject to review by court, there being only a question of law presented.</p>

<p>Petition for Writ of Mandamus.</p>

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

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

<p>Indictment and Information — Exceptions and Provisos. — If an exception is contained in the sentence or paragraph of the statute that creates and describes the offense, then it must be negatived in the indictment, but if the exception is not found in the sentence or paragraph that creates and defines the offense, but is contained in a separate section or in a distinct proviso or paragraph, it is matter of defense for the accused and it is not necessary that the indictment should charge that -he did not come within the exceptions.</p>

<p>1. Deeds — Reversions.—A grantor cannot defeat the title to land of purchaser for value from his grantee under an agreement of reversion not expressed in his deed and of which .the purchaser had no notice.</p> <p>2. Deeds — Religious Societies. — Nor can he, after the land has been sold and conveyed to an innocent purchaser without restriction or limitation by his grantee, recover of the latter, an incorporated church, the value of the land, upon proof merely that one of the trustees, without the knowledge or consent of the other trustees, to induce him to make the deed verbally, assured him that the property would he devoted exclusively to certain religious purposes.</p>

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

<p>1. Eminent Domain — In Furtherance of Public Purpose — Delegation of Authority. — The right of eminent domain is inherent in the sovereignty, but it may be exercised only in furtherance of a public purpose and the right may be delegated by legislative enactment to a governmental agency or other corporation to be exercised by them only for such purposes, and only when the delegating statute clearly confers the power, since it will not be inferred by implication.</p> <p>2. Eminent Domain — Schools and School Districts. — Boards of education of cities of the fourth class in this Commonwealth were given the power to condemn land “necessary to the proper accomplishment of the purpose for which said board is created” by section 3 of chapter 14, Acts of 1920, and the statute does not limit the board, either as to the character or quantity of real estate to be condemned for the purpose indicated, except they will not be allowed to condemn more than is reasonably necessary for the purpose; and the judgment in this case authorizing such board to condemn 12.9 acres, including a residence, will not be reversed on appeal, either because of the quantity condemned or because a residence is located thereon, since the evidence shows the necessity for the amount and there is nothing in the statute forbidding the condemning of a residence.</p> <p>3. Eminent Domain — Direct Damages — Instructions.—The practice in condemnation proceedings by such boards is governed by the same rule prevails in condemnation of rights of way by railroad companies and the same measure of 'damages prevails in both cases. Therefore, an instruction which, limits the amount of the direct ■damages .to the difference between the actual value of the entire tract immediately before, and the actual value of the remaining portion immediately after, the taking of the amount condemned, was proper, since that is the prevailing measure of direct damages in railroad condemnation proceedings.</p> <p>4. Appeal and Error — Setting Aside Verdict — New Trial. — A verdict of a properly instructed jury will "not be set aside as flagrantly against the evidence unless it clearly appears to have been rendered under th“e influence of passion or prejudice, or is so contrary to the weight of the evidence as to shock the conscience of the court. Within this rule it is not sufficient to authorize a new trial that the verdict appears to' be against the preponderance of the testimony, and in determining the weight to be given testimony in such cases courts should not consider alone the number of the witnesses testifying upon the; issue, but should view their testimony in the light of reason, probability and human experience.</p>

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

<p>1. Counties — Public Improvements — Construction oí Hoads — Bonds. —An election, at which a bond issue of $250,000.00 in amount by the fiscal court of Montgomery county for the construction of public roads therein was approved by more than the required majority of votes, was not invalidated nor the right of the fiscal court to issue and sell the bonds obstructed by a pre-election order of that court providing that the proceeds thereof should not be expended, except upon such roads of the county as were or might be constructed or reconstructed by state or federal governmental aid, or private aid, 25% of the total net cost of such construction or reconstruction to be paid by the county and 75% thereof by the •state or federal government, private person or persons.</p> <p>2. Counties — Construction of Roads — Bonds.—-Although such order is to -be regarded as a contract between the fiscal court and voters of the county by which both are equally bound, in the absence of a charge and showing of bad faith or intended present or future misapplication by the fiscal court of the proceeds arising from the sale of the bonds, it will not be presumed that they will not be expended as reguired by the pre-election order of that court.</p> <p>3. Counties — Construction of Roads — Bonds.—At is appears from the pre-election order that certain roads of the county named therein already had been assured both state and federal aid, and one of them selected for early construction with such aid, the circuit court properly refused the plaintiff, a taxpayer, an injunction restraining the issuance or sale by .the fiscal court of $35,000.00 worth of the county’s bonds admittedly required to pay its 25% •of the total net cost of such selected roads’ construction.</p> <p>4. Counties — Construction of Roads — Withdrawal of Aid — Bonds.— Whether, in the event of the withdrawal of state, federal- or private aid, the fiscal court would have the power to expend the proceeds of the bonds in road construction under some other plan is a question not now presented for decision. That question can arise only in the event of an attempt by the fiscal court, following a future sale or threatened sale of some part of the bonds, to apply the proceeds in contravention of the provisions of the pre-election order.</p>

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

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

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

<p>1. Municipal Corporations — Use of Strip of Land as Street. — A strip of land acquired by a county from a life tenant and one of several heirs, and which had been used continuously for a period of twenty odd years as a public road, and later as a street of the city, and where the remaining heirs have been compensated for their interest in said property and are not complaining of a judgment in their favor, a grantee from all the heirs who took the property with full knowledge of such public use is without remedy to compel the city to cease using it as a public street, nor is said grantee entitled to compensation for its use, especially so where the present owner, a land company, has subdivided the property and on a plat thereof refers to and treats ■said street as one of the public ways of a subdivision of said city.</p> <p>2. Municipal Corporations — 'Sewers—Notice.—A city of the sixth class, duly and properly advertised for bids to be received for the installation of a sewer and the paving with brick of one of its streets, bids to be received on or before a specified date. No bids were received on the day mentioned and by order of the town trustees time for receiving bids was extended ten days. There was no advertisement of the extension, nor any publicity thereof given to contemplated bidders, other than through the means of telegrams and letters; Held, the latter did not constitute a sufficient compliance with the statute or ordinance as to advertising, and that the advertisement for bids receivable on the first mentioned day cannot be construed as a notice to prospective bidders that bids would be received up to and including the extended date.</p>

<p>Vendor and Purchaser — Deficiency in Quantity of Land — Contract of Sale. — ■'While the quantity of land agreed to be sold.constitutes a part of its description, yet the description is a part of the contract, and in actions to recover for an excess or a deficit in the quantity of land, the quantity should be stated in some writing fulfilling the requirements of the statute of frauds, or if the facts are sufficient, the contract should be reformed so as to include the quantity agreed to be conveyed, and unless the contract as executed states the quantity, or unless it can be reformed so as to do so, no recovery can be.had on only oral proof or representations as to the quantity.</p>

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

<p>Bastards — Bastardy Proceeding — Verdict—Sufficiency of Evidence. ■ — Where, in a bastardy proceeding, the prosecuting witness testified that she had intercourse with the defendant about on'e hundred and ninety days before the birth of the child but admitted that she had intercourse with another man about two hundred and ■thirty days before the child was born and that her menstrual period never occurred thereafter though one was due before she had intercourse with the defendant, a verdict that the defendant was the father of the child is flagrantly against the evidence.</p>

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

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

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

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

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

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

<p>Burglary — (Carrying Stolen Property Into Another County — Venue. —The crime of feloniuosly breaking an outhouse, belonging to and used with a dwelling house, and feloniously taking property of value therefrom, denounced by section 1162, Kentucky Statutes, is a single offense, the jurisdiction to punish which is in the county where the crime is committed, and if the culprit carries property into another county, and is there arrested for larceny for so doing, it does not oust the jurisdiction of the courts of the county where the original offense was committed, to try him for the crime of feloniously breaking the house and feloniously taking articles therefrom.</p>

<p>1. Mortgages — When Deed Will Operate as Mortgage. — Whatever the nature of a conveyance may purport to be on its face, if, in fact, it is only a security for money, it will operate as a mortgage and not a conditional sale.</p> <p>2. Mortgages — When deed Will Operate as Mortgage. — 'Although the relationship of debtor and creditor does not exist between the grantor and the nominal grantees in- a conveyance, if the instrument shows on its face a third party is the real grantee therein, and that it was made for his benefit, and the nominal grantees paid no part of the consideration, the • instrument will operate as a mortgage, the nominal grantees being treated as trustees.</p> <p>3. Mortgages — When Deed Will Operate as Mortgage. — Where upon ■its face an instrument discloses that the nominal grantees therein paid no part of the consideration, that the whole consideration was advanced by one named in but not designated as a party to the instrument, and that the property of the grantor was put in lien to secure the payment of that loan, and that the notes executed for the loan were executed by the grantors, a purchaser must take notice that the transaction is one only for the security of money and is not a sale of property, and therefore operates as a mortgage; and being required to take such notice, cannot be a bona fide purchaser for value.</p>

<p>1. Drains — Assessments—Interest.—'Drainage assessments bear interest both under the act of 1912 and the act of March 28, 1918.</p> <p>2. Drains — Interest on Assessments and Bonds. — Effect of Long Delay in Beginning Work. — Where a contract for the sale of bonds has been made but never carried into effect, the statute does not contemplate that, after there has been a delay of more than two years in beginning the work, the bonds should be antedated and bear interest during the delay, and the same is true of the assessments.</p> <p>3. Drains — Constitutional Law — Legislative Power — Curative Statute. — The legislature may cure or validate by subsequent legislation any act which it had the power to authorize in the first instance, provided such legislation does not impair the obligation of the contract or interfere with vested rights.</p> <p>4. Drains — Contract for Sale of Bonds — Legislative Power — Effect of Validating Statute. — The statute in force when drainage bonds were sold provided that they should not be sold at less than par. The sale was made at less than par. Before the sale was consummated the legislature repealed the statute and enacted in lieu thereof- another statute- from which the provision that bonds should not be sold at less than par was omitted, and further providing that all contracts theretofore made should be validated; Held, that the contract of sale was validated, inasmuch as the 'Statute ¡simply gave effect to the contract which the parties- actually made, and therefore did not impair the obligation of the contrast ■or interfere with vested rights.</p>

<p>1. Exceptions, Bill of — Extension of Time to Pile. — Where the- bill of exceptions is- not tendered within the time granted for the purpose, the court is without power thereafter to file same or grant an extension of time for the purpose-; and the same will be stricken from the record in this court upon proper motion.</p> <p>2. Exceptions, Bill of — Pleading—Verdict.—With the bill of exceptions stricken the only question remaining is whether or not the pleadings support the verdict.</p>

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

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

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

<p>1. Street Railroads — Actions for Injuries. — In an action for damages against a street car company, caused by tbe collision of a street car with the motor car of the fire department, there being evidence from which the jury might have believed that the sole cause of the accident was the negligence of those in charge of the motor car of the fire department there was evidence to sustain a verdict for the defendant.</p> <p>2. Street Railroads — Actions for Injuries. — In such an action an instruction that if the jury should believe the operator of the fire engine failed to exercise ordinary care in its operation and that such failure was the sole cause of the collision they should find for the defendant did not mislead the jury even if it was erroneous; but being in effect only wbat the court had previously said in another instruction that if there had been no negligence by those operating the street car there should be a verdict for the defendant.</p> <p>3. New Trial — Newly Discovered Evidence. — On a motion for a new trial upon the ground of newly discovered evidence, even if the evidence was material and would have authorized the court, upon a proper showing, to grant a new trial, there being no showing of diligence the court properly refused it.</p>

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

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

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

<p>1. Action — Joinder—'Libel and Slander — Trespass.—Civil Code, section 83, declares what causes of action may be joined, and by the provisions of subsection 5 of that section all causes of action arising from injuries to 'character constitute a distinct class; therefore, neither libel nor slander can be joined with trespass to the •person or property, real or personal, the former being for injuries to the character, the latter for injuries to the property of the plaintiff.</p> <p>2. Action — Separate Action for Libel and Slander — Trespass.-—Where separate actions were brought by a plaintiff, one for a libel affecting her character, contained in cards printed by the defendant, and the other for a trespass to her real property committed'by the latter in wrongfully invading her home and premises in her absence and defacing both the dwelling house and premises by post- . ing on them the libelous cards in conspicuous places, a verdict and judgment for nominal damages recovered by the plaintiff in the action of trespass, which was first tried, did not legally bar the right of the plaintiff to recover damages in ''the action for libel; and the action of the circuit court in holding to the contrary and overruling the plaintiff’s demurrer to such a plea in bar contained in the defendant’s answer to the petition in the action for libel, and dismissing the petition, was reversible error.</p>

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

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