Volume 193 — Kentucky Reports

<p>1. Criminal Law — Evidence.—Where the testimony in a criminal prosecution is contradictory, it cannot be said that the verdict finding the defendant guilty is flagrantly against the evidence where the preponderance of testimony supports the verdict.</p> <p>2. Rape — Evidence.-—It was not error to allow the prosecutrix upon the trial of the defendant for detaining a woman against her will to state that when she saw him that day “he dropped his head and went on down the street” when it was shown that he was within eight or ten feet of her and saw her and her uncle standing there together; but if error, it can not be said to have substantially prejudiced the defendant’s rights so as to render his trial unfair.</p> <p>3. Criminal Law — Impeachment of Witness. — -It is improper for counsel to ask a witness if he does not stand charged with a particular offense, since that is not the proper method to discredit or impeach the witness, but the effect of the impropriety was, no doubt, removed when the court sustained an. objection to the question and -admonished the attorney not to repeat it, which was obeyed by him; particularly so when from the whole record it does not appear that it substantially prejudiced defendant’s rights.</p> <p>4. Criminal Law — New Trial.- — Courts are reluctant to grant a new trial for newly discovered evidence- and will not do so, unless it be of such a preponderating nature as to render it reasonably probable, in -the light of the entire record, that a different verdict would be returned if it bad been introduced and considered 'by tbe jury.</p>

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

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

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

<p>1. Wills — Devise in Fee' — Limitation Over. — A devise to one, generally or indefinitely, with, an unlimited power of disposition, is a devise in fee, and a limitation over of whatever remains undisposed of, at the death of the devisee, in fee, is void.</p> <p>2. Wills — Devise for Life — Limitation Over. — A devise to one for life, with a power of disposition, a limitation over of what remained at the death of the life tenant, is valid.</p> <p>3. Wills — Verbal Declarations of Testator. — Verbal declarations of a testator, as to how he intended to dispose of his property, before the making of a will, or as to what disposition he had made of it by will, after the making of a will, are not competent to be considered, in the interpretation of the written will, where the genuineness of the will is not in question.</p> <p>4. Wills — Construction.—All of the clauses of a will should be construed in harmony with the intent of the testator, unless to do so, would do violence to the provisions construed according to the accepted meaning of the language used.</p> <p>5. Wills — Construction—Ambiguity.—Wlhere the language of a will does not create any ambiguity, it should be construed according to the express meaning and the literal import of its language.</p>

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

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

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

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

<p>1. Beneficial Associations — Contravening Statute. — A fraternal beneficiary society issuing certificates of life insurance can not make a (bylaw enforcibl-e in our courts which contravenes a public statute even though such bylaw be not immoral or criminal.</p> <p>2. Beneficial Associations — Death—Presumption as to Death From Absence. — A bylaw of a fraternal society which provides that no lapse of time or absence or disappearance on the part of any member heretofore or hereafter admitted into the society without actual proof of death of such member, while in good standing in the society, shall entitle his beneficiary to recover the amount of his benefit certificate, is violative of section 1639, Ky. Statutes, which provides: “If any person who shall have resided in this state go from and do not return to this state for seven successive years, he shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive at that time.”</p> <p>3. Contracts — To Forego Prosecution. — One is not bound by a contract whereby he agrees to forego the prosecution of a cause of action which may accrue to him in the future.</p> <p>4. Insurance — Death—Manner of 'Proving. — The statute, sec. 1639, is a part of the public policy of the state and a bylaw of a society which undertakes to reject the fact so proven is contrary to public policy and unenforcible.</p>

<p>1. Master and Servant — Negligence—Failure to Exercise Judgment. —The failure to exercise the best judgment in an emergency is not evidence of negligence, though the error be fraught with serious results, since one acting in a sudden crisis is not required to exercise that deliberate judgment which time for reflection affords.</p> <p>2. Master and Servant — Negligence.—An engineer of a steam engine upon hearing a cry or scream, but not knowing its cause, nor from whence it comes, is not compelled immediately to stop his engine, and where he (the engineer)' left his seat to ascertain the cause of such cry and discovered that his fireman had been caught between the cab and tender, while the engine was passing from a siding on to the main track and he attempted to extricate the fireman from this perilous position, failing in which he returned immediately to his seat, stopped the train and caused it to back, thereby releasing the fireman: Held, that in so doing he was not negligent in failing to stop the train as soon as he heard the cry.</p> <p>3. Master and Servant — Conduct of Engineer. — A railroad company cannot be held liable because its engineer failed to choose or adopt a different course from the one which he did adopt, provided he did not fail to exercise ordinary care in so doing, and acted in good faith and in accordance with his best judgment under the circumstances.</p> <p>4. Master and Servant — Persons Acting in Emergency. — Persons who have to act in a sudden emergency -are not to be judged in the light of later events, but are to be judged under the circumstances by the standard of what a prudent person would have been likely to do under the same circumstances.</p> <p>5. Appeal and Error — Former Appeal. — Where upon a former appeal a reversal was ordered because of an erroneous instruction and the opinion expressly stated that all questions not decided were left open, this court, upon a second appeal, is not precluded by •the first opinion from ordering a directed verdict Where, the entire record considered, it is manifest that such should be the order.</p>

<p>1. Mandamus — Mandamus Proceedings — Motion for Writ Notice.— As the notice of a motion for a mandamus takes the place of an ordinary summons, no notice is necessary when the defendant voluntarily appears and demurs to the petition.</p> <p>:2. Schools and School Districts — Fiscal Court Must Levy Taxes to Meet Demands of Board of Education. — Under Acts 1920, c. 36, when the county board of education submits to the fiscal court the budget showing its needs for the school year, the fiscal court must make such levy as will raise the amount required by the budget, and in doing this, the court has no discretion other than the power to limit the rate of taxation for school purposes to such sum as will raise the total amount demanded, by the budget.</p> <p>3. Schools and School Districts — Fiseal Court May Not Levy Taxes Insufficient to Raise Amount Needed. — Where it is apparent from the budget, and from the amount of taxable property in the county, that the forty cent rate levied by the fiscal court for school purposes was wholly insufficient to meet the demands of the board of education, and that the amount demanded could not be raised unless a tax of fifty cents was levied, the fiscal court was without power to fix the levy at a lower rate, and a writ of mandamus requiring them to fix the rate at fifty cents was proper.</p> <p>4. Schools and School Districts — Right of Board of Education to Include Outstanding Indebtedness in Budget and to Require Fiscal Courts to Levy Taxes Therefor. — A county board of education may include in its annual budget any outstanding indebtedness of the board, and require the levy of a tax to meet such indebtedness.</p> <p>5. Municipal Corporations — Limitation of Indebtedness — Pleading— Burden of Proof. — It is incumbent upon the party attacking the validity of the indebtedness of a municipality to allege and.prove that the indebtedness exceeds the debt limit prescribed by the Constitution.</p> <p>fi. Pleading — Cross-Petition—Section 96, Civil Code. — Under section 96, Civil Code, a cross-petition will not lie against a plaintiff.</p>

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

<p>1. Pleading' — Practice—When Answer May be Filed in Open Court.— The provisions of the Code prescribing the time within which a defense must be made in order to avoid a judgment by default do not limit the power of a court to permit an answer to be filed in court at any time before it is due.</p> <p>2. Pleading — Answer—Sufficiency—Waiver.—Though some of the denials in an answer may not be sufficiently definite and specific, yet where there was no demurrer nor motion to make more specific, plaintiffs cannot complain of such technical defects after evidence has been heard on the issues made, the case tried on its merits and- judgment rendered for- defendants.</p> <p>3. Appeal and Error — Deeds—Cancellation—Fraud and Undue Influence — Finding of Chancellor — Sufficiency of Evidence. — Evidence in an action to set aside a deed on the ground of fraud and undue influence held to sustain the finding of the chancellor in favor of defendants.</p>

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

<p>1. Criminal Law — Misdemeanor—Trial of Defendant in His Absence, • — Orim. Code, section 184, confers upon the circuit' court authority to try, in his or her absence, a defendant under indictment for a-misdemeanor, who, by previous service of its process or. admission to bail, has been subjected to its jurisdiction.</p> <p>2. Criminal Law — Trial of Defendant in His Absence — New Trial. — - To authorize the granting of a new trial on the ground of accident or surprise preventing the presence of the defendant at the trial,, it must be made to appear from satisfactory proof in support of the motion for the new trial that the accident or surprise was-such an event or happening as could not have been avoided'by the exercise on the defendant’s part of the degree of care necessary to the exigency; and as such care -was not shown to have been exercised by the defendant in this case, the action of the circuit court in refusing her a new trial on that .ground was not error.</p> <p>3. Criminal Law — Maintaining Bawdy House — Excessive Punishment. — As. the offense of maintaining a disorderly (i. e., bawdy} bouse is a misdemeanor at the common law and punishable thereunder by a fine in any amount or imprisonment in jail any length of time, or both, in the discretion of the jury, the infliction, by verdict of a jury and judgment of the court, upon a defendant convicted under an indictment charging that offense of a fine of $500.00 and confinement of one year in jail by way of punishment is not such excessive punishment as would authorize the granting of a new trial.</p>

<p>1. Nuisance — Abatement—Board of Health. — The State Board of Health or county board of health of a county where a water company is operating may require ¡such water company to abate any nuisance which it m'ay 'be maintaining 'that causes sickness among the people.</p> <p>2. Nuisance — Proceeding Against Water Company — ’Board of Health. —A water company engaged in supplying water to the city and its inhabitants is a quasi public institution and it is its duty to provide water suitable for the purposes for which it is to be used, and if it fails to do so and provides muddy, filthy, impure and unwholesome water it may be proceeded against criminally by the board of health either of the state or of the county in which the water company operates.</p> <p>3. Nuisance — Abatement—Board of Health. — While a board of health may cause a nuisance which produces sickness or disease in the community to be abated it has no power or authority to direct the manner in which the nuisance shall be abated or to prescribe any particular method to be employed in the abatement of the nuisance, but can only require its abatement.</p> <p>4. Nuisance — Abatement—Proceeding Against Water Company. — Although 'a .water company is guilty of furnishing to a city and its inhabitants impure and unwholesome water the board of health cannot prosecute said water company criminally for failing to obey an order of the board of health requiring the water company to install a filtration plant to improve, clarify and purify the water, but its powers are confined to abatement of the nuisance without the right to direct the manner of its abatement.</p>

<p>1. Infants — Guardian Ad Litem — Process.—Where the guardian of an infant is the plaintiff in the action and the ward is the defendant, the court or clerk should appoint a guardian ad litem upon whom process for the infant defendant can be served, unless the infant resides with some one on whom process can be served as provided in section 52 of the Civil Code. A judgment entered against an infant who has not been served with process in the way and manner provided in section 52 of the Civil Code is a nullity.</p> <p>2. Infants — Sale of Infant’s Real Estate — Process.—After real estate of an infant has been sold under a judgment entered before process was served upon the infant in the way and .manner provided in section 52 of the Civil Code, the purchaser at the master's sale may have relief from his purchase and bonds if he file exceptions to the report of sale showing the fact that the infant defendant and owner of the land was not properly before the court.</p> <p>3. Executors and Administrators — Action to Settle Estate.' — An administrator bringing an action for the settljment of the estate of his decedent and averring that his decede it was the owner of an undivided interest in real property is entitled to a sale of only that part of the real estate belonging to his decedent and not to a sale of the entire property.</p>

<p>1. Railroads — Fences and Cattle Guards. — A railroad company is required to erect and maintain “cattle guards” at such places only as the statute, section 1793, Ky. Stats., designates.</p> <p>2. Railroads — Fences and Cattle Guards. — Section 1793, Ky. Stats., requires a railroad company to erect and maintain “cattle guards” at the terminals of fencing along its tracks, wherever under the fencing laws a fence upon both sides of the railroad right of way is required to be maintained, and if one of these terminal points is a private passway, the railroad company and the owner of the land for which the passway is maintained, must bear the expense of the “cattle guards” equally, but, the duty being upon each, the company cannot excuse itself as against one other than the pass-way owner upon the ground, that the owner of the passway has not required the erection or maintenance of the “guards,” or has not offered to contribute to their erection.</p>

<p>1. Judgment — Opening or Vacating. — A judgment ordering a sale of real estate of persons under disability as allowed by the Code divests them of their title to the land and is a final appealable order, which the court may not vacate after the expiration of the term at which it is entered except in the mode provided in sections 344, 519 and 520 and for the causes mentioned in sections 340 and 518 of the Code.</p> <p>2. Judgment — Setting Judgment Aside — Pleading.—The fact that the causes relied upon for setting aside such a judgment after the expiration -of the term were presented by an amended and supplemental pleading in the pending action to which the adverse parties entered their appearances rather than by a new and independent petition, which is a .substantial but not a literal compliance with the method prescribed by section 520 of the Code, is not sufficient reason for denying the motion, where the facts alleged come within the provisions of subsection 5 of section 518 of the Code for the protection of persons under disability.</p> <p>3. Infants — Parties.—Trustees holding the legal title to lands in trust for infants are necessary parties to a suit for sale under the Code, and unless they are made parties thereto an order of sale is at least erroneous if not void where !by the will from which title is derived they have a discretionary power to sell. • Subsection 8 of section 494 of the Code.</p> <p>4. Infants — Sale of Infants’ Real Estate. — Provisions of will and deed examined and held not to forbid a sale of real estate of joint owners under Code provisions, but whether the provisions of the will preclude a sale for distribution under section 490 of the Code is a question not decided.</p>

<p>1. Manufactures — Determining Factor in Manufactures. — It is not the means or methods employed nor the nature or number of processes resorted to or the size of the factory or the number of hands it employs 'or the volume of the machinery in use, but the result accomplished that determines whether the article is manufactured or not.</p> <p>2. Manufactures — Manufacture and Manufacturing Establishments. —The meaning of the words “manufacture” and “manufacturing establishment” has been adapted to meet the varying circumstances arising in the case or class -of cases in which it was necessary to define them, so that the intent with which they were used might be accomplished. The purpose of the lawmaking body in using the word has always been allowed to have controlling weight in the decision of the meaning that .should be .attached to.them.</p> <p>3. Municipal Corporations — Exemption of Manufacturing Establishments.- — Daws granting tax exemptions to manufacturing companies, because in derogation of common right, are not so favorably regarded by the courts as to justify an interpretation that would -extend their meaning by mere implication. In other words, tax exemptions, like other cases of special privileges, are to be strictly construed.</p> <p>4. Municipal Corporations — Manufactures—Exemption From Taxation. — Machinery and materials used in printing and in issuing a newspaper are not “products in course of manufacture,” nor is the publisher “engaged in manufacturing” within the meaning of exemption. (2) of section. 4019a-10, vol. 3, Kentucky Statutes, so as to exempt the property from municipal- taxation.</p>

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

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

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

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

<p>1. Deeds — Construction.—The deed of conveyance under which both parties are claiming an interest in the property in controversy construed to vest in the appellant the title to the lot and to grant to the appellee the use and occupancy of the second story of the original building thereon, or the second story of any building erected thereon, to replace the one existing at the time the deed was executed, with the right of reasonable means of ingress and egress to and from the rooms in said second story.</p> <p>2: Deeds — Construction—Ingress and Egress. — A provision in the deed reserving to the two grantees unmolested ingress and egress to and from their several apartments in the building, each free from ■the prevention and molestation of the other, cannot be construed as vesting in them a joint title to the lot in view of the intent and purposes otherwise and elsewhere clearly expressed in the instrument.</p> <p>3. Deeds — Use of Part of Building. — A clause in the deed reserving to the appellee the right to use, occupy and enjoy a second story of any building that may or might be erected on the lot has reference to any building erected in replacement of the one then existing, in the event of its destruction, and vests in appellee no rights with reference to buildings subsequently constructed on another part of the lot.</p> <p>4. Injunction- — Evidence.—Evidence examined and held tó be insufficient to warrant the granting of an injunction.</p>

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

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

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

<p>1. Appeal and Error — Review—Waiver.—On appeal, a ruling of the lower court complained of, whether upon a motion or otherwise, will not be reviewed, in the absence from the record of an order or judgment showing such ruling. If the record shows that the motion was made as claimed, but fails to show that the court acted upon it. t'he appellate court will assume that it was waived by the parties, or that action upon it was not requested of the •trial court.</p> <p>2. Master and Servant — Personal Injuries — Pleading.—Where, in an action for damages against a railroad company on account of personal injuries sustained by an employe, acting as brakeman on a freight train, the petition alleged that they were received because those in charge of the train, in making a coupling, negligently ran detached cars against the one on which the plaintiff was standing “with great force and knocked the car he was on and gave it a kick or quick jerk,” which threw him off the car and caused his injuries: Held, that the petition failed to state a cause of action; consequently the ruling of the trial court in sustaining the defendant’s general demurrer to same was not error.</p> <p>3. Master and Servant — Operation—Negligence.—It is well known to ■railroad train men, that, in operating a freight train, more or ■less jerking or bumping of the train is always present, because they may and generally do result from its usual movements; but in order for one assisting in operating such train to recover damages for personal injuries sustained from the knocking or bumping of the cars thereof, the fact that it was unnecessary and unusual, or caused by unnecessary or unusual force in the manner of operating the train, must be made to appear in order .to establish actionable negligence on the .part of those in control of it.</p> <p>4. Master and Servant — Personal Injuries — Negligence—Pleading.— When, as in this case, the petition confines the negligence complained of as causing the plaintiff’s injuries to the knocking or jerking of the car on which he was placed, and does not allege that such knocking or jerking was unnecessary or unusual, or caused by unnecessary or unusual force in the manner of operating the train, it does not state a cause of action; and the plaintiff cannot rely upon any other acts of negligence of those in charge of the train not alleged.</p> <p>5. Master and Servant — Assumption of Risk. — One employed as a brakeman or switchman, and whose’ duty requires him to be on and about the cars, is presumed to be .fully advised as to the risks incident to his employment; and, in accepting such employment, he assumes the risks ordinarily incident to the business, and if injury or death result from such ordinary risk, no recovery can be had.</p>

<p>Contracts — Breach—Finding of Chancellor — Sufficiency of Evidence. — In an action for damages for a breach of a contract, evh dence held to sustain the finding of the chancellor.</p>

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

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

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

<p>1. Homicide — Evidence.—Evidence examined and held to warrant the finding of the jury that the shooting and killing of Mary Sparks was a premeditated and wilful act on the part of the appellant.</p> <p>2. Criminal Law — Objection to Evidence — Appeal and Error. — Where an objection is made to testimony offered and the court does not rule on it the objection should be treated as overruled and the objection is not available on appeal unless an exception is taken to the admission of the testimony.</p> <p>3. Criminal Law — Wrongful Acts of Witness — Evidence.—Evidence of wrongful acts of a witness, developed on cross-examination, tending to show the motives of the witness in testifying is not prohibited by section 597 of the Code but is admissible for the purpose of enabling the jury to place a proper estimate on the testimony of the witness, While the better practice is for the trial court to admonish the jury at the time of the introduction of such evidence that it is admitted for the purpose of showing, if it does show, the motives and feelings of the witness, the failure to do so in this instance was not prejudicial error in view of the fact that the witness did not testify on a material point in the case but was introduced to impeach a witness for the prosecution who had not testified to any material fact conducing to prove appellant’s guilt.</p> <p>4. Homicide — Threats—Evidence.—Evidence of a threat made, shortly before the killing, by one who participated with appellant in a fight that resulted in the killing is competent as against appellant . when considered in connection with other proven circumstances and facts, as tending to show a common design and purpose of the two to provoke the fight that resulted in the offense for which appellant was tried.</p> <p>5. Homicide — Motive—Evidence.—Evidence of warrants and indictments procured against a member of appellant’s family by a brother of deceased and the attempt of appellant to provoke a quarrel shortly thereafter with said brother was competent, when considered in the light of other circumstances and facts', as tending to show the motive and purposes of appellant in provoking. the fight in which deceased was killed.</p> <p>6. Criminal Law — Instructions.—The instructions correctly submitted to the jury the law of the case and there was ample evidence to warrant a conviction thereunder.</p>

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

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

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

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

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

<p>1. Criminal Law — Declarations—Competency.—The declarations oí one, jointly indicted for a crime, with another, not made in the presence or hearing of the other, are not competent evidence against -the other, unless there i-s first shown by the evidence, that a conspiracy existed between them to commit the crime.</p> <p>2. Homicide — Intimacy Between Accused and Wife of Deceased-Motive. — Where one is accused of murder, it is competent to prove that an improper intimacy existed between the accused and the wife of the deceased, to show a motive on the .part of the accused to commit the murder, ’but such fact cannot be proven by the declarations of the wife, not made in the presence or hearing of the accused.</p> <p>3. Homicide — Opinion of Witness — Discretion of Jury. — An improper intimacy between one accused of murder and the wife of deceased, cannot be proven by the opinion of a witness, but the facts must be shown and the jury left to determine, whether the facts prove such intimacy.</p>

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

<p>1. Pleading — Defects—Cure by Other Pleadings and Verdict. — Failure of a petition to allege demand before suit is cured by an answer alleging that no demand was made, and by a verdict rendered pursuant to an instruction submitting the issue of demand.</p> <p>2. Pleading — Corporations—Sufficiency of Petition.to Recover Dividend on Stock. — An allegation in a petition to recover a dividend on stock, that “the board of directors of said corporation, by proper entries upon the records of the corporation, declared a dividend,” is a sufficient averment of the declaration of a dividend; it not being necessary for plaintiff to make the further allegation, that at the time the dividend was declared the company had on hand sufficient profits or surplus to meet the dividend.</p> <p>3. Appeal and Error — In Absence of Issue, it is not Error to Hear Evidence on Question or to Refuse to Submit Question to Jury.— Where, in an action by a former stockholder to recover a dividend on stock, there was no issue as to whether the company had on ■hand sufficient profits or surplus with which to pay the dividend, it was not error to refuse either to hear evidence or to submit the question to the jury.</p> <p>4. Corporations — Sale of Stock — Stock Dividend — Persons Entitled.— He who owns stock in a corporation at the time the dividend is declared, is entitled to the dividend, and in the absence of an agreement to the contrary, a subsequent sale of the stock will not carry the dividend with it, although the dividend is not payable until after the sale or transfer.</p> <p>5. Contracts — Interpretation of Contract is for the Court. — Interpretation of contract of sale is for the court and not for the jury.</p> <p>6. Contracts — Sale of Stock- — Interpretation.—A contract for the sale of stock containing the provision, “that said stock shall be sold in full and not in part,” does not include the dividend theretofore declared on the stock.</p> <p>7. Appeal and Error — Evidence—Submission of Question to Jury— Right of Party to Complain. — One who procures certain evidence to be introduced cannot complain of the action of the court in admitting such evidence, or in submitting the question to the jury.</p> <p>8. Trial — Verdict—Sufficiency of Evidence. — Where, on the question whether or not a dividend passed with the sale of stock, plaintiff testified one way and his purchaser the other, it cannot be said that the finding of the jury that the dividend did not pass is flagrantly against the evidence.</p>

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

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

<p>Appeal and Error — Dismissal.—Tbe appellant having failed to file any brief, and no error prejudicial to bis substantial rights appearing upon the record, the appeal is dismissed.</p>

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

<p>1. Statutes — Pleading Public Statute — Exceptions.—One wbo asserts a right -which is conferred by a statute subject to a specified exception, must negative the exception if it is contained in the same sentence or paragraph of the statute that creates and defines the right, but if the exception is not contained in the sentence or paragraph that creates and defines the right, but is found in a separate section or distinct proviso or paragraph it is matter of defense to be pleaded by the adverse party.</p> <p>2. Statutes — Pleading Public Statute — Exception.—Applying this long established rule of pleading to article 13, chapter 39 of the General Statutes, which formerly created and defined the right of homeistead, we uniformly held that an exception to the right found in a separate and distinct section of that statute was matter of defense and need not be negatived by one claiming homestead; but applying the same rule of pleading to section 1702, Ky. Stats., which now confers and defines the right of homestead, the same exception thereto being contained in the same sentence and paragraph that confers the right, the one who asserts the right must negative the exception.</p> <p>3. Pleading — Burden of Proof. — The duty of pleading facts in order to state a cause of action or defense carries with it the burden of proving such facts; and this burden is not shifted because the issue is irregularly formed.</p>

<p>1. Manufactures — What Determines Whether Article Manufactured. —It is not the means or methods employed nor the nature or number of processes resorted to or tbe size of tbe factory or tbe number of hands it employs or the volume of machinery in use, but the result accomplished that determines whether the article is manufactured or not.</p> <p>2. Manufactures — Meaning of Words “Manufacturer” and “Manufacturing Establishment.” — The meaning of the words “manufacture” and “manufacturing establishment” has been adapted to meet the varying circumstances arising in the case or class of cases in which it was necessary to define them, so that the intent with which they were used might be accomplished. The purpose of the lawmaking body in using the words has always been allowed to have controlling weight in the decision of the meaning that should be attached to them.</p> <p>3. Municipal Corporations — Exemptions.—Laws granting tax exemptions to manufacturing companies, because in derogation of common right, are not so favorably regarded by the courts as to justify an interpretation that would extend their meaning by mere implication. In other words, tax exemptions, like other cases 'of special privileges, are to be strictly construed.</p> <p>4. Manufactures — Raw Material. — “Raw material” from which an ' article’ is manufactured need not be crude material and if the material used in producing the article, claimed to be manufactured by mecha,nical processes, is changed and altered so as to form a distinct finished and completed product, adapted for the use for which it was intended in its then condition, it will be treated as “raw material,” although it required mechanical processes to produce it from the crude material.</p> <p>5. Municipal Corporations — Exemption from Taxation. — From the facts appearing in the opinion (which are copied from the agreed ■stipulation upon which the court based the judgments appealed . from) it is held that defendants were “engaged in manufacturing” at their plants in Henderson, Kentucky, and that the city is not authorized to assess and collect taxes on their machinery and products in course of manufacture or their raw material actually on hand for the purpose of manufacture; but the lumber used only for crating purposes in preparing the manufactured article for shipment is not exempt under the statute, since it is not “on hand for the purpose of manufacturing.”</p>

<p>1. Exceptions, Bill of — Piling After Adjournment. — If time is given till a fixed day of the trial or succeeding term within which to prepare and file bills of exceptions and the court should for any cause adjourn the term to a day beyond that.fixed in the extended time, the one obtaining the leave may either file his bill of exceptions with the cleric of the court or may file it in court upon its reconvening though beyond the time given, since the adjournment automatically extends the time.</p> <p>2. Railroads — Employers’ Liability Act — Suit by Dependent Parent.— Under the Federal Employers’ Liability Act a dependent parent of an adult child cannot recover compensation by way of solatium for grief or wounded feelings because of the death of the child, but the compensation in such cases is limited to the pecuniary loss which the dependent was receiving or had a reasonable expectation of receiving from the deceased child, and the recovery should not exceed the present cash value of such loss.</p> <p>3. Railroads — Excessive Damages. — The sole dependent was a father who was 67 years of age and who had but slightly more that eleven years’ expectancy. The deceased was a son 27 years of age and a telegraph operator. When performing duties near to his father’s residence he boarded there and contributed from fifteen to twenty dollars per month and also contributed to his father’s clothing not exceeding thirty dollars per year: Held, that a verdict in the suit by the administrator for the benefit of the father for $4,000.00 was excessive.</p> <p>4. Railroads — Joint Tort Feasors — Dependency.—Wthere dependency exists so as to authorize a recovery it may not be affected by the amount of property held by either the dependent or the deceased, and the amount of the. recovery from a joint tort feasor with the defendant, where it was for the benefit of the estate of the deceased servant and not for his dependents, can not be deducted from the entitled recovery under the liability act. And this is true although the dependent for whose benefit the suit was brought might, under the existing facts, inherit the entire judgment collected from the joint tort feasor of the defendant railroad company or carrier.</p>

<p>1. Deeds — Mental Capacity — Undue Influence. — The gratuitous grantee of an aged and infirm parent must, when the transfer is assailed, show the good faith arid fairness of the transaction; that the conveyance was for a valuable consideration; that the parent was possessed of sufficient mental capacity to enter into such transaction and that the conveyance was not obtained by the exercise of undue influence by the grantee over the grantor. If he fails to do so the conveyance will be set aside.</p> <p>2. Deeds — M&ntal Capacity — Undue Influence. — The deed of one who is mentally weak or imbecile is not absolutely void but only voidable, the burden being upon the grantee when the conveyance is assailed to show its freedom from fraud and undue influence.</p> <p>3. Deeds — Undue Influence — Setting aside.- — When a young, vigorous •son obtains from his aged and infirm father a conveyance of valuable .mineral rights without consideration and it is shown that the grantee had charge of the affairs of the grantor, slight evidence will be sufficient to warrant a court of equity in setting aside such conveyances.</p>

<p>1. Master and Servant — Safe Place to Work. — An employe in a rock quarry wRo is injured wRile engaged in sucR work as necessarily makes the place unsafe cannot rely upon' the master’s obligation to furnish him a safe place to work.</p> <p>2. Master and Servant — Assumption of Risk. — An employe of a rock quarry who is engaged in the loading of cars from a pile of lose stone by shoveling the same into the cars from the base or foundation of the pile, is engaged in such work as necessarily makes unsafe his place of work, and he therefore assumes the risk incident to the undermining of the pile of loose stone.</p> <p>3. Master and Servant — Safe Place to Work. — If one engaged in quarrying stone puts in a shot at a point on the cliff above the quarry where his employes are required to work, and negligently leaves hanging in the cliff loose rock resulting from the shot, the duty devolves upon him to remove such loose stone before directing his' employes to work in the quarry under it.</p>

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

<p>1. Easements- — Prescription.—Where one claims a prescriptive right to a passway in common with others of a limited community and participates in -a suit to establish that right, though not a formal party to the suit, he is nevertheless bound by the proceedings and judgment therein.</p> <p>2. Appeal and Error — Res Judicata. — The doctrine of ne-s judicata as announced by -this court means that where -a question or a fact is once litigated and determined by the judgment of a court of competent jurisdiction, no question or fact that was litigated or could have been litigated therein can thereafter be re-litigated by the same parties or their privies.</p> <p>3. Appeal and Error — Res Judicata. — It is not essential to the application of the doctrine of res judicata that the person against whom it is invoked be a formal party to the first proceeding, but if he participated in the former suit, having a common interest therein with the formal parties to the action and with the view of establishing a common right, he is bound by the judgment therein so far as it adjudicated that right.</p> <p>4. Judgment — Binding Effect Upon Class. — Where one of a class, having common interests, is selected and designated to act for and on behalf of that class in instituting and prosecuting a suit, the proceedings and judgment in such a suit are binding on all of the class.</p>

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

<p>1. Appeal and Error- — Granting of Appeal by Lower Court. — Under section 950 of the statutes, where only a sum of money less than $500.00 is involved on appeal, this court must grant the appeal, but a statutory lien upon real estate being also directly involved, the lower court properly granted the appeal,</p> <p>2. Contracts — Time Essence of. — Where plaintiff agreed to construct a grade for a sidetrack In consideration of defendant’s agreement to pay him $1,500.00 if he. completed the work by a certain date, but only $1,250.00 if he did not complete it by that date, time was of the essence of the contract so far as the increased pay is concerned, and having failed to complete the work within the specified time plaintiff was not entitled to the larger amount because of the fact that his work was hindered and delayed by an unforeseen epidemic of influenza or that the work was accepted by defendant when completed.</p> <p>3. Interest — Time of COmputation.-^-Interest Was properly allowed upon the uncofltested amount due plaintiff from date of judgment rather than from date the work was accepted, since defendant then and by his answer offered to pay plaintiff the amount which he refused to accept and expressly waived a legal tender.</p> <p>4. Judgment — Omitting Lien — Clerical Errors. — Where by oversight or inadvertence rather than design an order of sale to enforce an adjudged lien for the uncontested amount was omitted from the judgment, to which the record clearly shows plaintiff was entitled, and which was not opposed by the defendant, the error is clerical rather than judicial, and without motion to correct it before appeal does not furnish ground for reversal.</p>

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

<p>1. Equity — How Orders Enforced — Writs.—Courts of equity may enforce their orders and decrees by any appropriate writ, allowable at law, or by attachment and imprisonment for contempt in disobedience of its orders.</p> <p>2. Equity — How Orders Enforced — Writs.—As a general rule, a court of equity will not enforce an order or decree for the payment of money, by attachment and imprisonment, except as against a fiduciary or one occupying a position of trust, where a fund is the subject of the litigation, and the possessor of it is under the control of the court, or as against the officers of the court, and will not grant an attachment to enforce a judgment for a debt or claim upon assumpsit, or a contract.</p> <p>3. Contempt — Punishment.—There can be no contempt for failure to pay money until an order of court has been made for that purpose and a failure to comply therewith, but where the court has jurisdiction to make the order failure to comply with it constitutes contempt, and the contemnor may be proceeded against by attachment and imprisonment until the contempt is purged.</p> <p>4. Courts — Fund in Court — Commissioners—Officers of Court. — Attorneys are officers of the' court, and a fund in the hands of the master commissioner of the court for purposes of distribution is a fund in court which it may protect from misappropriation or collect from one who mistakenly or otherwise withdraws it. If, therefore, the commissioner without an order of court to do so wrongfully pays any of the fund to an attorney in the case, the latter may be preceeded against by rule, and, upon failure to comply with the orders of the court for repayment, may be punished for contempt.</p>

<p>1. Waters and Water Courses — Eights of Contiguous Owners — Surface Waters — When Agreed Ditch Will Be Regarded as Natural Channel. — Where the upper and lower proprietors, for the purpose of confining the waters and thereby benefiting the land of each, constructed a ditch in practically the same place as the natural channel, and the ditch merely received the water that would have naturally flowed on to the lower proprietor’s land in the natural channel, and there was nothing to show that the flow of the water was augmented or made more burdensome by the substitution of the ditch, and the arrangement was acquiesced in for a great number of years, the agreed ditch became the natural channel, and an obstruction in the ditch will be regarded as an obstruction of the natural flow of the water.</p> <p>2. Waters and Water Courses — Rights of Contiguous Owners. — As ordinarily the burden is on the lower proprietor to see that the natural flow of the water, at the point where it enters his land, is not obstructed, he has no ground for complaint that the judgment imposed this duty on the upper proprietor, with the consequent right to enter the lower proprietor’s land for that purpose.</p> <p>3. Pleading — Petition—Sufficiency—Waiver.—Where there was no demurrer to the petition, and the case was fully prepared and tried on its merits, defendant will not be heard to complain of mere technical defects in the petition.</p>

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

<p>1. Master and Servant — Negligence—Appliances.—A railroad cross-tie, wbicb is not in the track or otherwise in use, is not an appliance within the meaning of the federal statute • making railroads liable to employes injured by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, trucks, bolts, wharves or other equipment, and. a sun crack' or splinter on the side of a ■crosstie is not a defect in an appliance within the meaning of said act.</p> <p>■2. Master and Servant — Assumption of Risk. — A section hand on a railroad whose duty it is to handle crossties impliedly assumes all the ordinary and obvious risks of danger incident to the employment and this includes splinters and sun cracks in and on cross-ties.</p>

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

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

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

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

<p>1. Forcible Entry and Detainer — -As Judge of Quarterly Court County Judge Without Jurisdiction. — The judge of a county court has jurisdiction to issue a warrant of “forcible entry and detainer,” or (as in this case) “forcible detainer,” and, also, to preside at and conduct the trial under the. writ; but as judge of the quarterly court of .the county he is without jurisdiction to issue the writ, nor can a trial thereunder he had in the quarterly court, as that court, though presided over by the county judge, has not been given by law jurisdiction to hold or conduct such trial.</p> <p>2. Forcible Entry and Detainer — Where Error in Trial did not Invalidate Judgment.. — Where it is apparent from the record, as in this case, that a warrant of forcible detainer was duly issued by the judge of the county court in his official capacity as such, and that following waiver of a jury by the .parties, the trial thereunder was had before him in his official capacity as judge of the county court, the fact that by mistake or inadvertence the -orders, including the judgment, appertaining to the trial were entered in an order book used by the quarterly court did not invalidate the trial or resulting judgment.</p> <p>3. Forcible'Entry and Detainer — Validity of Verdict and Judgment— Form. — Neither the validity of the verdict returned by the jury on the traverse, in the circuit court of the warrant of forcible detainer, nor the judgment entered thereon was affected by the failure of the verdict to express the. jury’s findings in .the form prescribed by the Code, as its language clearly shows that it could have had no other meaning than that it found the defendant guilty of the forcible detainer charged, and such was the effect given it by the judgment.</p>

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

<p>1. Contracts — Restraint of Trade. — A contract in restraint of trade is not one which in fact restrains or may restrain trade, and the material consideration in determining whether a monopoly exists, is not that prices are raised and competition excluded, but that the power exists to raise prices and exclude competition when it is desired so to do.</p> <p>2. Contracts — Restraint of Trade. — Combinations and contracts which tend to create a monopoly are against public policy and therefore illegal, because they deprive -the community of the benefits of competition and thus place the power to control production and fix prices in the hands of a few persons and corporations.</p> <p>3. Contracts — Monopolies—Restraint of Trade — Motion Pictures.— Where the only motion picture houses in operation in a city are controlled by one set of people, and it is shown that they have ¡so combined their interests to prevent competition and have prevented other shows -from exhibiting in -the city, and have leased available vacant property to avoid competition by other exhibitors, thus confining the patrons within narrow limits of choice as regards the price and character of shows to which they are privileged to attend, and it also appears that one of the controlled houses is kept dark, another is open only on Saturdays and special occasions', held to be such evidence of a monopoly that a contract of lease for one of the houses is void, being in restraint of trade.</p> <p>4. Contracts — Restraint of Trade. — Contracts in restraint of trade have never been considered as entitled to 'any special indulgences in the administration of the laws, and before they can he upheld ” it must clearly appear that they do not impose any unreasonable restraint upon trade.</p> <p>5. Contracts — Restraint of Trade. — The . common law doctrine of restraint of trade, as well as the statutes on the subject, are in foroei in the state of Kentucky.</p>

<p>1. Deeds — Construction.-—In construing a deed, the terms of which, are ambiguous, it is proper for -the court to consider all of the circumstances surrounding the execution -and delivery of the deed, including the situation of -the parties and any previous agreement which the deed was meant to effectuate.</p> <p>2. Deeds — Construction—Reserving Timber. — The words “except” and “excepted” as used in the deed or title bond with reference to the timber in -controversy are not -to be construed in a technical sense but must be 'considered with the view of ascertaining the intention of the parties and especially that of the grantor.</p> <p>3. Deeds — Timber—Mines and Minerals. — It is apparent from a consideration of the deed in controversy in connection with its origin and the previous agreement which it was executed to effectuate that the purpose and intent of the grantor was to pass title to the surface estate, including the timber, reserving to himself the right •to enter upon ithe land and take the coal or other minerals therefrom and to use at that time and for .that purpose such timber ¡not exceeding twelve inches in diameter as might be necessary.</p> <p>4. Deeds — Mines and Minerals. — The rights of the grantor as'the owner of the minerals in the land, with reference to protecting the character of timber described from waste or injury before mining operations commenced, is not decided here as the question is not presented 'by this record.</p>

<p>1. Criminal Law — Capacity -to Commit and Responsibility for Crime. ■ — Where a defendant in a criminal case pleads, in defense of •the charge in the indictment, that he was insane at the time of the commission of the crime, the burden is on him to show by a preponderance of the evidence that his mind was so unbalanced or so far gone that he did not know right from wrong, and was not able to comprehend or realize what he was doing or the natura] consequences of his act.</p> <p>2. Criminal Law — Mental Capacity — Non-Expert Witnesses. — Before a non-expert witness can be allowed to -express -an opinion as to the mental condition of a defendant in a criminal prosecution, he must state facts -sufficient to show that -he had opportunity to- see, observe -and to form an opinion as to the mental status of the defendant, and even then his -opinion is not of so much value, as evidence, as the facts upon which it is based.</p> <p>3. Criminal Law — Insanity -a-s a Def-e-ns-e. — Although a defendant may plead insanity in defense of the charge in the indictment and call witnesses to testify to facts fully sustaining his -plea, yet if there be evidence to the contrary, -tending to show that -the defendant at the time of the commission of the crime had sufficient mind to know and understand what he was doing, and that the act he was about to commit was wrong, the -ca-se is one for the jury.</p> <p>4. Criminal Law — Self-Defense—Instructions.—Where the defendant does not plea-d self-defense and there is no evidence tending to show that the killing was done in defense of the defendant, the trial court should not give -an instruction upon self-defense.</p>

<p>1. Deeds — Appeal and Error. — Where this court has once passed upon the sufficiency of a deed it will adhere to such ruling if the sufficiency of the same deed or certificate is assailed in a subsequent action.</p> <p>2. Deeds — Construction.—If the description of a lot be susceptible of more than one construction which will affect its location, that construction, put upon the description by the grantor and grantee at the time of the making of the deed will be conclusive and binding not only upon the parties to the deed but on all persons in privity with them.</p>

<p>1. Municipal Corporations — Publication of Ordinance. — The term used in section 3069, Kentucky Statutes, “for at least two weeks just preceding the election” requires a publication of the ordinance in each issue of the official newspaper published during the prescribed period.</p> <p>2. Municipal Corporations — Indebtedness—Ordinance.—Under section 3,069, Kentucky Statutes, -the ordinance . submitting to tlie voters tbe question of incurriing an indebtedness is not required to contain a statement of what rate of taxation will be necessary during the life of the bonds to raise a fund to pay the interest and for a 'sinking fund, 'but the -amounts necessary for those -purposes for each year must be -stated.</p> <p>3. Municipal Corporations — Ordinance—Indebtedness.—Under section 3069, Kentucky Statutes, the ordinance submitting to the voters a question of creating a debt, need not contain a statement of -the value of the property assessable for taxation nor the then indebtedness of the corporation, 'so- as- to show -that the creation of the proposed debt wil-1 not be violative of section 158 of the Constitution.</p>

<p>,1. Dower — Homestead—Election—Presumption.-—Where no election by the widow between homestead and dower was shown, -it wil-I be -conclusively presumed, after the lapse -of a reasonable time, that she elected to take homestead, where that estate was the more beneficial.</p> <p>2. Adverse Possession — Homestead—One Who Purchases Homestead Prom a Widow Becomes an Adverse Holder Prom the Time he Took Possession. — Where a widow abandons her homestead, the ■owner of the fee is -entitled to immediate possession and the purchaser from the widow, While taking nothing under -his purchase, becomes -an adverse holder from the time he took possession.</p> <p>3. Adverse Possession — Title Acquired by Fifteen Years’ Adverse Holding. — One -who holds land adversely for fifteen years acquires title by adverse -possession.</p>

<p>1. Intoxicating Liquors — Misjoinder—Election.—The overruling by the trial court of the appellant’s demurrer to the indictment was error compelling a reversal. The demurrer should have been sustained because of ,a misjoinder of offenses in the indictment and the necessity for an election by the Commonwealth as to which it would prosecute, the first offense attempted to be charged being an unlawful sale of whiskey by the. appellants, the second the unlawful transporting, for sale,’ of whiskey -by them.</p> <p>2. Intoxicating Liquors — Demurrer.—The demurrer was also fatal to the indictment because of its failure to allege the name of the purchaser of the whiskey charged to have been sold, or that the name was unknown to the grand jury; and also because of its failure to allege that such sale, and that intended of the whiskey transported, was not “for sacramental, medicinal, scientific, or mechanical purposes in the Commonwealth of Kentucky.”</p> <p>3. Indictment and Information — Exceptions.—An exception or exceptions contained in the sentence or paragraph of the statute that creates and describes the offense must be negatived in the ■indictment.</p>

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

<p>1. Taxation — Illegal Tax — Injunction—Assessment.—While a court of equity will lenjoin the collection of an illegal tax it is without power to interfere with an excessive assessment. In the latter case the exclusive remedy is given in section 4128 of Kentucky Statutes.</p> <p>2. Taxation — Injunction.—A court of equity is without power and jurisdiction to grant relief by injunction from an excessive assessment, even though the assessment is discriminatory in the sense that the valuation fixed was excessive as compared to the assessment of like property similarly situated.</p> <p>3. Courts — Jurisdiction—'How Conferred. — Jurisdiction means the power to hear, determine and enforce the conclusions reached. It is conferred by law and the parties to a suit cannot by consent give a court, as such, jurisdiction of a matter which is excluded by the law of the land.</p>

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

<p>1. Depositions — Defects and Objections. — -Exceptions to depositions upon wbicb no ruling is procured from tbe trial court are waived.</p> <p>2. Adverse Possession — Title Prom Ancestor — Pleading.—Plaintiffs -are not relieved of proving title -of ancestor under wbicb they claim, where that title -is denied by both th-e pleadings an-d evidence of defendants, -and defendants -claim -title by adverse possession for the statutory period, even though defendants in their testimony admit -they acquired possession simply from tbe ancestor whose title is denied.</p> <p>3. Evidence — Insufficiency.—Evidence examined an-d held insufficient to show either -title- or possession in the ancestor when he died.'</p>

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

<p>1. Insurance — Life Insurance — Suicide.—A clause in a life insurance policy exempting tbe company from liability on tbe contract, in case tbe insured came to bis death by suicide, is enforcible, but tlie- beneficiary may have a recovery even though the insured took his own life, if at the time he did so he was so insane that ■he did not know what he was doing, or that the act he was performing was likely to result in his death, but if he had enough mind to know that the act would probably result in his death, or if he inflicted it with that intention, the company is not liable.</p> <p>2. Insurance — Life Insurance — Suicide—Instruction.—It was error for the trial court to instruct the jury that if it believed from the evidence that the act of self-destruction of the insured was the result of an irresistible impulse, over which his will had no control, and that such act of self-destruction was not an act of his volition, the jury should find for the plaintiff, the correct rule being that if the insured was so insane or his mind so far gone that he did not know and did not realize that the act which he was performing would likely result in his death.</p> <p>3. Insurance — Life Insurance — Insane Persons — Beneficiaries.— Where the insured, about three days before his death, changed the beneficiary in the policy with the consent of the company, the original beneficiary has no cause of -action on th-e- policy unless the insured, at the time he changed the beneficiary, was so insane that he did n-ot have capacity to enter into a contractual relation or to transact business-.</p>

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

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

<p>Railroads — Right of Way — Fences—Railroad Not Liable for Maintenance of Fence Where It Paid the Owner or His Vendor Damag&s, in the Estimation of Which the Cost of Fencing was Taken Into Consideration. — In view of sections 1792 and 1796, Kentucky Statutes, a railroad which has condemned its right of way, and paid the former owner of land damages, in the estimation of which the cost of fencing was taken into consideration, is under no obligation to contribute to the cost of maintaining such fences.</p>

<p>1. Indictment and Information — Duplicity—Demurrer—Election.— Where separate and distinct offenses are improperly joined in an indictment, the indictment is demurrable unless the Commonwealth elects which of the offenses it will prosecute.</p> <p>2. Indictment and Information — Rule as to Indictment Negativing Exception ‘Stated. — An indictment must negative exception if it is contained in the paragraph of the statute creating and describing the offense.</p> <p>3. Intoxicating Liquors — Indictment Demurrable for Failure to Negative Exceptions Contained in the Statute. — An indictment, whether charging the offense of selling, transporting or keeping for sale intoxicating liquors, in violation of Acts 1920, chapter 81, section 1, is demurrable unless it negatives the exceptions by adding the words, “for other than sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky,” or other words of similar import.</p>

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

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

<p>1. Criminal Law — Immunity.—The immunities granted a defendant in ipenal actions are limitations on section 11 of the Criminal Code, but, except as so limited, that provision is mandatory and proceedings in penal actions are regulated by the Code of Practice in civil actions.</p> <p>2. Criminal Law — New Trial. — Where the defendant in a penal action fails .to file a motion for a new trial within the time prescribed by section 342 of the Civil Code, on appeal to this court the only question that can be considered is that of whether the . pleadings authorize the judgment.</p>

<p>Appeals from Warren' Circuit Court.</p>

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

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

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

<p>1. Conspiracy — Bawdy House — Evidence.—Mere talk among a lot of young .men about going to a nearby bawdy bouse and having a good time with its inmates is no evidence oí a conspiracy to do ■injury to any of them; and the evidence fails to disclose anything from which the inference may be fairly drawn that any of the defendants, other than the one' who subsequently did the shooting, had it in mind to do any injury to any one of the inmates.</p> <p>2. Conspiracy — Evidence.—The law 'of conspiracy is largely based on the doctrine of agency upon the theory that one who procures another to do an unlawful thing is as guilty as he who actually • does it; but under the facts of this case, when one of the defendants shot the girl after taking her away from the custody of her chosen protector, he was not acting in furtherance of the conspiracy or agreement to go to the house and have a good time, but the shooting was solely the act of the one doing it, and it did not grow out of and was not committed in furtherance of •any conspiracy or agreement entered into with any of the other defendants.</p> <p>S. Conspiracy — Act of One Not in Furtherance of Agreement. — Although a lot of young men may agree to go together to a bawdy house for an unlawful purpose they should not all be held criminally responsible for the separate and distinct act of one of them which was not contemplated by any of the others and not in furtherance of their agreement.</p> <p>4. Conspiracy — Evidence.—Evidence examined and held to be insufficient to show a criminal conspiracy.</p> <p>5. Conspiracy — Accessories—Evidence.—If there was sufficient evidence of a criminal conspiracy the court should have qualified its instruction on that subject and told the jury in substance that where one of several persons who have conspired to do some other unlawful act, commits a murder, the eo-eonspirators are not criminally responsible as accessories before the fact unless the murder was committed in furtherance of the conspiracy and was the necessary, natural or probable result of its execution.</p> <p>G. Conspiracy — Evidence.—Even if the evidence showed the unlawful conspiracy to take the girl from the house for unlawful purposes, where it further shows that after this purpose had been accomplished one. of the defendants forcibly took tbe girl from the custody of the other parties or that she went with him willingly, and that he shot her without any co-operation whatsoever from any other member of the party, and that his act was a separate and distinct act not within the contemplation of the other parties when they entered into the conspiracy, he alone is responsible therefor.</p>

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

<p>Motion for a Tenporary Injunction from the' Magoffin Circuit Court.</p>

<p>1. Taxation — Intangible Property of Corporations — Assessment.— Kentucky Statutes, sections 4077-4091, inclusive, aré intended to provide a method for ascertaining the value and assessment of intangible property of corporations exercising any special or exclusive privilege or franchise in Kentucky not allowed by law to natural persons, whether the corporation be foreign or domestic; ■and all corporations exercising such á privilege are amenable to the provisions of the statute whether the .privilege be exercised in its name or in the name of another which it adopts.</p> <p>2. 'Corporations — “Doing Business.” — Mere ownership of stock in one corporation by another, though -it be of the entire stock, is not sufficient of itself to render the corporations identical or to constitute "doing business” by the holding corporation, if a foreign one, within the jurisdiction of the corporation -whose stock is held; nor will the mere maintenance by a foreign corporation of an office for the only purpose of soliciting business or traffic (if it is a carrier corporation), constitute “doing business” in the jurisdiction where the office is maintained. And the question whether the holding corporation is doing the business in the name of another is one of fact to be determined by the testimony in the case, since courts look at the substance rather than the shadow, and determine things as they are and not what they appear to be. If, therefore, the testimony shows that the business is being transacted by the holding corporation through its direct management and control, it will be held as the one- doing the 'business though nominally done in the name of another.</p> <p>3. Taxation — Railroad in Kentucky Owned by Virginia Corporation— ■Franchise Tax. — A director of the Southern Railroad Company, a Virginia corporation, -bought at decretal sale- 127 miles of railroad lines in Kentucky, and soon -thereafter transferred the .property to the Southern Railway Company in Kentucky, a corporation organized by the Virginia company, which owned all of the stock in the Kentucky company. The officers of the two companies are the same and the directors of the Kentucky company are also ■directors of the Virginia company. The latter company supplies and pays for all rolling stock needed by the Kentucky company for keeping intact -tile original amount purchased and without charge to the Kentucky company. The lines of the latter company are advertised as a part of “the Southern Railway system” 'by bulletins at all the depots on the Kentucky line, and are reported to the Interstate Commerce Commission as being merged in the lines of the Virginia company, and also reported to its ■stockholders that it owned the Kentucky lines. The receipts •from the operation of the Kentucky lines are sent to a common treasurer at Washington. Held, that the Virginia company was ■exercising the franchise and privilege referred to in section 4077 of the statutes, though in the name of the Kentucky corporation, and that it is required to make the reports required by the statute and to assess and pay Kentucky’s portion of its intangible property.</p>

<p>Insane Persons — Contracts.—Tlie contract of an imbecile is- not void but merely voidable at the option of Ms committee if it be to the disadvantage of the imbecile, but if he enter into a contract which is advantageous to Mm and of lasting benefit to his estate, a court of equity will not set thei contract aside, even at the suit of his committee.</p>

<p>1. Assault and B'attery — Evidence of Provocation Occurring Prior to Difficulty not Admissible. — On a prosecution for assault and battery, evidence that some time prior to the difficulty the prosecuting witness assaulted and abused one. of defendant’s children and punished another child in the school room, was not admissible, either in justification of the offense, or in mitigation- of the punishment.</p> <p>2. Criminal Law — 'Former Jeopardy — Former Acquittal or Conviction for_a Breach of the Peace Bar to Prosecution for Assault and Battery. — A judgment of acquittal or conviction for a breach of the peace, unless obtained by fraud or collusion, is a bar to a subsequent prosecution for assault and battery.</p> <p>3. Criminal Law — Plea of Former Jeopardy — Burden of Proof.' — ■ Under a plea of former jeopardy, the burden was on defendant to show a conviction of the identical offense, and the burden was on the Commonwealth to show collusion on the part of defendant in obtaining such conviction in justice’s court.</p> <p>4. Criminal Law — Former Jeopardy — Collusive Prosecution — Sufficiency of Evidence to Show Collusion. — Where, on a trial for assault and battery, the defendant testified that a warrant had been issued, without his procurement, charging him with the offense of a breach of the peace, growing out of the same acts for which he was being tried, and that he submitted to the jurisdiction of the court, pleaded guilty and was fined one' dollar, and offered in evidence a certified copy of the judgment of conviction, the fact that neither the prosecuting witness nor his father procured the warrant to-be issued, or was present at the trial, was not sufficient to show that the judgment was obtained by collusion, as -the warrant might have b.een issued by the county .attorney or some member of the public interested in the enforcement of the law, ■and both the county attorney and the prosecuting witness may have been afforded an opportunity to be present at the trial, but failed to attend.</p> <p>5. Criminal Law — Appeal and Error — Former Conviction. — Where, on a prosecution for assault and battery, the Commonwealth failed to show that a former judgment, convicting the defendant of a 'breach of -the peace, was obtained by collusion, the trial court should have admitted in evidence the certified copy of the judgment of conviction, and have sustained the plea of former conviction.</p>

<p>1. Municipal Corporations — Automobiles—Owner of Automobile Not Liable for Negligence .of Person 'Wliom He Permits to Use It.— Ordinarily one who owns or controls an automobile is not liable for the negligence of a person whom he permits to use it. Whether a different rule applies where the owner knowingly suffers or permits the automobile to be operated by an infant in violation of section 2739g-30, vol. 3, Kentucky Statutes, is not decided.</p> <p>2. Pleading — Negativing Exceptions — Proof.—Where the exceptions are included in the paragraph of the statute creating the offense, they must each be negatived by allegation and sustained -by proof if the allegation is denied.</p> <p>3. 'Municipal Corporations — «Automobiles—«Operation «by Infant in Violation of Statute — 'Sufficiency of Evidence. — «Where, in an action for personal injuries, based on the theory that the owner of the automobile which caused the injuries knowingly .suffered and permitted an infant to operate the machine, in violation of the statute, there was no evidence that the infant was unaccompanied by some person over the age« of twenty-one years, who accompanied him with the consent of his father, mother or guardian, the evidence Was insufficient to show that the machine was being operated ■in violation of the «statute.</p> <p>4. Master and Servant — Liability—Son—Family Purpose Doctrine — • Liability of Father. — The “family purpose doctrine” prevails in this state and is to the effect that the owner of an automobile, which was purchased and maintained for the pleasure of his family, is liable for injuries inflicted by the machine while it was being used by the members of his own family tor their own purposes, on the -theory that the machine' was being used for the purpose for which it was kept, and that the person operating it was therefore acting as the owner’s agent or servant in using it.</p> <p>5. Master and Servant — Automobile—Family Purpose Doctrine.— Son — «Liability of Father — Sufficiency of Evidence. — Evidence that the machine causing an injury was owned by the« light company and was sometimes driven by the infant son of the general manager, but for what purpose it does not appear, is not sufficient to bring the case within the “family purpose doctrine.”</p>

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

<p>1. Appeal and Error — Transcript—Omitted Pleading — Presumption. —Where on an appeal the transcript oí the record from the lower court fails to contain a pleading that was filed in that court, the presence of which in the record appears to the appellate court material to a proper understanding of the grounds upon which the judgment appealed from was based, it, ordinarily, will indulge the presumption that the omitted pleading authorized or would support the judgment. But this rule will not be applied ■where, notwithstanding the absence from the record of such pleading, for other reasons sufficiently presented by the record, the judgment should be reversed.</p> <p>2. Partition — Pleading—Appeal and Error. — Where in an action 'seeking a partition or sale of real estate jointly owned, some of the joint owners are demanding its division and others its sale and a division of the proceeds, and it is apparent from the pleading and exhibits that the question whether its division or sale would be most advantageous, to the parties in interest cannot be justly determined in the absence of proof, the court should require of the parties proof on -that issue, and its failure to do so will, on appeal, he held reversible error.</p>

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

<p>1. Master and Servant — Negligence—Parties.—An employe, who is injured through the negligence of the company while he is at work in a coal mine, cannot maintain an action nor have a recovery against another corporation, which was not in any wise connected with the operating company, even though the latter company at a subsequent day purchase and take over all the property of the original company, -if in doing so there was no fraud practiced and the transfer of the property was not for the purpose ■of -avoiding the obligations or liabilities of the original company.</p> <p>2. Master and Servant — Purchasing Corporation — Equitable Action. —The cause of action of one negligently injured in a mine operated by a corporation exists and can be prosecuted against that company only, in the- absence of fraud or bad faith on the part of a subsequent purchasing corporation; but after reducing his cause to judgment -against the original company the plaintiff may have an equitable action against the purchasing corporation for the purpose of discovering and subjecting any property or debts owing to the selling corporation, and if the new or purchasing corporation is but a reorganization of the old corporation, or the new corporation has been guilty of bad faith with respect to the plaintiff’s claim -against the old company, he may have relief against the new corporation.</p>

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

<p>1. Deeds — Construction.—In interpreting a deed, if from the whole instrument it is shown or may he fairly inferred that certain words or expressions therein were used in any particular sense or should he interpreted to mean any particular thing, then that purpose will he effectuated and the instrument construed to mean what the parties intended without regard to the technical interpretation of the language used.</p> <p>2. Deeds — Construction.—But if there is nothing in the instrument as a whole which shows the words were used in any particular ■sense or were intended hy the parties to have any certain meaning, then they will he interpreted in their technical sense and given the meaning which it must he presumed the parties intended.</p> <p>3. Deeds — Construction.—In a conveyance hy a father and mother to their danghter where the consideration is recited as “love and affection” and that the property conveyed to the child is to he accepted as her entire interest in the estate of her father, such recital is evidential of a purpose to convey the fee simple to the daughter.</p> <p>4. Deeds — Construction.—The use in the instrument of the words “parties of the second part” at one place and the words “party of the second part, their heirs and assigns” at other places in the instrument, shed no controlling light upon the sense in which other language therein used should he interpreted.</p> <p>5. Deeds. — A conveyance hy a father and mother to their daughter and the “offsprings of her body” is the creation of an estate tail and under our statute, which converts the same into a fee simple, the daughter took the fee simple title.</p> <p>6. Deeds — Construction.—The word “offspring” as used in the instrument is synonymous with “issue,” “progeny” or “lineal descendants,” even to the remotest degree.</p> <p>7. Deeds — 'Offspring.—The words “offspring” or “issue” .while they include “heirs” and “heirs of the body,” are much more comprehensive terms, and embrace a much larger class.</p>

<p>1. Criminal Law — Commission of Other Crimes. — The commission of other crimes by the defendant, even though of the same sort, should not be inquired into, unless it is necessary, because, of the peculiar circumstances, to establish identity, criminal knowledge, intent or motive of the accused or be inseparably interwoven with relevant evidence of the crime charged or the independent offenses were perpetrated to conceal or enable the accused to commit the one charged.</p> <p>2. Intoxicating Liquors — Evidence—Competency.—Evidence of other sales of liquor in defendant’s restaurant, but not by him or in his presence or with his knowledge or consent, held incompetent as corroborative of the Commonwealth’s direct evidence of such a sale by the defendant or to show a system of criminal action or to contradict defendant’s testimony that he had not sold or permitted any one to sell whiskey in his restaurant.</p> <p>3. Criminal Law — Instructions.—An instruction directing attention of the jurors to incompetent evidence and advising them that it was of value in determining defendant’s guilt necessarily prejudicial.</p>

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

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

<p>1. Statutes — Subjects and Titles of Acts — Amendments.—The provision of section 51 of the Constitution, which provides that an act of the legislature shall have but one subject and that shall he expressed in the title,- and the enforcement of which renders invalid, the contents of the act, which are not germane to the subject, expressed in the title, applies to an amendatory act, the same as to an original act.-</p> <p>2. . Statutes — Subjects and Titles of Acts. — An act, the subject of which is an amendment of a specified act and its re-enactment in the amended form, without further description of the contents of the act, is restricted by its title to dealing with the subject or branch of a general subject and provisions which are germane thereto, which are dealt with in the original act.</p> <p>3. Statutes — Subjects and Titles of Acts. — Section 1136a, Kentucky Statutes, is not invalid,, as being not covered by and germane to tbe title of the act of 1916, which was entitled, “An act to repeal and re-enact chapter 19, Session Acts, 1914, which was an act relating to the trial and punishment of persons convicted of a felony or misdemeanor.”</p> <p>4. Statutes — Amendments.—A provision of an amendatory act, which is germane to its title, works a repeal of the provision of a previously existing statute, which is repugnant to the one contained in the amendatory act, although the previously existing statute is not mentioned in the title nor body of the amendatory act.</p> <p>5. Statutes — Subjects and Titles of Acts. — Whatever is naturally connected with and not foreign to the subject of an act, expressed in its title, is germane thereto.</p> <p>6. Prisons — Discretion of Board to Allow Credit Upon Sentence. — A rule adopted by the Board of Charities and Corrections, under section 1136a, Kentucky Statutes, which allows a felon seven days’ credit upon his sentence, for each month, for the first year ■of his term, eight days for each month during the second year of his term, and ten days for each month of the third and succeeding years of his sentence, for good conduct, is not arbitrary or unreasonable and is not an abuse of discretion -on the part of the board, in its administration of the statute.</p> <p>7. Prisons — Credit of Prisoners for Good Conduct — Under section 1136a, Kentucky Statutes, the amount of credit to be allowed a felon, for each month of his term, for good conduct, is a matter to be determined by the Board of Charities and Corrections in accordance with rules to be adopted by them, but the credit can not exceed ten days in each month.</p> <p>8. Prisons — Credit of Prisoners for Good Conduct. — Under section 1136a, Kentucky Statutes, the credit to be allowed a felon upon his sentence, is determined by the Board of Charities and Corrections from the conduct of the prisoner, and hence the credit for behavior to be allowed a prisoner, will be after the prisoner has earned the credit by being of good conduct for the period of the the month.</p>

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

<p>Schools and School Districts — School Improvement Bonds. — School improvement bonds, issued under the authority of section 3235a-28, Kentucky Statutes, which, is section 28, of -the Acts of 1912, as amended by chapter 57 -of the Acts of 1916, -applying 'to cities of the second -class, are obligations of the -city, and should be executed by -the proper officials of the -city.</p>

<p>1. Negligence — Presumptions and Evidence. — Negligence will not be (presumed from tbe mere occurrence of an accident resulting -in injury, but must be established by evidence of tbe fact, or by -circumstances evidentially shown from which the fact reasonably may be inferred.</p> <p>2. Negligence — Actions for Personal Injuries. — -In an action to re; cover damages for a -bodily injury, alleged to have been caused -by the negligence of the defendant, there must be some evidence to •show such' negligence and that it was the 'Proximate cause of the injury. Recovery cannot be had on mere surmise or speculation as to how or why the accident occurred'. Between the negligen-ce and injury there must be a direct connection; and while -this may be shown by indirect evidence, it cannot be established by building inference upon inference.</p> <p>3. Negligence — Evidence—Submission to Jury. — When the question is -one -of negligence or no negligence, it is well settled law that where -the evidence is equally consistent with either view, the existence or non-existence of negligence, the -court should not submit the case to the jury, for the party affirming the negligence has failed.to prove it.</p>

<p>1. Bastards — -Legitimation—What Must be Proved to Show Legitimation. — Under Kentucky Statutes, section 1398, providing that if a •man, having a child -by a woman, shall afterwards marry her, such child, if recognized by him before or after the marriage, shall be deemed legitimate, -it is necessary to show that the child was begotten by the decedent, that he afterwards married the child’s -mother and that he recognized -the child -as his -own.</p> <p>2. Bastards — ¡Legitimation—Marriage of Parents — Statute Applies to Marriage Contracted to Avoid Criminal -Prosecution for Seduction. —Kentucky Statutes, section 1398, applies to- a marriage contracted to avoid a criminal prosecution for .seduction, as authorized by section 1214, -Kentucky -Statutes.</p> <p>3. Bastards — Legitimation—¡Finding of Chancellor — Sufficiency -of Evidence. — 'In an action involving legitimation of -a child -under Kentucky Statutes, section 139>8, evidence hel-d to sustain -the finding of the chancellor that the child was begotten and recognized by 'the reputed father.</p>

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

<p>1. Frauds, Statute of — -Contracts for Sale of Real Property — A contract for -the -sale of real property must be in writing signed by the vendor, who is the party to be charged.</p> <p>2. Frauds, Statute of — Verbal Contract for Sale of Land. — A verbal ■contract for tbe .sale of land is not absolutely void, but is merely unenforci-ble.</p> <p>3. Specific Performance — Description.—The description of the land it-o be conveyed must be sufficiently definite to enable the chancellor, without the aid of parol evidence, to decree .specific performance.</p> <p>4. Frauds, Statute of — Requisites and Sufficiency of Writing. — A receipt -which reads: “Received of D. M. C. fifty ($50.00) dollars and no/100 for payment -on lot,” -signed -by tbe seller, is .not a sufficient writing to take a contract- for the sale -of land out of the -statute -of frauds.</p> <p>5. Frauds, -Statute of — Pleading.—Although -the owner of the -land admit in -his answer that he entered into -a verbal contract with the plaintiff to sell him a certain lot of -land, he may, nevertheless, successfully plead and rely upon the statute of .frauds and perjuries.</p>

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

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

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

<p>1. Appeal and Error — Absence of Bill of Exceptions — Pleading,—In the absence of a bill of exceptions showing what testimony was ( introduced on the trial in the circuit court, the only question for decision in this court is that of whether the pleadings support the judgment.</p> <p>2. Appeal and Error — Pleading—Amendments.—Even if it was error ■for 'the trial court to permit an amended answer to be filed, that error cannot be considered prejudicial on this appeal, in view of the fact that from the record as made up it cannot he ascertained whether any testimony was introduced in support of the allegations of the amendment.</p>

<p>1. Reformation of Instruments — Grounds for Reformation. — In a suit by the grantee to reform a deed by correcting an admittedly erroneous description of tbe land it should have been reformed so as to describe the entire boundary which 'the grantor intended to sell and the grantee agreed to buy, rather than only such portion thereof as was found, after the grantee had accepted the deed and taken possession of such boundary, to be included within the boundary as incorrectly described in a remote deed under which grantor claimed title thereto.'</p> <p>2. Vendor and Purchaser — Quantity of Land and Appurtenances.— Where the sale was in gross and not by the acre no recovery Will be allowed for a shortage of less that ten per cent.</p>

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

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

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

<p>1. Quieting Title — Title of Plaintiff. — The suit filed by plaintiff construed' to be an action to quiet title to land and not a suit to enjoin a trespass.</p> <p>2. Quieting Title — -Title of Plain-tiff. — In a suit to quiet title to land •the plaintiff must recover on the strength of his title, and not on the weakness of defendant’s title, but is permitted to show title in himself by adverse possession for the requisite length of time.</p> <p>3. Adverse Possession — Boundaries.—To establish, title by adverse possession to unenclosed woodland, tlie claimant must show a continuous adverse possession and claim to a well defined boundary and the claim must be so notorious as to amount to constructive notice of its adverseness.</p> <p>4. Adverse Possession — Evidence.—Evidence examined and held to be insufficient.to establish title by adverse possession in plaintiffs or their grantors or to Warrant the relief sought in the petition.</p>

<p>1. Criminal Law — 'Indictment and Information — 'Misjoinder—Election. —When two or more offenses are charged in 'one indictment a demurrer will lie to correct the misjoinder, which should he sustained hy the trial court and the 'Commonwealth required to elect for which of the offenses charged it will prosecute-the defendant. But where, as in this- case, following the filing of the demurrer and before it could .be acted upon by the court, the Commonwealth made such election, the subsequent oyerruling of the demurrer hy the court, was not error.</p> <p>2. Intoxicating Liquors — Searches and Seizures — Evidence.—¡Where upon his trial under an indictment charging the offense of unlawfully manufacturing whiskey, the evidence was to the effect that the appellant was discovered hy a peace officer and posse ■taking part in the operation of a “moonshine” distilling plant, hy which such liquor was then being manufactured, the refusal of ■the trial court to exclude, on the appellant’s motibn, this evidence as incompetent on the ground .that the officer and posse were not in possession of a warrant authorizing a search for or seizure of the distilling plant, was not error.</p> <p>3. Intoxicating Liquors — .Searches and Seizures. — As the appellant did not own, or as tenant occupy, the land on which the still, appliances and whiskey seized were found, and the property was situated in the woods and not in a building or inclosure requiring the breaking of a door or removal of obstructions to discover it, and appellant’s participation in the operation of the still occurred ■in the presence of the officer and posse, the latter had the right to seize .the property and .arrest appellant without a search warrant nr other process. Consequently neitlier their seizure of the property nor the proof of the facts connected therewith, furnished toy them on appellant’s trial, came within any inhibition of section 10, Bill of Rights, Kentucky Constitution, or similar provision of the Federal Constitution.</p> <p>4. Criminal Law — Trial—Instructions.—‘The appellants cannot complain of an instruction which erroneously authorized the jury, if they found him guilty, to inflict upon him punishment prescribed hy a statute other than .that under which he was indicted where, as in this case, the .punishment inflicted hy the verdict was less than the minimum of that provided hy the statute under which he was indicted.</p>

<p>1. Specific, Performance — Limitation Over — Forfeitures—Consideration for 'Conveyance. — Limitation uipon the use of property devised or donated w-ill generally create a forfeiture if it is violated, followed by a reverter of title to the donor or his successors in title, but such consequences do not follow when there is a valuable consideration for the conveyance, in which case the limitation upon the use will be construed as a covenant and not as a condition subsequent, unless the language creating it is so clear as to admit of no other reasonable construction than the creation-of a condition subsequent.</p> <p>2. Adverse Possession — Property Limited to Adverse Use. — When ■property held under a title limiting its use is devoted to an entirely different purpose the use immediately becomes adverse ■to the limited one and a right of action therefor at once accrues to those who may be interested in the enforcement of the limited use; therefore, if the adverse use continues for the statutory period of limitations the right to proceed therefor is barred.</p> <p>3. Specific Performance — Adverse Possession. — Defendant in an action to enforce specific performance can not be made to accept a doubtful or an encumbered title, but in the absence of stipulations to the contrary he may be made to accept a title acquired exclusively by adverse possession.</p> <p>4. Specific Performance — Adverse 'Claimants — Parties.—In actions for specific performance it is competent for the plaintiff to make adverse claimants to the title of the property defendants in the suit and to thereby perfect his title Which, if done, entitles him to an enforcement of his contract.</p> <p>5. Limitation oí Actions — Action for Breach of Broken Covenant.— The right of action for a 'breach of a broken covenant is not, under the provisions of section 2526 of the Kentucky Statutes, barred until the expiration of the full period of limitation after the removal of the disability of plaintiff, which existed at the time of the breach, and such an action is not one governed by the provisions of 2506 of the statutes, which is one exclusively for the recovery of real property and which would apply if the stipulation was a condition subsequent and not a covenant.</p>

<p>1. Intoxicating Liquors — Indictment and Information — Exceptions.— The use of the conjunctive “and” instead of the disjunctive “or” ■used in the statute does not sufficiently negative the exceptions in the statute of 1920 in an indictment charging one with having in his possession spirituous liquors for sale.</p> <p>2. Criminal Law — Indictment and Information — Exception—Demurrer. — 'But after trial, verdict and judgment and it appears that the defendant’s defense was not in any sense a reliance upon any of the exceptions in the statute, under the provisions of subsection 2 of section 122 of the Criminal .Code, the overruling of the demurrer was not prejudicial error.</p> <p>3. Intoxicating Liquors — Evidence.—In such cases a jury is not compelled to accept the statement of defendant as to .his purpose in having the liquor in his possession, but may consider such legitimate facts and circumstances as may be adduced in evidence.</p>

<p>1. Libel and 'Slander — Joinder of Actions. — Two or more causes of action for libel or «lander may be joined in a single petition, if published or spoken of or-concerning the plaintiff by the defendant; and this is true though the words constituting each libel or slander be the same. But to give the plaintiff a right of action as to each libel or slander, the words of each must have been published or spoken by the defendant on a distinct and separate occasion.</p> <p>2. Libel and .Slander — 'Malice—Presumptions.—Where the words are slanderous per se, malice on the part of the speaker will, as a matter of law, be presumed from the mere speaking of them; evidence of the circumstances attending the speaking being admissible to show the motive or animus of the speaker, and, also, the injury and damages thereby resulting to the feelings and reputation of the plaintiff.</p> <p>3. Appeal and Error — Admonition—Exception.—In legal procedure and meaning an “admonition” is any authoritative oral communication or statement, by way of advice or caution, made by the court to the jury during the trial of a case respecting their duty or conduct as jurors, the abmissibility or non-admissibility of evidence offered by the parties, or the purpose, if competent only for a particular purpose; for which any of that admitted might or should be considered by them. But on the appeal of a case, in order for the appellant to rely upon any error contained in an admonition of the court below to the jury, for a reversal of the judgment of that court, it must appear from the record that he at the time objected and entered an exception to same; and, also, thát the alleged error was set forth and relied on in the grounds for a new trial.</p>

<p>1. Robbery — Evidence—Instructions.—Upon tbe trial of -appellant for robbery, -while the form of tbe instruction is subject to some criticism, appellant defended upon the ground that be was not ¡present at "the place of the r-obbery. The .preponderance of the evidence being against him he was not prejudiced by the form of the instruction even if it were erroneous.</p> <p>2. Criminal Law — Accessory After the Fact — Evidence.—Although a witness in a trial for robbery may have been guilty in connec- • tion with the biding of tbe stolen property, yet be was competent witness for tbe prosecution under tbe rule which allows a conviction, without corroboration, on the evidence of' an accessory after the fact.</p> <p>3. 'Criminal Law — Instructions.—Every instruction given must be predicated upon an issue- sustained by tbe evidence.</p> <p>4. Criminal Law — Directing Verdict. — Tbe motion for a directed verdict was properly overruled as it appears tbe jury was fully justified under tbe evidence in arriving at defendant’s guilt.</p>

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

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

<p>1. Domicile — Question of Fact and Intention. — Tbe question of legal residence is one of fact and intention. The residence need not 'be continuous or for tbe greater part of tbe time, but there must 'be an abiding place with an intention of constituting a legal residence before it can be fixed as such.</p> <p>2. Domicile — Intention.—The fact of a legal residence cannot be inferred from an intention however expressed. But the intention may be inferred from the fact in the face of a contrarily expressed purpose.</p> <p>3. Domicile — 'Evidence—'Finding o£ 'Chancellor. — Evidence examined and held to warrant the finding that for the years 1911 to 1914 inclusive, the testator was legally domiciled in Lexington, Kentucky.</p> <p>4. Taxation — Omitted Property. — In a suit of a city of the second class to collect back taxes the allegation that “other notes” were omitted from assessment is sufficiently definite under section 3187 of Kentucky Statutes, the Act of March 18, 1912, being inapplicable as it relates solely to revenue agents and sheriffs.</p> <p>5. Taxation — Omitted Property — Pleading.— The motion to make more definite a petition alleging that “other notes” were omitted from assessment should not have' been sustained, in the absence of a showing on the part of the defendant that she could not obtain the information which she sought to compel the plaintiff to furnish or that it was necessary to enable her to defend 'the suit.</p> <p>6. Appeal and Error — Cross Appeal — A cross appeal is not allowable under section 755 of the Civil Code from a judgment on a distinct cause of action, stated in a separate paragraph from other causes of action included in the petition from the judgment on which the original appeal is prosecuted.</p>

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

<p>1. 'Contracts — 'Contract of Sale. — 'A written offer to purchase property accepted by the owner in writing constitutes a contract of sale, and is not invalid on the ground that it is lacking in mutuality of obligation.</p> <p>.2. Schools and School Districts — 'Contracts—Acceptance of Offer to Purchase Property. — The formal acceptance of an offer to purchase by orders entered on the records of the board of education and knowledge thereof on the part of the one making the offer, with the giving of written notice of acceptance later, completes the contract.</p> <p>3. iSchools and School Districts — 'Contracts—Acceptance.—Where there is a written offer to purchase a lot and school building and an acceptance of the offer by the board of education by a formal order entered on its records, the purchaser cannot avoid the contract on the ground that the purchase included the furnishings of the school building.</p> <p>4. Schools and School Districts — Evidence.—Evidence examined and ■held to warrant the finding of the jury that the contract of sale did not include the furniture in the school building sold.</p>

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

<p>1. 'Criminal Law — Venue.—.Direct evidence .of venue in a criminal case is not necessary, but this like any other fact may be established by proof of facts and circumstances from which it may be inferred.</p> <p>2. Robbery — Venue.—Evidence merely that a robbery was committed at a named private residence and of its distance from other private residences is not proof of facts from which venue may be inferred, since it can not reasonably be presumed that the jurors will know whether or not the residences of private citizens are in or out of the county.</p> <p>3. Robbery — Presumptions—Judicial Notice. — .Although such a presumption is reasonable with reference to a place of local prominence it is not reasonable with reference to a private residence shown to be about nine miles east or southeast thereof, since it is not presumed that the trial court and jurors know the exact location with reference to the county lines of places of merely local prominence and of Which- this court does not take judicial notice.</p>

<p>1. 'Trial — Instructions.'—Tibe court did not err in refusing to give an offered instruction concretely presenting defendant’s affirmative. defenses where the instructions given presented such defenses as clearly and more favorably than the offered instructions.</p> <p>2. 'Contracts — Evidence.—Evidence of the execution of other contracts than the one sued on during the negotiations leading up to ■and following its execution held competent to show for whom the person was acting who conducted the negotiations for and executed the several contracts with different parties where it was' shown that all of such transactions were inseparably connected with and but different parts of one entire transaction conducted by such party at the instance of and for the benefit of defendants.</p>

<p>1. iDivoree — -Restoration of Property. — -Sections 2120 of tbe statutes and 425 of the Civil Code of Practice require that under proper application made therefor all property acquired by either spouse in consideration or by reason of the marriage to be restored to the one from whom it was acquired upon the granting of a divorce, but no such restoration is required when the property was acquired, not in consideration or by reason of the marriage, but for a valuable consideration.</p> <p>2. Divorce — -Restoration of Property. — Before the passage of sections 2127 and 2128, parts of what is 'known as -the “Weissinger Act,” a husband was entitled to collect and appropriate the rents of -his wife’s general real estate and -to reduce to possession, and appropriate the general personal property, but such marital rights could be waived by the husband by his .election to hold such general property of his wife as her trustee, and any conveyance or transfer of property made by him during the marriage in settlement of her equitable title to the property so held by him as such trustee would not be acquired by the wife in consideration or by reason of the marriage, but on the contrary would be acquired by her for a valuable consideration and the husband would not be entitled to have it restored to him upon obtaining a divorce from her.</p> <p>3. Divorce — Restoration of Property. — Where the judgment allowed the wife to retain all the property held by her which the proof clearly shows she acquired for a valuable consideration and Which was not subject to be restored, and in addition thereto bank stock to the value of $2,500.00 and the evidence leaves it doubtful whether it was acquired in consideration or by reason of the marriage, or for a valuable consideration, and all the property so allowed to her equals half of the combined property of both husband and wife, the court properly refused to állow the latter any additional sum to be paid by the husband out of the portion allotted to him.</p> <p>4. Divorce — Attorney’s Pees. — Under the provisions of section 900 of the statutes it is proper for the husband to pay as a part of the cost a reasonable attorney fee to his wife in all cases where she is not in fault, although she may have ample property of her own.</p>

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

<p>1. Homicide — Eye-Witness—Dying Declarations. — An eye-witness to a homicide or to a part of the occurrences at such homicide may testify on the trial to what he actually saw, and at the same time to a dying declaration of an injured person.</p> <p>2. Homicide — Dying Declarations. — A statement by the injured person that .he could live if he could just get his breath, made in connection with his statement that he was shot and could not get well, furnishes no evidence of hope upon his part that he could get Well.</p> <p>3. Homicide — Dying Declarations. — A statement by a witness that the injured person said: “He shot me for nothing,” but which fails to relate anything the. decedent said as to the manner in which the injuries were inflicted, or the facts and circumstances leading up to their infliction, is incompetent.</p> <p>4. Homicide — Dying Declarations. — It is a rule of evidence that matters contained in a dying declaration are competent only if they would be competent coming from a living witness, and such a statement by the decedent unaccompanied by a statement of the facts and circumstances leading up to the difficulty is a mere expression of opinion and therefore incompetent.</p> <p>5. Homicide — Dying Declarations. — Such evidence being merely an expression of opinion by the decedent, but strongly corroborative of What another witness had testified to with reference to the decedent’s statement of facts as to how the difficulty occurred, but which is contradicted by other evidence, must be held prejudicial.</p>

<p>1. Pleading — Defect of Parties. — A defect of parties to the action apparent upon a petition must be raised by a special demurrer; if the defect of parties does not appear from the petition, it must be presented by an answer. If the question is not raised in either way the defect is waived.</p> <p>2. Carriers — Conversion—Rule of Liability. — At the -common law, a common carrier could receive 'goods for -transportation from any person, who was in possession of them and apparently wit-h authority to cause them to be shipped, and -if then, in accordance with the directions of the consignor the carrier delivered them to the consignee, in good faith and without notice or knowledge of the claim of a third party, the-carrier was not liable as for a conversion, to the true owner, but, the rule of liability was changed by act of March 8, 1920, Session Acts, 1920, chapter 23, -as relates to pipe line companies transporting oil as common carriers.</p>

<p>1. Insurance — Theft Insurance — Notice—Sufficiency—Question for Jury. — Under a policy insuring against the theft of an automobile and requiring notice of the loss to be given forthwith, the word, “forthwith,” means within a reasonable time, and unless the lapse of time is so long as to be obviously a non-compliance with the contract, the question whether the notice was given within a reasonable time is one for the jury.</p> <p>2. Insurance — Theft Insurance — Notice—'Sufficiency—Question for Jury. — Where an automobile was stolen on the night of June 13, 1919, and written notice of the loss was mailed on June 17-th and received by the insurance company on June 18th, it cannot be said, as a matter of law that the notice was not given within a reasonable time.</p>

<p>1.' Appeal and Error — Carriers—Damages—Instructions.—Where, in an action against the Director General of Railroads for injury to a car load of corn, it appeared that the corn was delivered to a purchaser who, after unloading three-fourths of it, discovered that the remaining one-fourth was in bad condition and then reloaded the com, but there was nothing to show that the purchaser or those who subsequently handled the corn were negligent or added to the injury in any way, an instruction on the measure of damages was not erroneous in failing to direct the attention of the jury to that part of the corn which was in fact injured when the car reached the purchaser.</p> <p>2. Carriers — Action for Damages — Trial—Instructions.—An instruction in an action against the Director General of Railroads for damages to shipment of corn, fixing the measure of damages at the difference between the fair and reasonable market value of the corn in clean condition at. the time and place of delivery and its fair and reasonable market value at the same time and place in the condition in which, it was delivered, is not subject to complaint that it authorized special damages.</p> <p>3. Appeal and error — 'Carriers—Director General of Railroads — Carrier Against Whom no Judgment was Rendered Not Prejudiced by Refusal of Peremptory Instruction. — A carrier, against whom no judgment was rendered in an action for damages against the Director General of Railroads, was not prejudiced by the refusal of the court to sustain its motion for a peremptory instruction.</p> <p>4. Carriers — Carriage of Goods — Liability of 'Carrier — Peremptory Instruction. — In an action against the Director General of Railroads for damages to a shipment of corn the defendant was not entitled to a peremptory instruction on the ground that the shipper selected the car, and that the carrier was not therefore responsible for its insufficiency, where the car was not selected by the shipper and all the evidence tended to show that the car was clean and in. good condition when loaded.</p>

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

<p>1. Wills — Devise—'Construction.—The law looks with favor upon the vesting of estates and with disfavor upon indefinite failure of issue. So universal is the observance of that doctrine in this jurisdiction, that in many of the cases enforcing it the Court of Appeals has declared that where it is reasonably possible to so construe the terms of a devise as to give the devisee an estate in fee simple rather than a defeasible fee, that construction will be adopted.</p> <p>2. Wills — Dying Without Issue. — Where an estate is devised to one for life, with remainder to another, and, if the remainderman die without children or issue, then to a third person, the rule is that the words “dying without children,” or “without issue,” are restricted to the death of the remainderman before the termination of the particular estate; and as the devise construed in this case was, by the judgment of the chancellor, properly held to fall within this rule, it is affirmed.</p>

<p>1. Boundaries. — Where there is a good faith controversy between adjoining landowners as to the correct location of the dividing line between their lands, and they enter into a verbal agreement locating the disputed line, and each party to the dispute takes possession of the land on his side of the line, such line will be regarded as the true line in any subsequent litigation between the same parties -or -their successors in title.</p> <p>2. Appeal and Error — -Finding of Chancellor. — Where the evidence- is ■conflicting th-e judgment of the -chancellor will be upheld if it be sustained -by any evidence, unless it be against the weight thereof.</p> <p>3. Judgment — Ambiguity—’Correcting Judgment. — An ambiguous . judgment entered in the circuit court will be corrected so as to malee its purpose and intention clear.</p>

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

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

<p>1. Sales — Inspection.—Where the seller by written contract agreed to accept the inspection of the staves delivered under the contract to be made .by the parties to whom the purchaser might resell same, such agreed upon inspection when properly established will prevail over an independent inspection made by • the seller before shipment in the absence of proof by the seller of fraud or mistake in the agreed upon inspection; and the mere fact alone, that the two inspections do not agree is not satisfactory or convincing proof of such fraud, or mistake.</p> <p>2. Contracts — Separate Actions — ’Consolidation—Reference to Commissioner. — 'Where both parties in two separate actions sought an adjustment of their complicated accounts under two independent contracts, and, in their evidence, after consolidation of the cases, included like items not covered by either contract sued on in such a way the commissioner to whom the evidence was referred could not separate such items from those covered by the contracts sued upon, the inclusion of such items in hite report, gven though the totals thus ascertained were in some instances in excess of those stated in the petitions, 'hut not as stated in the reply, does not afford reason for reversal where the debts-and credits were correspondingly increased, and 'the net amount found to be due the plaintiff doe's not exceed the amount for which he asked judgment.</p> <p>3. Judgment — Pleading.—The allowance of an item not claimed by the plaintiff in his pleading was error.</p>

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

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

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

<p>1. Bills and Notes — Want of Consideration — Burden of Proof. — The •burden is upon the defendant in a suit on a note to prove want of consideration and false and fraudulent representations alleged to have been made to procure the execution of the note., and, although ■the alleged representations may be proven, if there is a want of proof as to their falsity 'the defense will fail.</p> <p>2. Appeal and Error — Finding of Chancellor. — ‘The judgment of the chancellor on an issue of fact will not be disturbed unless this court is convinced that his finding is contrary to the evidence even though we should be in doubt ,a)s to the truth of the matter.</p>

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

<p>1. Appeal and Error — Matter -of -Grace. — An appeal from a judgment of the court of original jurisdiction 'to another tribunal is a matter of grace, granted by the legislature, and, if a party would take advantage of it, he must comply with the conditions upon which the right to appeal is granted.</p> <p>2. Forcible Entry an-d Detainer — Traverse and Traverse Bond. — When a finding is -made upon an inquest of forcible -detainer, the filing -of a traverse and the execution of a traverse bond, -within -three-days from -the finding, is necessary to -give the circuit count jurisdiction to review the inquest.</p>

<p>Carriers — Railroad Company Under Federal Control not Liable for Failure to Furnish Cars. — A railroad company under Federal control is not liable in damages for a failure -to furnish a coal company a sufficient number of cars to accommodate its business.</p>

<p>1. Criminal Law — 'Principals and Aiders and Abettors — Indictment— Trial. — Tbe principal and tbe aider and abettor may -be indicted or tried jointly or separately.</p> <p>2. Criminal Law — -Aiders and Abettors — -Acquittal, of Principal or ■Conviction of Misdemeanor. — An aider and abettor in the commission of a felony may be convicted of the felony at a subsequent term of court, though the principal was tried at a former term and was either acquitted -of the crime -charged or convicted of a misdemeanor only.</p> <p>3. Criminal Law — Principals—Aiders and Abettors — Evidence.—Proof o-f the trial of a principal and his acquittal or conviction of a misdemeanor only is not admissible on the trial of the aider and abettor.</p> <p>4. -Criminal Law — Credibility of Witnesses — Oour-t not Bound to Hold ■Statements of defendant an-d his witnesses to -be- True. — As the credibility of witnesses is for the jury, the court was not -bound to hold as a matter of law that the statements of defendant and his ■witnesses were true, especially in view of the fact that they were contradicted as to'other material issues by the witnesses for the Commonwealth.</p> <p>5. Criminal Law — Aider and Abettor — -Sufficiency of Evidence. — Evidence in a prosecution for aiding and abetting in the malicious shooting of another, with -intent to -kill, -held sufficient to take the ■case to the jury and sustain the verdict of guilty.</p>

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

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

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

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

<p>1. Wills — Intention of Testator. — Where it is patent from ail the provisions of a -will that it was the intention of the -testator to provide -his unmarried daughters, while single, with a home upon and support from a tract of land during the- continuance of a life estate devised his widow therein, and that after the -death of the latter, such right should continue in the daughters so long as -they remained unmarried, but that upon .the marriage of all of the ■ daughters the land should be' divided equally among all of his children, the fact that the only -one -of the daughters remaining unmarried, after -residing upon the land several years following the death of the widow, as a means of support rented it to a ten» ant and removed to the nearby home of her brother, did nqi; deprive her of £he right, conferred by the will of the father, to § support from the land or to retain possession of the land toy her tenant as a means to that end.</p> <p>2. Wills — Contingent Estate. — There is but one contingency the happening of which, under the will of the father, would deprive the daughter of the right to retain as a home or for her maintenance the land devised, viz.: the marriage of the daughter,</p>

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

<p>1. ¡Rape — ¡Carnal Knowledge — Instructions.—'Tile offense of carnally knowing a female under the ago of sixteen years, as denounced toy .section 1155 of the statutes, is a degree of and a lesser offense than carnally knowing a female above twelve years 'of age against ,¡ker will or 'Consent or toy force, as denounced toy section 1154 of ¡the statutes, and wtoere ¡the evidence 'Conclusively shows tkat the female was under sixteen years of age at the time, or Where the question of ker age is in dispute, and there is sufficient testimony to support a verdict tkat she was under tkat age, it is the duty of 'the court in the trial of an indictment under section 1154 to instruct the jury upon the offense denounced toy section 1155; and in suck a case it was not error to give the latter instruction alitkougk there was no evidence of actual consent.</p> <p>2. 'Criminal Daw — Argument and Conduct of Counsel. — It is not error for tke 'Commonwealth’s attorney to comment ¡before tke jury upon tke fact that a confederate of defendant had not testified “nor was ke here,” although there was no evidence to show that he was absent, since tke material fact was tkat 'lie failed to testify.</p> <p>3. ¡Criminal Daw — Newly Discovered Evidence — Impeachment.— Newly discovered evidence, in order to be available, must ordinarily be more than cumulative or impeaching, and in any event due diligence to discover and obtain it must ¡be shown; but no such diligence 'appears When it was shown that the witness whose testimony is sought was present at the trial, and especially so if he testified in the case in behalf of the party seeking the new trial.</p>

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

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