Volume 194 — Kentucky Reports

<p>Elections — Writing Name of Person to foe Voted for on Ballot. — The ■provision of section 1471, Kentucky Statutes, which requires an elector, who desires 'to vote for a person, to fill an office, whose name is not .printed upon the .ballots, to write the name of the person u-pon the ballot, is mandatory, and the elector himself, •must write the name, unless he is an illiterate, blind or physically disabled, when the clerk of election may write the name, •after the elector has deposed under oath, to such condition.</p>

<p>1. Eminent Domain — -(Condemnation for Purpose oí Transporting Material From Mine.- — 'Section 811, Kentucky 'Statutes, confers upon any person operating a mine within three miles -of a railroad for ■the purpose of transporting material ¡to and from such mine and ■railroad to -construct and -operate “a line of railroad” from the mine ito the railroad and to condemn “such land as may b-e- necessary, not exceeding fifty feet in width for each track necessarily constructed, etc.:” Held, that the limitations of fifty feet in (width for each track necessary to he constructed is absolute, but does not prevent condemnation of a wider strip where more than one track is necessary.</p> <p>2. Eminent iDom-ain — Jurisdictional 'Facts — ¡Pleading.-—While it is not expressly provided iby sections 835-840 of the statutes, which prescribe the procedure that a condemnation proceeding must 'be instituted 'by a formal petition .averring a necessity -for taking the- land sought -to he condemned and that the condemnor has been unable to -contract with the owner, the existence of these facts is a -condition precedent to -the right -conferred and they are jurisdictional facts which ¡mus-t ibe alleged by petition or statement -as the basis of the proceeding.</p> <p>3. .Eminent Domain — Question of Necessity — -Evidence.— The question oí necessity is one of law for the court and when a't is-su-e in the pleadings must be decided iby ¡the court upon the -proof. 4. Eminent Domain — Judicial Notice. — The court can not take judicial notice as (matter of common knowledge that but one track will be necessarily constructed to enable the condemnor to transport material to and from h'is mine and an established railroad.</p> <p>5. Eminent Domain — Appeal and Error. — By section 839 either party may appeal from the judgment of the county court to the circuit court and the trial in the latter court is de novo upon all questions of fact raised by either pleadings or exceptions to the commissioner’s report.</p> <p>6. Eminent Domain — Trial De Novo — 'Pleading—Amendments.—'Section 134 of the .Code applies to trials de novo in 'circuit courts of condemnation proceedings under sections 835-840 of the statutes, and the only limitation upon the court’s broad discretion in causing or permitting amended pleadings to be filed is that -they must he in furtherance of justice and must not change substantially the claim or defense.</p>

<p>1. 'Mines and Minerals — Injunction—Pleading.—Where plaintiff sued to e-njoin the disposition of equipment on leased premises the trial icourt properly allowed the defendant to interpose the defense that the mineable coa)l in the land had been exhausted, since, the petition and the answer are both founded -on the same contracts of lease.</p> <p>2. Appeal and Error — Finding of Chancellor. — Evidence- examined and held to warrant the finding -of the chancellor -that the -mineable -coal in the leased land was exhausted.</p> <p>3. Mines and Minerals — -Lease.—-All of -the terms of the -lease must be read together with a view of ascertaining the intent and purpose of the -instrument- as a whole. And while the lease may run for a term of twenty-five years if it appears that the mineable -coal has been -exhausted t'he lease will be regarded in law as having terminated.</p> <p>4. Mines -and Minerals — 'Lease—(Royalties.—'Minimum royalties will not he exacted from the -lessee after the- termination of the lease -on -account of exhaustion -of minerals in the land, since the purpose -of the lease was to require mining and 'that -purpose must necessarily be defeated (by the exhaustion of the mineral product.</p> <p>5. Mines and Minerals — Abandonment of Lease. — The provision of a lease giving to the lessor the equipment on the premises in the event of abandonment of the mining by the- lessee within five years, construed to he inapplicable to abandonment resulting from exhaustion of the mineral product.</p> <p>6. -Mines and .Minerals — (Lease.—A -provision -of a lease giving to lessor at the end of the -term thereof the option of purchasing the equipment on the premises at a valuation to he fixed hy appraisers, held not to he violated to the prejudice of appellant in view of -the fact that the mineral product was exhausted at the time lessees acquired the property -and the further fac-t that the lessors did not a-t any time offer to have the equipment valued and pay for the same or show that by the disposition of it they have been or will he damaged or otherwise prejudiced.</p> <p>7. Trial — Issue Out of Chancery. — It was not an abuse of judicial discretion to overrule a motion for an issue out of chancery, where the motion was mad-e after t'he proof had been taken an'd where it related to claims for damages which depended on a primary question, the decision of which rendered it unnecessary to pass on the question included in the motion.</p>

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

<p>1. Cancellation of Instruments — (Deeds—(Consideration.--Wibere the recited consideration in a deed of conveyance fails, and it is stipulated ¡therein that upon its failure the land is to revert to the ■grantor, a condition subsequent exists which will be enforced Iby a cancellation of t'he deed.</p> <p>2. Deeds — 'Consideration.—'Slight evidence tending to show that the consideration for a deed was the dismissal of a suit for damages is not sufficient to avoid the performance of the recited consideration in the deed itself.</p> <p>3. Deeds — Promise to Convey —Consideration.— The fact that the (promisee acquired a ■small interest in a tract of land in which the (promisor ¡agreed to convey her interest, does not satisfy the promise, inasmuch as the interest was acquired at a judicial sale and title thereto in no wise depends upon or relates to the agreement to convey.</p>

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

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

<p>Deeds — Abandonment of Use of Land — Reversion.—1Where one bas •by 'deed of warranty 'conveyed the absolute fee simple title to a tract -of land that a .spur track of a railroad may be 'built tbereon, there being no provision for a reversionary interest or restriction upon the right to the use thereof by the grantee, upon the abandonment of the use of the spur track constructed thereon, the title does not revert .to the grantor nor can he maintain any cause of action on any supposed title remaining in or reverting to him.</p>

<p>1. 'Criminal Law- — ’Presence at Trial -of One Charged With Felony. — As Iby hhe provisions of the -Constitution, section 11, Bill of Rights, and the provisions of the Criminan Code, section 183, the trial of one charged with the commission of a felony must he had in his presence it necessarily follows that he must be present during the •trial; 'that is, at all stage® -of the trial, which begins with the swearing of the jury and ends when the verdict is rendered.</p> <p>2. Criminal ¡Law- — -Presence at Trial of One Charged W'ith Felony.— “The right to be heard ¡by himself and counsel,” guaranteed the accused -by section 11, Bill of Rights, Constitution, embraces the right'to he present himself and to have a reasonable -opportunity to have his counsel .present, also, at every step in .the progress of the trial; and to deprive him o'f this right is a violation of that provision of the fundamental law.</p> <p>3. Criminal Law — (Protection of Accused in Certain Rights.- — In Capital cases there .are some: rights "so securely preserved to the accused by the Constitution that he may avail himself of their protection, although he 'has failed to observe the ru-les of practice requiring an objection to be made or an exception to he -saved, in order .that an error committed by the trial court -may be taken advantage of -on appeal.</p> <p>4. 'Criminal Law — Infliction -of Capita® Punishment — Presence of Accused at Trial. — In a -criminal case in which, the infliction of capital punishment is authorized by law, the: accused cannot waive his constitutional right -to -he present, iboth in person and by -counsel, -at every step in the progress -of the trial; and it necessarily follows -that if -such right -cannot -he waived by the- accused, it cannot be waived -for him by counsel when he is present, -or in his absence.</p> <p>5. Rape — Reading Stenographic ‘Notes to Jury After -Submission of Case. — In this case-, resulting in a verdict and judgment convicting the appellant o'f rape -upon -a female under -twelve years of age, and fixing his -punishment at -death, the action of the trial court, after the submission -of -the case and in the absence of the accused, though with the 'consent -of his counsel -then present, in sending its official stenographer to the jury room and permitting him, while -there alone with the ju-ry for more than an hour, to read to them from his stenographic notes certain portions.-of the Commonwealth’s evidence and converse with them regarding the evidence thus read, was such error as, on appeal, -compels the reversal of the judgment.</p> <p>6. Criminal Law — 'Constitutional Law — Subjects and Titles of Acts.— For the reasons set forth in Board of Penitentiary 'Commissioners v. Spencer, 1-59 Ky. 255, and cases -therein cited, chapter 163, Acts 1920, under which the appellant was indicted an-d tried is not violative o'f section 51, -Constitution.</p>

<p>1. Highways — Automobiles—Personal Injuries — Negligence.—Drivers of vehicles on a public highway must observe the law of the road and keep .to the right so as to allow other vehicles a reasonable opportunity to pass. 'If a driver of a buggy, after hearing .the ■signal of an approaching automobile, persists in driving his buggy ■in the center of the road, and through his negligence 'in so driving the buggy, is struck and the driver injured, his negligence contributing thereto in such way that but for it he would not have been injured, he can have no recovery.</p> <p>2. Highways — Automobiles—'Duties of Driver of. — It is the duty of the driver of an automobile when he sees another vehiclei in front ■on the public highway to exercise’ reasonable care to avoid coming in collision with it, and if need be bring his automobile to ,a full stop in order to avoid injury to the vehicle and its driver.</p> <p>3. Highways — 'Automobiles—Personal Injuries. — The driver of an ■automobile or other vehicle has no right to .strike or injure another vehicle or driver on a public highway -merely because the latter is violating the law of .the road by driving or being on tbe wrong side thereof, or because he obstructs' the public highway and interferes with the 'free passage of the automobile.</p>

<p>(Landlord and 'Tenant — Question -of Fa-ct — 'Findings.—'After making a -written rent contract for a farm and executing a note for $1,2-50.00 for the year’s rent the. tenant insisted lin this case that pursuant to the terms of the written contract providing that in case back .water should overflow the land after May 1st the tenant had the ■option of surrendering the land and cancelling the note and contract, the tenant did offer to .surrender the land and at the time of said offer entered into a new venbal contract with the landlord, whereby he was to have the use of the. farm for the year for $625.00; the tenant and his witnesses testified in substance to this effect, while the landlord and his witnesses testified that there was no such verbal contract, and that there was no tender or ■offer to surrender the farm toy the tenant: ¡Held, it being a question of fa'ct properly submitted to the jury as to whether there was a verbal 'contract and the jury having determined from the evidence that there was no such contract, its finding is conclusive.</p>

<p>1. Receivers — ‘Appointment—‘Discretion.'—Under the provisions of section 298 of the ‘Civil Code the appointment of a receiver rests largely in the discretion of the 'chancellor, although it is not an unlimited discretion.</p> <p>2. Receivers — Appointment—Discretion—'Distribution of Proceeds of ‘Oil ‘Royalty. — In a controversy between the holder of a life estate and .the •rema'in’clerman over the distribution of the proceeds of an oil royalty in the lands so held by them, it appearing that the pipe line company taking the oil had declined to market the same until the controversy Was settled, but was charging storage fees on the oil from the lease as it accumulated, the chancellor properly exercised his discretion jn appointing a receiver to take charge of the oil and market the same and thereby dispense with the storage fees.</p>

<p>Deeds — 'Exception, in Habendum Clause. — An exception in tbe habendum clause of a deed of “coal and coal right,” coupled with a recital in another part of the deed that 'the coal and c'oal right had already been 'sold and transferred, which latter recital was only true as to a part of .the land conveyed, operates as an exception of the coal and coal right under all of the land conveyed; the ex'Ception as to' tile part previously conveyed being for th'e benefit of the grantors’ former vendees, and the exception as to that part not previously conveyed being for t'he grantors’ benefit.</p>

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

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

<p>1. Wills — Evidence as to Contents. — Evidence as to the contents of a will which had not been -seen for thirty-five years should he admitted with caution, -and the testimony of witnesses who 'did not profes-s to give -the, exact phraseology of the will ¡but attempted to givé 'their construction >of it, should not he permitted to override relevant facts or circumstances tending to establish a contrary construction.</p> <p>2. Wills — 'Evidence as to Content's. — Wihere a contest as to the consents of a will, which had not been seen for more than thirty years, involved the question of whether the wife of the testator took an absolute estate in the income, or merely -a support therefrom with .the accumulations passing to the remaindermen under the will, the construction placed on the will by the interested parties, over a course -of more than a quarter of an century, is 'to be given ■greater weight than the testimony of witnesses who casually examined it thirty years before and who did not undertake to give the phraseology of .the will hut merely testified as to their construction of it.</p> <p>3. Wills — Evidence—Finding of 'Chancellor. — Evidence examined and held to warrant the finding by the chancellor that the will .in dis■pute devised to the wile of the testator an absolute estate in the income from the corpus.</p>

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

<p>■New Trial — Newly Discovered Evidence — 'Diligence.-—A 'failure to examine a public record and discover what it is required to show ■before trial is- not an exercise of reasonable 'diligence, and -such evidence discovered after the trial is not newly discovered evideuce that, under sections 340 'and 344 of the 'Code, will authorize a new trial.</p>

<p>1. Notice — Manner of Service. — -A notice required to be given by written contract which does not prescribe the manner in which it shall be given further than to provide that it shall be in writing does not have to be served in the .particular manner prescribed by the Co'de -for serving notices required by law, but -may be delivered by mail or any Informal manner that carries the written notice to the party to whom it is dne.</p> <p>2. Notice — ¡Notice to ¡Corporation. — Delivery of ¡such a contract notice to -the general manager in active charge of a corporation’s business is prima facie a delivery to the corporation.</p> <p>3. (Pleading — Failure to ‘State Cause of Action — ‘Cancellation of Mining Lease. — The petition did net state la cause of action for cancellation of a mining lease where it did not allege that required payments of royalties had not been made within the time after notice in which, the lessee had ¡the right under the lease to avoid -a -forfeiture by malting the payments.</p> <p>4. Pleading — Supplying Material Allegation. — 'A notice to the stockholders copied into and filed with the petition -containing such an allegation, without averment -that the statements contained therein are true cannot supply -a -material allegation not otherwise made in the petition.</p>

<p>1. -Boundaries — Location -of -Patents. — -The first rule for th-e- -location -of patents is 'to ascertain wha-t was the intention of the parties at the tim-e -the -survey was made, and to 'locate -it in accordance with that intention, provided -it may be done witho-ut violence -to well -settled legal principles. Some of the rules to be applied in such cases are, -that courses an-d distances surrender to natural -objects, and distances surrender -to courses, -and that -the least number of -changes either in courses -or di-stances will be adopted which will locate and close the patent conformably to the gathered -intention of the parties.</p> <p>2. Boundaries — Locating 'Lost Corners — Courses and Distances. — I-t ■is competent -in locating lost comers -between two known ones to reverse the -calls, and if in doing so it is necessary -to close--the patent -that only one line 'between -the two known corners should be lengthened to apply it to only one line, if to apportion the distance to -all t'he lines would re-sult in changing not only the -distance of e-ach line bu-t -also its -course -and a-t the same time make but little difference in the land contained -as well as the -shape of the surveyor’s .pla-t. Furthermore, if to appropriate the -increased distance entirely to one -line would more nearly conform -to the intention of the parties, as manifested by their acts and conduct since the- survey was made, it 'is proper to do so.</p>

<p>1. Wills — Dying Without Issue — 'Contingent Remainders. — The testator in one clause of Ms will said: “If -my daughter Emma R. Cosby should 'die without issue either 'before or after my death I will and direct that itbe. portion of my estate devised in trust for her shall be held upon the same terms for the child or children of my daughter Lilly Roy, until the youngest child arrives at the age of 21 years or marries; and then it shall ibe divided among .said children as it would descend under the laws of Kentucky.” Held, that the interest created thereby in the living children of testator’s daughter, Lilly iRoy, was a contingent remainder which ■if 'in real estate could, under the provisions of section 2341 of the ■statutes, be (sold, Ibut the purchaser would obtain no more absolute .title than was possessed by his vendor, and if the absolute .title never became vested the purchaser would obtain nothing.</p> <p>2. Wills — Vested Remainders. — .It does not necessarily follow that the . owner of a vested remainder has an absolute -interest, since the remainder may be defeasible and be defeated upon the happening of an uncertain contingency. In that case the purchaser from the remainderman will obtain no greater estate in the property than that .possessed 'by his vendor, and if the latter’s title should be defeated iso would that of .the purchaser.</p> <p>3. Wills — 'Comstruotion.—The above quoted clause, of the will is construed to mean .that only those children of Lilly Roy, who were living .at the time of the death of Emma R. Cosby without issue, or the descendants of any -who might then be -dead, acquire the absolute title to the property mentioned in .the clause; consequently, a mortgage, -executed by -orne of the children of Lilly Roy, and who afterwards died, leaving Emma R. Cosby surviving him creates no len-forc-ible lien on the mortgaged -property in favor of t-he mortgagee.</p>

<p>1. Divorce — 'Restoration 'of Property. — Notwithstanding the statutory provisions -requiring -the property rights of parties upon the granting of a divorce to he restored, such restoration will not be en■forced if the party has during 'the marriage relation conveyed the property to his or her husband or wife for fraudulent or immoral purposes.</p> <p>2. Fraud — Instruments of. — Courts will not permit themselves to be made the instruments by which fraudulent schemes are carried out.</p> <p>S. Divorce — Restoration of Property. — In a divorce action the evidence by both th© husband and the wife is incompetent insofar as it affects their property rights; and the recitals in the second ■deed in question being the only reliable evidence its purpose plainly was to place in the wife the title to the property therein conveyed 'because the husband had theretofore invested the wife’s property inherited from her father therein and taken title to himself.</p>

<p>1. Corporations — [Foreign Corporations — Engaged in .Business. — A foreign corporation is engaged in business in this state within the meaning of subsection 6 of section 51 of the Civil Code, which, through the manager of one of its departments, enters into a contract in this state with a citizen of this state Which is thereafter recognized by the foreign corporation, when under .the terms of that contract there are continued transactions between the foreign corporation and a citizen of this state, although the agent of such corporation was a non-re'sMent of this state and although the foreign corporation had only the one customer in this state, but had a series of transactions with that customer growing out ■of the contract made in this state with its agent.</p> <p>2. 'Corporations — Foreign Corporations — .Course of ‘Business. — When a non-resident corporation has a numlber of transactions with a resident of this state under a contract made (by its agent in this •state, although -its transactions therein (be confined to business with one firm or person or 'corporation, it is a course of business established therein, and it is (immaterial that it has only one customer therein.</p> <p>3. Corporations — (Foreign Corporations — 'Doing Business in State.— Where the agent of .a foreign corporation through whom a resident of this state has made a contract which .is subsequently recognized by the corporation, -thereafter comes to Kentucky three times within a period of fifteen months for the purpose of seeing the plaintiffs, who were the only customers of the corporation in ■this state, malves during that period a contract for his company which is recognized thereafter by the company, and during those trips assumed to act for the company in the adjustment of controversies with its .only customer, and there was no other agent of the company through whom the plaintiffs had ever done any business with it, such a representative (had charge of the business for his com'pany lin this state and the defendant thereby manifested its presence in this state for the purpose of doing businessi therein.</p>

<p>1. Taxation — Forfeiture of Land Delinquent. — 'The forfeiture of land titles for failure to assess and pay taxes thereon, as is provided •by article 3, chapter 108 of 1915 edition 'Carroll’s Statutes, and which is chapter 22, .Session Acts 1906, relates only to titles held under 'and by virtue of the grant of and patent 'by the 'Commonwealth of Kentucky or -by the Commonwealth of Virginia while Kentucky was a part of it, and the statute 'does not provide for the forfeiture of any other title, claim or possession of the same land although the owner or claimant of such adverse 'title to the grant, or patent, may be a 'defendant -in the forfeiture proceeding, Therefore, a title by adverse possession of a part of the land covered by the grant or patent sought to !be forfeited, is not affected ' by such proceeding, and a purchaser at the sale of the forfeited ■title, made ‘pursuant to -the forfeiture, as provided by tlie statute acquires no superior title as ag'ainst sucb adverse one or as against one acquired in any other manner than through the forfeited patent.</p> <p>2. Taxation — Forfeiture of Land (Delinquent. — Under section 6 of ■the act referred to (now section 4076g of the statute supra) a forfeiture of any title provided for, which is not purchased back by the owner‘or claimant thereof as provided by section 4076e of the statute, is immediately by operation of law transferred to and vested .in the one who -by himself alone or by himself and immediate vendors hel'd any part of the land claimed by, or under, any character or color of title for as much as five years immediately -preceding the forfeiture, by adverse possession and who ■paid the taxes thereon for the same time, and the purchaser of •the forfeited title acquires no interest in the land covered by the forfeited patent to any of the land so held.</p>

<p>1. .Partnership — Actions Between Partners — Estoppel.—¡Where a partner by suit against his co-partner recovered judgment determining his right to an interest as equal partner in a mineral lease attempted to be (held by the co-partner in his individual name, and declaring him entitled to share equally in whatever profits may 'have been realized by the co-par.tner in operating the lease; and such judgment, upon appeal taken by the co-partner, was affirmed by the .Court of Appeals, the latter, upon the return of the case to ■the circuit court, is estopped to raise, for the first time, .the question that the circuit court could not ascertain or adjudge .to the ■plaintiff his share of the profits realized by his (the defendant’s) individual operation of the lease, and that to obtain such an accounting the plaintiff must bring an independent action for a dissolution of the partnership and settlement of the partnership accounts.</p> <p>2. Appeal and Error — 'Finding of Chancellor. — Evidence examined ■and held sufficient to support the judgment of the chancellor.</p>

<p>1. New Trial — Newly Discovered Evidence — Requisites.—To warrant ■the granting of a new trial on the ground of newly discovered evidence, it must appear (1) ‘that the evidence is of such a decisive character as to render a different result reasonably certain; (2) that is has been discovered since the trial; (3) that it 'could mot have been discovered before the trial by the exercise of reasonable diligence; (4) that it is material to the issue; (5) that it is not merely cumulative or impeaching.</p> <p>2. New Trial — Newly Discovered Evidence — New Trial Not Granted For Evidence Known Before Trial. — A new trial on the ground of newly discovered evidence wiill not be granted where the evidence was known before t(he trial and b'ore on an undisputed point.</p> <p>3. New Trial — Newly Discovered Evidence — New Trial Not Granted For Evidence Known Before Trial. — A' new trial on the ground of newly discovered evidence will not 'be'granted where the; evidence ■was known before tbe trial and could bave been obtained by tire exercise of the slightest diligence.</p> <p>4. New Trial — Newly Discovered Evidence — New Trial Not Granted to 'Interrogate Witness as to- Fa'ot Which Should have Been Elicited. — The extent of a witness’s knowledge should foe ascertained While he is being examined, and a new trial will not foe granted to give counsel an opportunity to interrogate a witness as to a fact which a proper -examination in the first instance would have elicited. .</p>

<p>1. Elections — 'Special Elections—Notice.—The rule that where the 'Constitution or statute fixes the time for holding an election to fill a vacancy, failure to give notice of the election required by law will not invalidate the election, does not apply where the time and place for holding an election are to be fixed by some authority named in the statute after the happening of a condition precedent, and the statute not only provides for notice, but declares that the question shall not be submitted unless notice thereof .be published as required by the statute.</p> <p>2. Elections—Special Elections—Stock Running at Large—Statutory Notice of Election Mandatory.—Section 4647, Kentucky Statutes, requiring that the question whether stock should ibe permitted to run at large shall not be submitted unless notice thereof be published twenty days before the election, etc., is mandatory, and ■a failure to give such notice will render .the election void.</p> <p>3. Elections—Special Elections—Sto'ck Law Elections—Notice—Sufficiency.—The publication of the petition for a stock law election is not a sufficient notice under the statute.</p>

<p>1. Municipal (Corporations — 'Purchase of Water Plant- — Indebtedness. —A contract between a city of the fourth -class and a water company, entered into before the adoption of the present Constitution, whereby the former obligated itself, at the end of twenty-five years, to purchase or re-rent of the latter its waterworks plant erected under the contract to supply the city and its inhabitants w-ith water, created an -indebtednes when the contract Was made, as contemplated in sections 157 and 159 of the Constitution, whether the city elects to purchase or re-rent the plant.</p> <p>2. Municipal Corporations — Indebtedness.—To discharge or refund an indebtedness thus created such city is authorized, under section 3490, Kentucky Statutes, to issue and -sell its bonds in any amount not exceeding the principal of such indebtedness, without submission to the voters, and to levy each year a tax not exceeding ■one -dollar on -each $100.00 of taxable property within the city, to ‘pay the interest -on .the bonds and .provide a sinking fund to retire them, in excess of the seventy-five cents on the $100.00 for current ■expenses.</p>

<p>1. Schools and School Districts — Indebtedness.—In estimating the total indebtedness of a 'graded school district to determine whether it has reached its limit as fixed by sections 157 and 158 of the Constitution, only the indebtedness of .the school district can be considered, and the .indebtedness of the municipality, although embracing a part or the whole of the graded school district, cannot be tahen into the estimate.</p> <p>2. Schools and School Districts — Indebtedness.—Where the graded school district includes the whole of the municipality, and a large, outlying, adjacent district, and the city has an outstanding bonded indebtedness of $30,000.00 and the school district has a ■separate indebtedness of $6,000.00 and proposes to and does vote a bond issue of $50,000.00, the $30,000.00 of indebtedness of the city proper cannot ibe considered in determining whether the school district has exceeded two per cent of the assessed valuation of the taxable .property as provided -by sections 157 and 158 of the Constitution.</p> <p>3. Schools and 'Sohool Districts — Proceeds of Bond issue — Ratio Between White and Colored Schools. — 'Where the proceeds of the bond issue proposed to be voted are to be devoted to the building and repairing of the property of both white and colored schools, it is unnecessary to fix the ratio or basis upon which the funds are to be distributed between the two races before the bonds were voted and issued.</p> <p>4. Elections — Special Election Without 'Special Registration. — Wihile the statute provides that a special registration for -the registration of voters, entitled to participate in a special election, .shall be 'held at least five days 'before ,the election, ian election held without sucih registration will be upheld if it be made to satisfactorily appear that the total number of unregistered voters, residing in the territory affected by the election, is so small that if all such persons otherwise entitled to vote should have been allowed to vote in said special election, and they had voted as a unit against said bond issue, the final election result would not have been changed.</p>

<p>1. 'Ejectment — 'Pleading—Defect of Parties. — Where the petition in a suit of ejectment shews on its face that the tract of land, which the plaintiff seeks to recover, .belongs to her and another person, not made a party to the action, the defect of parties may be raised by special demurrer, and if so raised, should be sustained; if after •the demurrer is sustained the 'plaintiff declines to further plead, the petition should be dismissed.</p> <p>2. Ejectment — Parties.—A joint owner of land, who refuses to become a party plaintiff in an action in ejectment to recover the entire tract, should he made a party defendant, the reason being assigned in the pleading.</p> <p>3. Ejectment — Defect of Parties. — If a defect of parties plaintiff appearing in the petition be not objected to by demurrer or motion, it is waived, and the plaintiff, even in an ejectment suit, may have a recovery, if she show herself entitled thereto, of that par.t of the ■land only which is her share of the tract.</p>

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

<p>Railroads — Federal Control Act — Negligence.—No liability for negligence arising out of the operation of a railroad (by the- Director General under the Federal 'Control Act is -imposed upon the owner company, and an action for damages therefor cannot -be maintained against the company.</p>

<p>1. Judgment — Setting Aside Default Judgment. — The power of the court to set aside a default judgment at the term at which it is rendered is inherent and not dependent on sections of -the code regulating new trials. This power is to be exercised as a judicial 'discretion in the furtherance of justice.</p> <p>2. Judgment — Setting Aside Judgment. — Where it appears the defendant in good faith and without unnecessary delay attempted to notify its attorneys of the pendency of the -suit, hut, owing to an unusual chain of mishaps, the notice did not peach the attorneys until after a default judgment has been entered, and they at the same term and immediately after receiving notice filed a motion to set aside the judgment and tendered answer pleading good defense, the court should have- set aside the judgment and permitted defense to he made.</p>

<p>(Municipal Corporations — Annexation of Territory — Time of Piling Petition.- — A suit under section 3665, Kentucky 'Statutes, in remonstrance of the proposed annexation of territory to a city of the fifth class must be filed within thirty days after the enactment of the ordinance proposing -such annexation, if -same is published as •required by section 3664, Kentucky Statutes, and the fact that the annexing ordinance was likewise published does not extend the -time for filing such petition.</p>

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

<p>Appeal and Error — Instructions—'Evidence.—The instructions given in a jury trial must Ibe predicated upon the issues made in the pleadings and the faicts appertaining 'thereto which arise from the competent evidence heard upon the trial, hut evidence which is not relevant to an issue in the pleadings -cannot he considered.</p>

<p>1. ¡Grand Jury — Witnesses—Attendance and Examination Before ■Grand Jury. — A witness summoned before the grand jury will not . be excused from giving testimony respecting violations of the criminal or penal laws of the state, upon the ground that to do so might injure him in his business or in the estimation of his friends; and a constitutional provision that “no person shall be ■compelled to furnish evidence against himself” does not relate to questions of property or business, or to the protection, of other persons iby the witness.</p> <p>2. Prohibition — 'Refusal of Wíness to Answer Question Propounded by Grand Jury — 'Contempt.—'Where upon the refusal of a witness to answer a question propounded to him by the grand jury, he is taken by that body into the presence of the court, which, upon ■hearing from the foreman of the grand jury the question asked the Witness and of his refusal to answer it, and from the latter his reasons for such refusal, rules that the -question must be answered or the witness would be dealt with as for a contempt of court, such witness will not, upon his petition therefor, be awarded by the Court of Appeals a writ o.f prohibition to restrain the lower court from compelling 'him to answer the question asked -by the grand jury, or, in the event of his failure to do so, punish him for contempt.</p> <p>3. Prohibition — 'Restraint Upon Jurisdiction of Circuit 'Court. — A writ of prohibition will not be granted "by the Court of Appeals to restrain a circuit court from acting within its jurisdiction, however ■erroneous its actions may be.</p>

<p>1. Deeds — Mental Capacity. — Where a deed is attacked on the ground that the grantor had not sufficient mind to comprehend the nature of the transaction and to protect his rights in executing the deed, the question presented is one of fact to be determined on the evidence introduced.</p> <p>2. Deeds — .Mental Capacity — Annulment—Cancellation.—.Mental weakness alone is no.t snfficient to justify the annulment of a deed of conveyance. Mental incom-petency requiring the cancellation of a deed must amount to such infirmity as renders the grantor incapable of comprehending and understanding the subject of tbe contract, its nature and probable consequences.</p> <p>3. Deeds — Mental Capacity. — In determining whether the grantor had sufficient mental capacity ,to execute a deed, the inadequate ■ consideration appearing on the face of the deed should he, considered in connection with evidence relative to mental incompetency.</p> <p>4. Deeds — Mental Capacity — Annulment.—Nineteen years before the execution of a deed the grantor was sued !by a brother to recover the land embraced in it, but, after the issues were made up, no steps were taken in the litigation until another .brother and an attorney representing the plaintiff in that suit procured the grantor to deed the land to them, in consideration of the dismissal of the suit and the promise to pay approximately a third of the value of the land. .It appeared at -tíhat tim'e that the plaintiff in the original suit was an inmate of the 'county poor house where he had 'been for four years; that he 'did not know the attorney was representing 'him in the suit and did not know that the suit had been dismissed and the deed taken in the name of the attorney and his brother until after the whole transaction was closed. These facts considered in connection with the evidence showing mental incapacity on the part of the grantor require an annulment of the •deed.</p>

<p>1. Mines and Minerals — Leases.—The lessor and lessee each has ’a valuable and taxable -property in a lease, for mine operations, -under the terms of which the lessee agrees to rem'ove -all the coal from the -land.</p> <p>2. Mines and Minerals — Leases.—With respect to the taxable interest of -tlie lessor in the lease it is immaterial whether the lease be treated as a -sale of the mineral in t-he land or only as a conveyance of mineral rights, provided the 'lessor’s interest under the lease amounts to property of value.</p> <p>3. Taxation — Inaccurately Designated Property. — The assessment of inaccurately designated property does not render the assessment illegal if the property might have been properly designated and •the assessment made w,as not excessive but -was fair.</p> <p>4. Pleading — -Exhibits.—The allegations of a petition, which are contradicted by the exhibit filed therewith, are not to ibe accepted as true or as authorizing a judgment in conformity therewith but the facts must be determined as shown to exist in the exhibit.</p> <p>B. Taxation — Assessment of Coal Royalties. — 'The assessment of coal royalties for a given year and' the assessment of valuable rights in the lease under which the royalties arise for the same year cannot 'be considered as a double assessment or taxation.</p>

<p>1. Divorce — Grounds—Cruelty.—In a wife’® action for divorce, evidence considered and held to make out a case of cruelty sufficient to entitle her to a divorce from bed and board.</p> <p>2. 'Divorce — Custody of Children. — In case of divorce the custody of children of tender years will be awarded to the mother, if she be a suitable person, subject ,to -the right of the father to visit them 'at such times and places 'as the court may fix.</p> <p>S. Divorce — Alimony—Amount.—On divorce from bed and board, a ■husband, who has a farm and personal property worth about $10,000.00, will he required to pay the Wife $500.00 a year, payable in monthly installments, for the support of herself and two infant Children.</p>

<p>1. iMaster and .Servant — Injuries to Minor — Question for Jury.' — In a miner’s action for -personal injuries evidence examined and the question whether the company and its mine foreman exercised ordinary care to provide plaintiff a reasonably safe place to work held for the jury.</p> <p>2. Damages — Personal Injuries — ¡Excessiveness.—In an action for personal injuries a verdict of $5,-500.00 -was not excessive where the levidence showed that plaintiff’s hip was thrown out of joint and his leg shortened; that his hands were cut and mangled and he no longer has proper use of his fingers; that he suffered intensely, lost several months’ time from his work, and at the. end of four years was still unable to do the work that he formerly did.</p>

<p>1. Deeds — Intention.—¡The intent of the parties to a deed, as it appears from the whole deed, controls, and technical rules of construction cannot he 'applied where they lead to a different result.</p> <p>2. Deeds — ¡When Granting Clause Prevails. — If the granting and habendum clauses of a deed are found to he irreconcilable, and it is not apparent from the other parts of the instrument which the 'grantor intended should control, the granting clause should be allowed to prevail; but Where -both parts of the deed may stand together consistent with the rules of law, they should be construed to have that effect.</p> <p>3. Deeds — Ambiguity—Construction.—Where the language of a .deed is so ambiguous or uncertain that it cannot with satisfaction be determined what estate the grantor intended to convey, tha.t construction will be adopted which passes the fee, for the law favors the vesting of .estates.</p> <p>4. Reformation of Instruments — (Mistake.—The reformation of a deed ■will not be granted by a court of equity on the ground of a mistake in its terms made by the grantor alone. 'The mistake must ■have been one on the part of the grantee, as well, i. e., a mutual mistake, to authorize the reformation; and, although mutual, it cannot be corrected in an action brought for that purpose ■sixty-five years after the execution and acceptance of the deed containing the alleged mistake, as in such case the staleness of the transaction will prevent the correction of the mistake by a reformation of the deed containing it.</p> <p>5. Limitation of Actions — 'Pleading.—(While the statute of limitations, if relied on as a ground of defense; must be pleaded, the question of the stateness of the transaction or claim may .be raised by and determined upon a demurrer to the pleading manifesting -it.</p>

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

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

<p>1. Ejectment — Possessory Title. — In an action of ejectment a plaintiff may rely upon a possessory title alone where he shows hy satisfactory evidence that he and those under whom he claims 'have ¡been in the actual, notorious, continuous, .exclusive and hostile possession of the tract to a well defined boundary for as much as fifteen years next before his claim is assailed in a court of competent jurisdiction.</p> <p>2. Ejectment — Title.—In every ejectment suit the plaintiff must ¡rely .and prove his title to .the land in controversy. If he claims under a paper title he must trace it back to the Commonwealth, ■but if his claim is based on a possessory title he must show adverse .possesion for as much as fifteen years.</p>

<p>1. Municipal Corporations — Time o'£ Election of 'Mayor of Fourth 'Class City. — Section 160 of the ‘Constitution requires a mayor of a fourth class city, to he elected by the voters thereof, at the regular time for the selection of mayor, if the council of the town have not adopted an ordinance providing for his appointment, sixty days •before the November election, in the year, in which his selection is 'due to be made.</p> <p>2. Municipal 'Corporations — Vacancy in Office of Mayor — 'Appointment. — An ordinance adopted by the council providing for .the appointment o'f a mayor to fill a vacancy in an unex-pired term, which will take place upon a specified day, does not authorize an appointment for a full term, which will commends five years after the ordinance to fill the vacancy was adopted, under seci-'on 3484 Kentucky Statutes.</p>

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

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

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

<p>1. Wills — Intention of Testator.- — The will of a testator is his intention, as expressed in the will, and it should be given effect, unless contrary to law or public policy.</p> <p>2. Wills — Ambiguity—Construction.—14 tihe language of a will is- ambiguous, ithe circumstances surrounding the testator when the will was executed, -such as the motive actuating the testator in making ithe will, t'he amount -and .char-atít-er of his estate, and the relationship of the testator to the devisees, may he looked to in aid -of the language.</p> <p>3. Wills — Construction.-—-II the language of a wi-11 -is susceptible of ;two -constructions, it-h'e court will incline to that -construction, which will put devisees, who hear the same relations ito the testator, and who are equally objects of his bounty, and to whom he owes equal obligations of love and affection, upon a plane of equality ■under the wil-1.</p> <p>i. Wills — 'Disposition of Estate. — 'Regardless of what disposition a testator should make of his property, he is within his legal rights to make such disposition as he -chooses, and the province o4 the court is to give effect -to that disposition, when it is ascertained ■from the language made use of.</p> <p>5. Wills — -Value of Property Devised. — When a testator disposes of his entiré estate by his will, the valuation placed upon property specifically devis-ed to devisees, who are required to be charged with it, in the settlement of the estate, is the value at which it should he accounted for by the devisee, and in this, the rule is different to that provided by -statute, in the distribution of undevised property, where a portion of the estate is devised, and a portion is undevised.</p>

<p>1. 'Criminal Law — (New Trial. — 'On the motion for a new trial it was ■chargied that one of the jurors had expressed an opinion as to the guilt of the accused before the trial, which charge was supported toy the affidavit of the person to whom the juror was alleged to have expressed such opinion. The accused juror denied the .charge. Held, it was not an abuse of judicial discretion for the trial court to deny the motion on that ground.</p> <p>2. 'Criminal Law — Appeal and Error — Evidence.—On the evidencie in this case it cannot he held, as contended by appellant, that the verdict is not sustained by sufficient evidence. There was ample evidence introduced by the Commonwealth to support the conviction.</p> <p>3. Criminal Law — Evidence.—It was not prejudicial error to permit the Commonwealth .to introduce a witness to testify to a conversation between the accused and his 'brother, contradicting the testimony of the brother introduced by the .Commonwealth, since the objectionable testimony was incidental to the recital of Statements made by accused immediately after the killing, and, aside from that fact, did not reflect on his guilt and could not have adversely affected his rights befone the jury.</p> <p>4. Criminal Law — Evidence.—'Evidence relating to previous difficulties between .the accused and the deceased as tending to show motive and ill feeling is competent, but the details of such difficulties are not 'admissible and it is noit error to exclude them from the jury.</p> <p>5. 'Criminal Law — Absent Witnesses — Affidavits.—The refusal to permit accused to read to the jury an affidavit, as the testimony of absent witnesses, was not prejudicial under the facts in this case since the testimony of such witnesses related merely to the state of feeling between thie accused and the deceased which, was otherwise conclusively established.</p> <p>6. iCriminal Law — Instructions.—The omission of the word “feloniously” from instructions which correctly stated the law applicable to the proven facts was not prejudicial error.</p>

<p>1. Pleading — 'Departure in Pleading — 'Avoidance.—A reply alleging the acknowledgment of a 'debt before it was barred by-the statute of limitation, is not a departure from the cause of action pleaded in the petition but is a plea in avoidance authorized under section 98 of tbe Civil ICode.</p> <p>2. Trial — Transfer of Causes. — It was not error to submit to a jury, as an issue out of chancery, a question not sp'eoiiically included in the order of reference since on that question the jury found for the complaining party and the finding was adopted in the judgment.</p> <p>3. Appeal and Error — Attack Upon Judgment. — 1The judgment of a chancellor cannot toe attacked on the ground of error in submitting to the jury issues out of chancery. The finding of the jury on such issues is merely advisory and if -the júdgment is assailable at all it is on the ground that it is not sustained by the evidence.</p> <p>4. Limitation of Actions — Acknowledgment of Debt — -Presumption -of Payment. — An unequivocal acknowledgment of a deibt, not then (barred by limitation, serves to defeat the presumption of payment and prolongs th'e statutory limitation by cutting off the antecedent time.</p> <p>5. Appeal and Error — ¡Finding of Pact. — Evidence examined and held to -sustain the finding of fact, that the debtors acknowledged the debt before it was barred.</p> <p>6. Appeal and Error — Pleading.—The refusal of the trial court to permit an amended answer, counterclaim and set off to he filed can not he considered on appeal, where the pleading offered for filing and refused was not made a part of the record.</p>

<p>1. Brokers — Commissions.—A broker is entitled to his commission, who, acting in good faith, procures a purchaser willing, able and ready to take the property upon the terms offered by the principal and this is true notwithstanding t)he sale fails because of defect in itbe 'principal’s title of which the broker bad no notice.</p> <p>2. Brokers — 'Commissions.—If tble broker at the time he makes the •contract with the owner -knows of 'the 'defect in his employer’s title or knows facts sufficient to put a reasonably prudent person on inquiry, which if followed with reasonable diligence would bring to him such knowledge, he is not entitled to recover where the sale fails because of defect in title, unless it was the intention of the parties that the employer should subsequently perfect his title ’in order to complete the contract of sale.</p> <p>3. 'Brokers — 'Commissions.—A defense that the broker knew of the defect of title at the time the property was listed with him for sale, interposed Iby thie pleadings and supported by some evidence, ■should be submitted to the jury.</p>

<p>Gaming — Gambling Contracts and 'Transactions — Evidence.—In an action to recover the value of a draft, the evidence is such as to show that the draft was obtained in a game of chance and 'therefore no recovery can be had. Gaming — Gambling Contracts and Transactions — Daw of Another 'State. — -Where a gambling contract was made in Indiana, whose gaming statute ie much the same as that of Kentucky, the action to recover upon it cannot he maintained as the contract is void.</p>

<p>Appeal and Error — Finding of Court.- — It is a well recognized rule that -where the facts are submitted to the court in a common law action, the finding of the court is entitled to the same weight as the verdict of a properly instructed jury.</p>

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

<p>Partition — (Sale of Joint Mineral Estate. — In an action to sell a joint mineral estate in land for partition under section 490 of the Code upon the ground of indivisibility, evidence examined and held that'the joint estate can not be divided and the same is ordered sold for division of the preceeds.</p>

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

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

<p>1. Landlord and Tenant — Repairs.—In the absence of a contrary-agreement the law imposes no duty to repair upon the. landlord renting premises for a term.</p> <p>2. Forcible Entry and Detainer — 'Parol Evidence. — in forcible detainer proceedings the tenant may vary the terms of the written lease by parol evidence of a provision omitted by mutual mistake and have that question decided by the jury upon, conflicting evidence, if a defense is thereby presented.</p> <p>3. [Landlord and Tenant — 'Mistake of Draftsman of Lease-. — 'The fact that a mutual mistake as to the applicable law induced the omission rather that a mistake of the draftsman of -the lease does not alter the right.</p> <p>4. Forcible Entry and Detainer — Repairs—'Restitution..—That the landlord has violated his covenant to keep the premises in good repair, and thereby damages have resulted to the tenant, is no defense to restitution by 'forcible detainer for nonpayment of rent as provided in the lease, unless the tenant has been evicted from some portion of the premises by such failure to repair.</p>

<p>1. Elections — Contest—Equity.—'Courts of equity have no inherent power to try contested elections, notwithstanding fraud and corruption may be charged against the successful party.</p> <p>2. Elections — 'Contest.—But for statutes on the subject providing a mode of procedure by which one claiming to have been elected to an office and to whom a certificate of election has been regularly issued, no contest cou'ld be .maintained against him in any court, even though it be ¡alleged and proven that the successful candidate obtained his election by fraud.</p> <p>3. Elections — Contest—Equity.—Since no power inheres in a court of equity to try and determine election contests arising over a proposition to vote improvement bonds for cities, and the General Assembly has not conferred such power upon courts, as it has in other elections, no such right exists, and the attempt of the lower court to hear and determine such contest was outside its jurisdiction and its judgment upholding the bon'd,s 'is void.</p>

<p>Trial — Instructions—Evidence.-—In an action to recover -the value of certain whiskey warehouse. receipts the question of fact submitted to the jury was a simple one; it was submitted under proper instructions, and the judgment in favor of appellee will not be disturbed.</p>

<p>1. Electricity — Care in Manufacture, Sale and Distribution.- — Common prudence dictates that in the manufacture, sale and distribution of electricity the highest degree of care must -be exercised for the protection of others from this subtle and dangerous agency.</p> <p>2. Master and Servant — 'Action for Personal Injuries — Evidence—Instructions. — In an action for dam-ages -caused by death resulting from coming into contact with a live electric wire, the- trial court submitted the casé to the jury under instructions as favorable to appellant as the law and facts warranted, and the jury returned a verdict in favor of the utilities company, which verdict is fully sustained by the evidence-.</p>

<p>1. Divorce — 'Second Divorce. — Under the provisions of sections 2118 and 2120, Kentucky Statutes, a spouse cannot have a second divoree, either from the .same or a different defendant, upon the same ground unless that ground be adultery, or one of the grounds named in the statute for which either husband or wife may have a divorce.</p> <p>2. Divorce — .Alimony.—While the statute is sufficient to prevent the 'granting of a divorce upon the same ground as that relied on in a former action, it is not sufieient to prevent a recovery of alimony.</p>

<p>1. Elections — Judge Accompanying Voter to Booth. — The vote of an illiterate or any other person, whom a judge of the election accompanies to the booth and assists in the preparation of the ballot is an illegal vote and should be rejected.</p> <p>2. Elections — Unintentionally exposing ballot. — If the ballot of an elector is unintentionally and accidentally exposed, it does not render the vote illegal, and should not be rejected,</p> <p>3. Elections — 'Preparation of Ballot of Illiterate Person. — Where the votes of illiterate voters are received, who are assisted by the ■clerk or any officer of the election, in the preparation of the ballots, without first having been sworn, that they are illiterates, or who expose their ballots in the booth to an election officer, who ■stamps the ballot for them, or shows the voters where to stamp it, the votes of such illiterates should 'be eliminated from the poll of the candidate for which they were cast and counted, if it can be done.</p> <p>4. Elections — Illegal Votes. — If illegal votes, secretly cast cannot. ■be eliminated from the number received by the candidate for whom they were cast, and their number can be deducted from the -poll of the candidate certified as having a .majority, and he yet has a majority of all the votes cast, the illegal voting does not affect the result and the election should be allowed to stand.</p> <p>5. Elections — Essentials to Validity of Elections. — The chief essential to the validity of an election is to obtain the fair -expression of the will of the electorate, and to do this, the requirement of a secret, official ballot is mandatory, but, the statutes directing how this end is to be accomplished are directory, and a failure to comply with these directions will not vitiate the election if the essential end is attained, and thé mandatory provision for a secret ballot is observed.</p>

<p>Trusts — Management of Trust Estate. — The guardian of three infant brothers having fifty-five hundred dollars in money is authorized under the facts of this case to invest two thousand dollars of the same, to be supplemented by one thousand dollars furnished by their mother, in the purchase of a home for the mother and infants, such investment being authorized by section 4706, Kentucky Statutes.’</p>

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

<p>i. ¡Sales — Damages—¡Measure of Damages. — In an action upon notes for the ¡purchase price of a flouring mill, defendant in an answer and counterclaim pleaded the warranty of the mill, its defects and the extent of expenditure of money that was required to remedy such defects and asked damages: ¡Held, that the measure of damages is the difference .between the flour mill in the condition it Was in when delivered to the purchaser, and its value in the condition in which it was warranted to he.</p> <p>2. ¡Sales — 'Warranty—How May Be ¡Satisfied. — Where the subject ¡proves defective' Within the meaning of the warranty, the stipulation can be satisfied in no other way than by making it good.</p>

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

<p>1. Divorce — Evidence.—In an action for divorce, while the evidence ■is not strong enough to support the charge of cruel and inhuman treatment, it is sufficient to support the decree of the chancellor granting a divorce a mensa et thoro.</p> <p>2. Divorce — Alimony—Evidence—Attorneys’ Fees. — In an action for divorce and alimony, evidence examined and held that the allowance for alimony and attorneys’ fees reasonable.</p>

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

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

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

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

<p>Insurance — 'Death or Injury and 'Cause Thereof — Suicide—'Instructions. — ^In a suit upon a life insurance policy which provided that the company would not be liable if the insured committed suicide while sane or insane, the company is liable though the insured ilrilled himself, if at the time he was so bereft of reason or so insane as that he did not comprehend the nature of his act or its probable effect; but it is no avoidance of that clause that the act of self destruction was committed at a time when the insured was unable to govern his actions by reason of some insane impulse, since in that case the suicidal act was intended, from which the company is relieved under the stipulation against suicide while insane. It was therefore error for the court to add to its instruction authorizing a recovery “if the jury believe from the evidence that the said decedent was so insane that at the time of his act b© was unable to govern his actions by reason of some insane impulse.”</p>

<p>1. (Partition — Jurisdiction.—Under the provisions of section 499 of 'the Civil Code, county courts and circuit courts have concurrent jurisdiction for the partition of land among joint owners, and a 'suit for that purpose pending in either court may be pleaded in abatement of a subsequent one filed in the other one.</p> <p>2. Partition — Parties.—In such proceeding the holder of an adverse outstanding title is not a necessary party, but all persons claiming interest under the same title are necessary parties and should be brought into the case.</p> <p>3. Partition — Plea in Abatement — Parties.—Under the facts as disclosed in the opinion it is held that the pendency of a suit in the circuit court was properly pleadable in abatement of a subsequent 'One filed in the county court when the same parties to the county-court proceedings were also parties to the circuit court proceeding's and the same relief was sought in the latter as in the former, although there were other parties to the circuit court proceedings who were not such to the county court proceedings, and additional relief was sought in the circuit court to that sought in the county court.</p>

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

<p>1. Vendor and Purchaser — Deficiency in Acreage — Right to Relief.— •Even though the sale of land be in gross, the purchaser is entitled to compensation where the deficiency is as much as or more than ten per cent, and this rule applies to oil and gas lands as well as to agricultural lands, since acreage is just as important an element in the value of the former as in the value of the latter.</p> <p>2. Vendor and Purchaser — 'Deficiency in Acreage — Estoppel by Acceptance of Deed. — The acceptance by the purchaser of a deed describing the land in general terms, without specifying the number of acres, but conveying less land that the quantity represented in the option contract and prior negotiations, will not preclude him from relying upon the mistake in quantity, there being no conflict between the deed and the representations as to quantity theretofore made.</p> <p>3. Vendor and Purchaser — 'Deficiency in Acreage — 'Right to Relief. — In the option contract and prior negotiations the vendor represented the land as containing 640 acres more or less, and it was valued at $15,000.00, or at the rate of $23.43 an acre. The deed conveying the land described it in general terms without specifying the number of acres. There was a shortage in the quantity represented of 185.7 acres: Held, that the purchaser was entitled to recover for that number of acres at th& rate of $23.43 an acre, or the sum of $4,350.95.</p> <p>4. Vendor and Purchaser — Deficiency in Acreage — Acceptance of Deed for Less Quantity Than Represented — Merger—Estoppel.— ■In the option contract and prior negotiations, a tract of land was represented as containing 150 -acres more or less. Thereafter the purchaser accepted a deed which described the land as containing 100 acres more or less, and the land actually contained 107 acres: Held, -that as there was no allegation of fraud or mistake in the execution of the deed, all prior agreements and negotiations were merged in the deed, and its acceptance by the purchaser precluded him from recovering for any deficiency 'based on prior representations.</p>

<p>1. Judgment — Failure to Strike from Record — 'Directing Verdict.— The failure to strike from the record the name of the next friend ■of an infant, who pending the suit has attained his majority, does •not invalidate the judgment rendered or authorize a directed verdict against the infant.</p> <p>2. Infants — Abatement of Action. — When an action of an infant is brought by bis next friend the infant is himself the plaintiff and upon his becoming of age the next friend is no longer a necessary party and the action as to him is abated. *</p> <p>S. Assault and ¡Battery — ¡Punitive Damages — Instructions.—Opprobrious words or epithets do not justify an assault but are competent in evidence in mitigation of punitive damages. Evidence examined and held to warrant the giving of an instruction as to punitive damages.</p> <p>i. Assault and Battery — Damages—'Excessive Damages. — A verdict for $500.00 for assault not excessive in view of the facts and circumstances shown in this case.</p> <p>5. Appeal and Error — Argument of Counsel. — 'Misconduct of counsel in the concluding argument to the jury available as error on appeal must clearly appear in the record. The court will not draw inferences from it by interpolating words not spoken or consider preceding statements not properly incorporated into the record.</p>

<p>1. Deeds — Setting Aside — 'Mental Capacity. — A grantor, seeking to have a deed to real estate set aside on the ground that at the time it was executed he was of unsound mind, must show such mental infirmity at that time as rendered him incapable of understanding the contract and its probable effect.</p> <p>2. Appeal and Error — 'Finding of Chancellor. — Evidence examined and held to sustain the finding of the chancellor that the grantor in the deed in controversy was at the time of the execution of the instrument capable of understanding the consequences of his act.</p>

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

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

<p>■New Trial — Setting Aside Verdict. — -Tie verdict of a properly instructed jury will not be set aside unle'ss flagrantly against the evidence, and in ith'is case St is held that ithe verdict on all thei issues ¡necessary to find for the plaintiff is not flagrantly against the evidence; nor was the alleged newly discovered testimony, even if diligence was exercised, which is not shown, sufficient to authorize the granting of a new trial.</p>

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

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

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

<p>1. Indictment and Information — 'Requisites and Sufficiency of Accusation. — If an indictment contains a statement of facts which constitute the offense 'in 'language of suoh clearness and certainty, that a person of ordinary understanding will know from it what is intended and the court will be able to pronounce judgment according to the right of ’the case, 'it will be sufficient to (sustain a .prosecution.</p> <p>2. Criminal Law — .Separation of Jury — Appeal and Error. — If the ■members of a jury, -trying a capital case are permitted ¡by the court to separate, it is the 'duty of the accused, if done in his presence, .to 'Object thereto, but, if 'he fails to object thereto and if-ails to embrace the error in his grounds for a new .trial, it -can not be 'considered upon appeal.</p> <p>3. Criminal Law — Continuance—Appeal and Error — Neiw Trial.— An error of the court in overruling a motion for a continuance, but, which is not relied upon in a motion for a new trial, cannot he considered upon appeal.</p> <p>4. Criminal Law — 'Argument and 'Conduct of .Counsel — New Trial.— Improper argument by ithe 'Oommonwealth’is attorney must be objected to by the 'defendant, at the time, and if not, it is too late to -rely upon it 'in the motion for a new trial.</p> <p>5. -Criminal Law — Appeal and Error — Instructions.—fin a -criminal ■action, the Court of Appeals will not consider uipon appeal any error mad-e -during the itri-al, that is complained of for the fir-st time -in the m-pti-on for a new trial, except -errors in the giving an-d failing to give instru-ctions.</p> <p>6. Criminal Law — New Trial. — In a -criminal -trial it is necessary to iset out in ‘the grounds for a new trial all -the -errors made during the trial upon which a -party intends to rely upon appeal, except -errors in the admission -and rejection of -ewi-deinoe, which wil-1 be considered if s-h-own upon the bill of exceptions, with objections and exceptions.</p> <p>7. 'Criminal Law — Mental Uns-o-undnesis as Excuse for Crime.- — The unsoundnes-s of -min-d which will ex-cu-se one for a crime, is such mental uns-oundness, -that at th-e time of the -commission of the -crime th-e parity was witho-ut -sufficient -reason to kn-ow what he -was doing, -or -had not isuffi-oi-ent reason -to know right from wron-g, 'or as a result of ment-al im-s-oundne-ss he had not then sufficient will power to govern hi-s actions, by reason of an insane impulse which he -could not resist -or -control.</p> <p>S. Criminal Law — -Drunkenness.—-A lack of -sufficient rea-s-on to know what he is doing, or a lack of -sufficient Will power t-o control -hi-s actions, which .is caus-ed alone iby voluntary drunkenness will not excuste a -crime.</p>

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

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

<p>1. Railroads — ¡Licensees—Lookouts.—IT-here are two classes of li-' censees -on railroads: (a) .members of -t'lie genera! public who habitually use the track as a walkway with .the knowledge and acquiescence of -those in charge of the railnoa-d; (b) track employes of the railroad who have a right to be upon the .premises of the company. To the first group of.licensees mentioned above the railroad company and the operatives of its trains owe a lookout duty and are liable for injury inflicted on such licensees unless such lookout was maintained and the trains are operated at such .speed and in ¡such manner as to be under the control of the trainmen; While the second group are entitled to be upon the track and premises of the railroad it is their duty to know the schedule of trains, to keep a lookout for them and to avoid coming in contact with them.</p> <p>2. .Railroad's — Licensees.—Use of Tracks 'By. — While it is impossible' for the' court to fix with certainty the number of persons using the track of the railroad as a walkway at a given time and place to constitute such persons licensees and entitle them to the protection of licensees, members of the general public, .it may be stated as a general rule, whose use of the tracks is so habitual and continuous that the operatives of the trains, as resonable persons, must be presumed to know thereof and to anticipate that persons are likely to be upon the track at that point, are licensees and entitled to a lookout.</p> <p>3. Railroads — 'Duty to Track Employes. — A track employe required to report for duty at a certain tool house may in going from his place of residence to his .place of work ¡travel along the tracks of the company, .but in doing so hie occupies the same position with .respect to a lookout as he would if he had arrived aJt his place of employment and had actually commenced work and is entitled to no greater protection from train operatives than would have been due him .from them had he arrived at his place of employment and commenced to perform his duties.</p> <p>4. Railroads — Duty to Track Employes. — A railroad, however, owes to its track employes, on the track at night time, the duty of having and keeping upon its engines a reasonably sufficient headlight ■to enable such employes to know of the approach of trains and to keep out of their way.</p>

<p>1. Railroads — ¡Fires.—In ian action for damages • for toe destruction 'Of a ‘house alleged to have been caused by toe emission of spark's ¡from a railroad engine, toe evidence being circumstantial, it was for toe jury to determine whether toe fire was occasioned by toe negligence of toe railroad and its finding will not be disturbed unless -palpably against the evidence.</p> <p>2. 'Trial' — Argument of Counsel — iNieiw Trial. — One should not remain ■silent until after a trial has closed and a verdict rendered against him and then for the first time in his motion and grounds for a new trial offer objection to argument of counsel.</p>

<p>•1. Elections — Contest—Pleading.—An action filed in time, and practiced as an 'election 'contest ¡proceeding, will .be -treated as such .though, the pleading is styled “-petition in equity” instead of “petition,” and the parties are -designated as “plaintiff” and “defendant,” since su-ch formal defeats will not he allowed -t-o defeat the -intent, purpose and substance of th© remedy.</p> <p>2. Elections — -Contest—[Pleading.—-In proceedings .contesting an 'election n-o additional .grounds may be relied on by amendment •other than those -stated -in the -initial pleading and where in -that pleading t-h'e ground of -Contest was a failure to file the nominating certificate with Itfoe proper officer in time to authorize the printing of the name of the candidate on th-e official ballot (which is in effect .saying -that ia certificate was fi-le'd) .an -amendment withdrawing that ground and alleging in -effect that no certifi-cate was ever filed was improper and the -latter -ground -con not be -considered.</p> <p>3. Elections — Defective Certificate — 'Printing ¡Namie ton Ballot.— There is a distinction between the effect of printing the name of a candidate on -the official ballot without any semblance of authority to -do -so, and the printing of his name following the: filing -of a defective nominative certificate, when it-he defect therein was due to neglect and omissions of the ministerial -duties of the officer or -officers whose ,-duity it was 'to issue it and not to any neglect, fault or omissions of the candidate himself. But, whether the -printi-n-g of the -name in this latter case would -be -rendered illegal because of -the -defective certificate is not decided, since -it is unnecessary to the die,termination of the ©ase.</p>

<p>Wills — 'Contest—Porgery—Declaration's of Testator Admissible in Corroboration of Other Evidence as to Genuineness. — In t'bie:-contest of a will on the sole ground of forgery, both the ante-testamentary -declarations of the 'testator that 'he intended to make a will leaving his ■property to the oontes'tee, -and his post-testamentary declaration® that he had made such .a will, -are admissible in corroboration of other land more direct evidence tending to show t'he genuineness of the will.</p>

<p>1. 'Criminal Daw — Evidence.—Evidence examined and lueild to be 'Sufficient to support a verdict for manslaughter.</p> <p>2. 'Criminal Law — Collateral ¡Pacts and Circumstances. — The direct evidence of witnesses present at a difficulty may be contradicted -or discredited by collateral facts shown by the situation of the parties, the circumstances surrounding them, the location of the woundls, tih© nature and conformation of 'the ground and the character and temperament of the parties and the .witnesses. Such facts, circumstances and conditions are frequently more convincing than the direct statements of men.</p>

<p>1. Indictment and Information — Sufficiency of Accusation. — Where -an indictment sufficiently states a public offense constituting a felony, but instead of form-ally stating -that the -offense was committed before the finding -of the Indictment, alleges its commission -on the day preceding that upon whi-ch the indictment was returned, such fixing of the -time of the -commission of th-e- offense will be'regarded as a substantial compliance with -section 129, •Criminal Code, requiring its -commission to be -alleged in the indictment as -having -occurred -prior to the finding thereof. And in such -state of case the Commonwealth -on the -tr-i-al will not be -confined to ¡the time of the -commission -of the crime alleged, but will be p-ermitt-ed to prove its commission at any other time before the finding -of the indictment.</p> <p>2. -Criminal Law — New 'Trial — ¡Review.—A mere recital in the motion and ¡grounds for a -new tri-al complaining that -tibe trial court •erroneously overruled a demurrer to the ¡indictment, cann-o-t on appeal supply the absence from the record o-f the order showing the filing -or entering o-f the demurrer by the -defendant and the ruling of the court thereon. In the absence of such -order the court of appeals w-ill no-t review the rul-in-g of the trial court upon the ¡demurrer complained of.</p> <p>3. Rape^ — Evidence—Instructions.—JOn -the trial of the -appellant under an indictment -charging the unlawful detention -of -a woman by him with ¡the intent to have carnal Knowledge with her himself, the refusal by the ’trial court -of an instruction whi-ch would have -permitted the jury to find him guilty of an unlawful assault, was not error, as the evidence all conduced to prove -that he was guilty of the crime -charged, -or of -no offense at all.</p>

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

<p>1. Criminal Daw — Beading Indictment for 'Purpose of Impeachment 'of AVitness. — An indictmiemt for a misdemeanor and a plea of guilty thereto, may he read in evidence, for 'the purpose of impeaching a witness by 'showing that he has theretofore made a 'd-ifferient 'statement, hut, if -the indictment and plea of guilty do ■not 'contradict the witness', they are incompetent as evidence, and the only effect they would have would be to impeach the witness by proving that he had been convicted of particular wrongful acts, not amounting to felonies, which is not allowable under section 597, Civil Code.</p> <p>2. Criminal Law — Argumiemit and Conduct of Counsel. — Improper argument ;of ffche Oommonwealtli’is attorney, whioli is ’complained of for tlie first time, in tile grounds for a new trial, will not be considered upon appeal.</p>

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

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

<p>Deeds — Consideration—Parol Evidence. — The actual 'consideration for a deed may be shown by parol evidence even though the instrument itself rieicites no consideration or a different considerabioa; and this even Without a plea oí 'fraud or místate. Therefore, when one -of 'the parties to -a 'deed of partition simultaneously with Its execution ¡executed to another of ¡the parties'.an obligation ¡for money i-epresenting the agreed difference ¡in .the value of the interests set apart to thiem, 'it matters not 'that the deed of partition said nothing about .such additional -consideration.</p>

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

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

<p>1. Intoxicating ¡Liquors — Statutes.—The act ’of March 23, 1920, known as the 1920 prohibition law, is exclusive as to offenses, ■acts and regulations with which it 'purports to 'deal, -but the subject of unlawful possession of an illicit or moonshine still is mot included within its scope -and that part -of the act of March 29, 1918 (section ’2554d-l, 'Carroll’s Kentucky Statutes, 6th Edition, 1922), which deals with that subject has not been repealed or superseded by -the later statute.</p> <p>2. Criminal Daw — Possession of Illicit Still — Instructions.—In a prosecution against one for havin-g in his possession an dlllicit or moonshine still, the county attorney at the beginning of the case stated to the jury that the evidence would show that some time in the month of July two officers were ambushed and shot In Nelson county while returning from -a moonshine still. The trial court ■instructed the jury that -the statement -was competent only to show the purpose 'in ¡organizing ¡the posse and could not be considered as evidence affecting the gu-iit or innocence of the accused. Held, in view of that admonition, that the statement Was not prejudicial error.</p> <p>3. Criminal Law — Credibility of Evidence. — A legal conviction cannot be effected except on proof of guilt beyond a reasonable doubt, but the credibility of the evidence is 'for the jury, and if there is evidence to sustain the verdict it will not be disturbed on the ground that the guilt of the accused was not proven beyond a reasonable doubt.</p> <p>4. Criminal 'Law — ‘Use of Word “Possessions.” — The word “possessions” in section 10 of the state 'Constitution should not be deemed to have been used in the broad sense which it might 'bear, if standing alone, but must be construed in the sense of its relationship to the words of more definite and-particular meaning which precede it and with which it is associated and to be construed.</p> <p>5. Criminal Law — 'Use of Word “Possessions.” — “Possessions” as used -in section 10 of the state Constitution was intended to mean those intimate things- about one’s -person, like in kind to those ■previously denominated in the same provision. Bu-t a more -definite description of the word cannot be given, as every case where its ¡application is invoked must be determined upon the ¡facts and conditions ¡then under -consideration.</p> <p>6. Criminal Law — ¡Use of Word “Possessions.” — Looking ¡to the origin ■and the history -of section 10 of the Constitution and considering the word “.p'oSsession-s” in relationship to the -other words with which it i’s to be construed, it is he'l-d that ¡that section was not intended -to -apply to the searching -of woodland located somewhat remotely from a residence.</p>

<p>1. 'Criminal Law — 'Circumstantial 'Evidence. — A conviction, even in a murder case, may be had upon circumstantial evidence alone when it is' of 'such force as to .reasonably exclude ’every hypothesis of the defendant's innocence.</p> <p>2. Criminal Law — Evidence—Directing Verdict. — lEvi-dience for the 'Commonwealth in this case held to be of such character, and that therefore the court did not 'err in refusing to direct a verdict for 'defendant, accused of murdering his father by administering wo’od alcohol.</p> <p>3. 'Criminal Law — 'Circumstantial Evidence. — Where every reasonable inference -from the .whole evidence is consistent With defendant’s guilt and inconsistent with his innocence, the evidence, although 'circumstantial, supports a verdict of guilt.</p> <p>4. Criminal Law — New Trial — 'Newly Discovered Evidence. — Newly discovered evidence that 'is merely corroborative o'f evidence heard on the trial, and therefore cumulative and which is not of such Controlling character as would probably change the verdict, does not warrant a new 'trial.</p> <p>5. Criminal Law — New Trial — Newly Discovered Evidence. — Where the defendant met and talked with an alleged newly 'discovered Witness near the time and place cif the crime with which he is charged, 'the 'evidence of such witness tending to prove that another 'committed .the crime, will not warrant a new trial where no reason or explanation is 'offered for not ascertaining 'before the trial what the witness knew about the (facts involved, since any kind of diligence would have .prompted the defendant to interview such witness for 'the purpose of 'learning what, if anything, he knew about thie»cas'e.</p>

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

<p>1. Arson — Corpus Delicti in ’Crime of Arson. — The corpus delicti in ¡the crime of arson and other unlawful burning of property consists in the fact (a), of the burning and (b), of a'’criminal or an incendiary agency in producing if, but sufficient ‘proof of such criminal or incendiary -agency may be furnished by circumstantial evidence 'from which the origin of the fire may reasonably be inferred.</p> <p>2. Criminal Daw — Bloodhounds—Competency of Evidence as to Conduct. — Testimony as to trailing by bloodhounds of one charged with crime, may be permitted to go to the jury for what it is worth, as one of the 'circumstances which may tend to connect the defendant with the crime, only after it has been shown by ■some one 'having a personal knowledge oif 'the facts, (a) that the dog in question is of pure blood and of a stock characterized by acuteness of scent and power -of discrimination; (b) is itself possessed o£ these qualities and has -been trained or tested in the tracking of human beings; and (c) -that the dog so 'trained and ■tested was 'laid on the trail, whether visible or ndt, concerning which 'testimony had been admitted and at the point where the ■circumstances tend -clearly t-o show 'that the guil'ty party had been, or upon a track which such circumstances indicated had been made by him.</p> <p>3. iCriminal Daw — Bloo'dhounds—Competency of Evidence as to Conduct. — The trailing of bloodhounds when brought within the above rules entitling it t'o be received is admitted, either in corroboration of other testimony tending to establish guilt, or is competent to establish an additional circumstance tending to show guilt, but in either event it is insufficient standing alone and in and of .itself to authorize a conviction.</p> <p>4. 'Criminal Law — 'Bloodb'oun'ds—Evidence.—In this case the only other .evidence remotely bearing upon the issue oí .guilt was (a), ■that defendant in talking to his neighbor, whose barn was burned and for which defendant was indicted, .said to him in substance that he “had better” 'swear to a certain fact concerning a suit of defendant then pending; and (<b), that defendant though living within a quarter of a mile of the fire did not .go to it or offer to render any assistance, .explaining that he and the owner wens on non-speaking terms. Held, that those two circumstances were .insufficient with the trailing of the bloodhounds to authori»© a conviction.</p>

<p>1. Parent and Child — 'Custody of Child. — Under section 2016, Kentucky Statutes, if one 'parent of an infant is dead the surviving parent has the sole right to the custody of 'the inlfan't, if he or she he suited to the trust.</p> <p>2. ¡Parent and 'Child — Custody of Child. — ¡The only question under that statute is, in such a case, whether the surviving parent is •a suitable person to have such custody, and in the absence of ■convincing evidence to the ¡contrary the statute fixes the right of the parent to such custody.</p> <p>3. Parent and Child — ¡Custody of ¡Child,. — ¡The 'statute recognizes the natural right of a .surviving parent to the sole custody otf an infant child, ¡but, having always in view the interest of the child, requires of such ¡parent that he or she shall bie. suited to the sacred trust, and reserves the right -where the parent is not so suited ¡to change its custody even t'o the ¡extent of committing it to a ¡stranger.</p> <p>4. Parent and Child — ¡Custody of Child. — ¡The .burden of showing the unfitness of the surviving parent, in siich a controversy, is upon ¡the one .seeking to deny su'eh parent the -custody of the child.</p> <p>5. Parent and -Child' — Custody of Child. — (It is only ¡the surviving ■parent who is authorized by the statute to name a guardian for the custody oif an infant, as it ¡would be contrary to the statute to •hold that on-e parent might give aWay iby will -or otherwise the ¡custody of a child as against the other parent.</p> <p>6. Parent and Child — ¡Custody of Child. — A surviving parent is entitled to the custody of an infant as against the claims of a stat-. utory guardian, the latter having only the right to the possession, care and management -of the ward’s estate.</p>

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

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

<p>Corporations — -'Subscriptions -to -Stock — Action Again-s-t Promoter for -B&cov-ery — Tbe law requires of -promoters of proposed eorporaitions the utmost good .faith and a full disclosure of all material foots ■within their knowledge about the proposed corporation; but a failure upon his part to disclose to certain subscribers for stock ¡that he had loaned money to or financed other ‘subscribers for stock in order to .enable them to pay 'therefor, is not such a fraud as 'authorizes a recovery from the promoter by 'such stockholder.</p>

<p>1. Appeal and 'Error — Jurisdiction—Amount in Controversy. — On appeals from judgments for the recovery of money, the jurisdiction of the ''Count of Appeals is limited ¡to cases where the amount in ■controversy, exclusive of 'interest and costs, is as much as $200.00.</p> <p>2. Appeal and Error — 'Jurisdiction—'Amount in Controversy — Title to Realty. — ¡Where in an action to recover damages for cutting timber from land claimed to be owned by plaintiff, plaintiff did not ask that his title -be quieted and defendant filed no answer, and only the question of damages was' submitted to tire jury, wbioB returned a verdict for $185.00, .and the judgment followed .the verdict and did not adjudge that plaintiff was the owner of the land, the title to land is not involved and the amount in controversy 'being less than $200.00, 'exclusive of interest .and Costs, the 'Court of Appeals is without jurisdiction to entertain the appeal.</p>

<p>1. Tenancy in Common — 'Existence.—One who owns an undivided four-fifths interest in a tract of land and one who owns the remaining undivided one-fifth interest therein are tenant's in common.</p> <p>2. Partnership — (Existence—'Tenancy in Common. — A mere tenancy in common does not create a partnership.</p> <p>3. Tenancy in Common — Acquiring Outstanding Title. — Co-tenants ■stand in. such confidential relation to one another, in respect to the common property and' the common title thereto, that one of 'them will ¡not be permitted, without the consent of the others, to buy in an outstanding adversary claim or title and assert it for his exclusive benefit to .the prejudice of his co-tenants; but the purchasing tenant is regarded as holding the claim so purchased ■in trust for the benefit of all of his co-tenants in proportion to their respective interests in .the common property, who seasonably contribute their share of his necessary 'expenditures.</p> <p>ft. Tenancy in Common — Acquiring Outstanding 'Title — Duration of ■Restraint. — After a co-tenancy has dissolved, there is nothing in the law which forbids a former tenant in common from acquiring the entire property. He then lias the same rights as any other person.</p> <p>5. Tenancy in 'Common — Tenant in Common May Acquire Share oí Another at Judicial Sale if Only Latter’s 'Interest Be Sold. — -Onp ■tenant in common may purchase the .share of another at a judicial sale if the judgment or lien upon which such interest is sold is a lien only upon the undivided share of such other tenant in common.</p> <p>6. Tenancy in Common — Acquiring Outstanding Title — Liability.— F owned an undivided one-fifth and O an undivided four-fifths interest in a tract of land. A creditor of F obtained judgment against him and had an execution issued which was 'levied on F’e 'interest in the land. That interest was sold and the creditor became the purchaser and received a deed from the sheriff. The ■property brought more than .two-thirds of its appraised value, and F had no right to redeem. However, the .purchaser agreed to reconvey the land to F if he would pay .his indebtedness by June ■1, 1917. C purchased the property from the creditor with the understanding that if F appeared on or before June 1, 1917, and discharged his indebtedness, the transaction was not to become ■effective. F did not discharge his indebtedness on June 1st and the -sale by the creditor to C was consummated on June 2nd. Held, that as F had then parted with .his title and had no en- ; forcible right to redeem, the co-tenancy theretofore existing be- : tween him and C had ended, and C had the legal right to make the ■purchase.</p>

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

<p>1. Intoxicating Liquors — ¡Possession for 'Sale — (Meaning of Word “Keep.” — (In the statute making it unlawful “to keep” for sale spirituous, vinous, malt or intoxicating liquors, thje word “keep” means to have in ‘possession.</p> <p>2. 'Intoxicating -Liquors — -Keeping for Sale — Possession.—Under the statute making if unlawful “to keep” for 'sale spirituous, vinous malt or intoxicating liquors, the possession may be by the accused in person or through -an agent.</p> <p>3. -Intoxicating Liquors — Keeping for ¡Sale — -Evidence—-Question for -Court. — Where defendant reqsipted for express packages containing intoxicating liquor, and -then went with the express agent t-o the warehouse to get the packages, but before the packages were turned over to defendant, and even before the express agent had time to identify them or point them-out, or .indicate that they ■were at defendant’s disposal, the police officers arrested -defendant and themselves took possession of the -packages, -the evidence was insufficient to show that .the liquors were kept for -sale by defendant and his m-otion for a peremptory instruction should have been sustained.</p>

<p>1. Criminal Daw — ICommission of Illegal Act by Agent — Responsibility of Principal. — A principal can be subjected to prosecution and punishment for an offense against tbe penal or criminal laws of tbe state committed by bis agent acting by bis authority or approval, or witbin itbe scope of bis employment. It is not necessary to prove express consént on the part of tbe principal. Proof .that .the illegal act was committed by tbe agent in tbe principal’s place of business and in tbe apparent conduct of bis business, has been held sufficient ,to make out a prima facie case of implied authority.</p> <p>2. Intoxicating Liquors — Circumstantial Evidence. — It is a recognized rule in this jurisdiction that a conviction for violating a rp-e-nal -or -criminal law of -the state may he had upon circumstantial evidence alone, when it is of such .force as reasonably to exclude every hypothesis of -the defendant’s innocence. 'This is especially true of violations of the liquor law-s, which are nearly always committed with secrecy and by methods that often make detection difficult.</p> <p>3. Intoxicating Liquors — (Principal and Agent — -Instruction®.—In a penal prosecution against onie charged with the unlawful sale of intoxicating liquor by or through another as agent, an instruction which fails to advise the jury what, in law, would constitute the seller of the liquor in question the agent of .the accused principal, is reversible error.</p>

<p>1: 'Intoxicating Liquors — Evidence.—'While the necessity of enforcing the law prohibiting the manufacture and sale of intoxicating liquors is fully recognized by the courts, such necessity cannot justify the conviction of a person charged with a violation there*of upon mere suspicion or conjecture. The guilt of the accused must be established by the evidence beyond a reasonable doubt, as in the case of 'Other law violators</p> <p>2. Intoxicating Liquors — ‘Evidence—(Peremptory Instruction. — As the evidence upon which the appellant was convicted in this case of having in bis possession a still and equipment for the manufacture of whiskey, wholly failed to prove Ms ownership or possession of any such still or equipment, or his connection in any manner therewith, the failure of the trial court to sustain his motion for an instruction peremptorily directing a verdict of acquittal, entitles him to the reversal asked of the judgment of conviction.</p>

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

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

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

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

<p>1. Criminal Law — 'Objection to Evidence — Appeal and Error. — A general objection to the testimony of a witness as a whole is not available on appeal against the incompetent testimony of that witness, where other parts of his testimony are competent.</p> <p>2. Criminal Law — 'Failure bo Direct Report of Evidence. — It was not ■error for the trial court to fail to direct the official reporter to report and transcribe the evidence in a criminal prosecution, where the accused was represented by .a licensed attorney and neither he nor his attorney requested that the proceeding's he reported.</p> <p>3. Seduction — Character of Woman Seduced — Reformation.—The statement in the instructions to 'the jury, in a criminal prosecution under section 1214, Kentucky Statutes, that it is essential that the woman seduced he of chaste character at the time of the intercourse, and although she may have previously left the path ■of virtue and become unchaste, yet if she has repented of that act •and reformed she may again be .seduced, is a sufficient definition of seduction within the meaning of .the statute.</p> <p>4. Seduction — Argument and 'Conduct of 'Counsel. — An attempted definition of seduction by the Commonwealth attorney in his concluding argument to the jury, objected to but verified and approved by 'the trial court at the time, was equivalent to an oral instruction to the jury in the language used by the Commonwealth attorney.</p> <p>5. 'Seduction — Argument and Conduct of .Counsel. — A statement made ■to the jury by the Commonwealth attorney to .the effect, that if the accused by any advancement led the prosecutrix to believe that he was going to marry her and hut for which she would not have submitted to him there was a promise of marriage, was prejudicial •error, since the seduction denounced by the statute must occur under promise of marriage and the language used by ,the Commonwealth attorney required neither an express nor an implied promise.</p>

<p>1. Brokers-^iSales of Timber — Commissions.—In a suit for commission on the purchase of timber it is competent to prove subsequent transactions between the parties for which prompt settlements were made as tending to establish .the defense that there was no agreement -to pay any commission on the purchase in controversy.</p> <p>2. Appeal .and Error — ¡Instructions—Prejudicial Error. — An .instruetion authorizing a verdict for the plaintiffs if the jury should believe that they were employed to purchase the timber in question was not prejudicial because it did not tell the jury that they should find for plaintiffs, if the defendant employed either of them to purchase the timber, since the evidence for plaintiffs showed ■that they formed a limited partnership for the purpose of purchasing the timber and that the employment of either of them, in view of that limited partnership, was necessarily an employment of both.</p> <p>3. Appeal and Error — Instructions.—A party cannot complain of an ■instruction which follows the language employed by .an instruction offered by him and refused by the court.</p>

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

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

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

<p>1. Indictment and Information — (Endorsement—'Signature of Foreman. —The requirement of section 119 of the Criminal Code of Practice that an indictment “must be indorsed ‘a true bill’ and the indorsement signed by the foreman” is mandatory and the indictment should be quashed or set aside if .the .proper .steps are taken in the trial court for that purpose; but if no .such steps are taken the non-compliance with the section Will be deemed as waived.</p> <p>2. Indictment and Information — .Signature of Foreman — ¡Sufficiency. ■ — (A signing of a writing, under the rules of the common law, and in the absence of a .statute prescribing otherwise, does not necessarily mean that the required signature .should be at the end or bottom of the thing required to be signed, it being sufficient if it appears anywhere in the body of the writing or in immediate juxtaposition to it at the top, sides or bottom, if the act of writing the signature was with the intention -to comply with the law requiring signing.</p> <p>3. .Indictment and Information — ISignatiire of Foreman. — .Section 468 of the Kentucky Statutes refers to writings which must be executed by parties and does not include the signing of the name of the foreman of the grand jury to the indorsement “a true bill” on the indictment, and if the name of the foreman .is signed immediately above that indorsement section 119 of the Criminal Code is complied with, since the purpose of the indorsement, as well as the .signing, .is to verify the action of the grand jury in returning the indictment and to evidence the fact to the defendant, as well as the court, that the written accusation was in fact voted and returned by .the grand jury; and that purpose is as much accomplished when .the name of the foreman is written immediately ■above the indorsement as when written immediately below it.</p> <p>4. Indictment and 'Information — Signature of Foreman. — Neither is it necessary that the word “foreman” should follow or be annexed to the name of the .signing grand juror, since the section of the ■Code does not require the writing of that word but only that the one whose name is written is in fact foreman; and in the absence of an affirmative showing to the contrary it will be presumed that the one whose' signature appears was foreman and that fact is rendered conclusive when the order of court filing the indictment so recites.</p> <p>5. Criminal Law — Instructions.—'Where there is no evidence .to justify .the giving of a self-defense instruction it is improper to do so, ■but notwithstanding the impropriety such an instruction is harmless and does not operate to defendant’s prejudice.</p> <p>6. Criminal Law — Officer .Shooting Without Warrant. — Where the defendant was an officer with no warrant to arrest the deceased whom the defendnt claimed had .committed a misdemeanor in his ■presence, .intentionally and purpo,sel> shot in the direction of the deceased, who was fleeing, in such reckless manner as .to shoot .and kill him, but not with that purpose in view, the crime of voluntary manslaughter is committed, and in that ease there is no ¡room for an instruction on involuntary manslaughter, since it is committed through the reckless handling of a pistol or firearm, but with no intention to shoot, and where the shooting was the result of some accident superinduced by recklessness.</p> <p>7. Homicide — Question for Jury. — The deceased was only about ten feet from defendant when the fatal shot was fired, and he was riding a mule, and was shot about the middle of the hack. Defendant testified that he intended to shoo.t over the head of deceased to frighten Mm and induce him to surrender, but he stated •to others at the time that he intended to shoot the mule and thereby prevent the flight. The only crime of which .the deceased was guilty, if any, was a misdemeanor. Held, that it was for the jury to determine whether the .shooting was done with malice aforethought «o as to create the crime of murder, and its finding to that effect under the facts proven can not be considered as flagrantly against the evidence.</p>

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

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

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

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

<p>1. Master and Servant — ¡Workmen's Compensation Act — Acceptance —'Sufficiency of (Signature. — Under Kentucky ¡Statutes, (section 4957, providing that an election to operate under the provisions 'of the Workmen’s Compensation Act “shall be effected by the employe by signing the following notice,” and further providing that “the election shall be effective from and including the date of signing, which .shall be inserted epposlte the employe’s .signature,” •and that “in case an employe ibe unable to write, his mark shall be witnessed by a third person, etc.,” the method prescribed is not exclusive and does not necessai'ily prohibit any other method legally sufficient to accomplish the same result, such as the signing by another in the employe’s presence and at his direction.</p> <p>2. 'Master and Servant — ¡Workmen's Compensation Act — Acceptance —Sufficiency of ;Si'gnature.“Wih'ere .in a servant’s action for death, ■the employer filed a plea to the jurisdiction of .the count, based on -the claim that the servant .had accepted the provisions Of the Workmen’s Compensation Act, and .it was made to appear that the employer kept a register for employes to sign, that .t'he servant’s name appeared in the register immediately preceded and followed by other names, that his name was written and witnessed by the foreman 'charged with the duty of keeping the register and obtaining the signatures of employes, -and that the foreman, ■though not recalling the icircuimsitances under which the servant signed, testified that it was not his 'custom to write any name •unless authorized .by the employe to do so, the evidence was sufficient to show’ that the foreman signed and witnessed the name ■of the servant in his presence and 'at his direction, and that the servant had thereby accepted the provisions of the act.</p>

<p>■1. Municipal Corporations — Annexation of Territory — Public Streets. —Where a public street was taken into the city by annexation of territory which it traversed, it became a city street without formal action on the city’s part, ¡with the consequent duty -on the part of the city to use ordinary care to maintain the sidewalk thereon in a reasonably safe condition for public travel.</p> <p>2. Appeal and Error — 'Trial—Instructions—Question for Jury.— Where, in an action for personal injuries growing out of a sidewalk accident, the facts were undisputed and 'clearly sufficient to show that the street on which the accident occurred was a public street of the 'city, the court did not err in refusing either to grant a, peremptory in favor of the city or to submit the question to the jury.</p> <p>3. Appeal and Error — 'Trial—'Instructions.—Where the given instructions .fully covered the law of the case, 'it was not error to refuse ■the instructions offered 'by the defendant.</p> <p>4. Damages — Verdict for $1,000.00 for Fractdre of Leg Held Not Excessive.- — -Where plaintiff suffered a' painful fracture of the leg, was confined to the- hospital for twenty-eight day-s, was unable to walk without -crutches for a period of fiv-e months, and there. was 'evidence that the limb had been weakened and that she ¡would suffer ¡more or less pain, and 'that this condition would probably continue thei rest of her life, and in addition thereto it ¡was shown that she suffered special -damages for doctor’s bills, hospital bills, -lost -time, etc., amounting to -about i$3¡50.00, a v-er-diot for $1,000.00 was not excessive.</p> <p>5. Appeal and Error — Personal ¡Injury — ¡Instruction Authorizing Recovery for Permanent Injury not Error. — Where there was evidence that plaintiff’s leg had been -fractured and weakened, and that this condition would probably continue the rest -of her life, it was -not error .to authorize ¡a recovery for -permanent injuries.</p>

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

<p>1. Master and Servant — 'Scope of Servant’s Employment. — 'The master is not responsible for the wrongful act or negligence of the servant, unless the act -be done or negligence result in execution of tire authority, express or implied, given -by the master. Beyond the scope of iris 'employment the servant .is as much a stranger to 'his master 'as any -third person; and the act of the servant not ■done in the execution of the service for which he was engaged, cannot be regarded as the act of the master.</p> <p>2. Master -and Servant — Negligent Operation by 'Servant of Automobile. — An automobile is not such a dangerous contrivance as to render the owner liable for its negligent use by Ms chauffeur for ■purposes exclusively his own; and the mere fact that .the chauffeur iis unskilled in the operation of the -automobile, or that it was kept where -he had access to -it, will not, in .the absence of an allegation and proof to that effect, authorize the inference that he was accustomed to take or use the automobile for purposes of his own with the consent or knowledge of the owner or had ever done so.</p>

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

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

<p>1. New Trial — Discretion of 'Court.- — 'In the granting of new trials ■the court has a broad discretion, and 'its action in doing bo will not be interfered with by this court unless it clearly appears that such discretion has been abused, -since this -court will -interfere in such cases with greater reluctance than when 'the court -overruled t'he motion for a new trial; but that rule is one more of admonitory caution to the appellate court than an enlargement of power in the trial court.</p> <p>2. New Trial — Discretion of Court — Setting Aside Order — (Reinstating. — Wliat are tihe limits of a “broad discretion,” as applied to the power of .the -trial court /to -grant a -new itrial, and what constitutes “an abuse -of such discretion” are questions difficult of definition, but, whatever the correct definition may be, if it appears that in -granting the n-efw trial 'the court violated the fundamental rules of practice it committed an abuse of discretion, and when it is done solely upon the insufficiency of the evidence to support the verdict -and -the 'testimony is equiponderant, or nearly -so, this court will set aside the order and reinstate the verdict w-hen the record .properly presents the question.</p> <p>2. Evidence — Expert Testimony. — 'Expert testimony is considered among the weakest class and will be received -and .weighed with •great caution.</p> <p>4. "Wills — Abuse of Discretion 'in Setting Aside Verdict Finding Will Genuine. — Where the issue was whether a holographic will was genuine -or spurious, 'and the evidence was as much in favor of its 'genuineness as .that it was coun'telrfeit, .the court abused it® -discretion in setting aside a verdict finding it to be genuine; and upon appeal from a .second and -contrary verdict the judgment will be reversed with directions .to reinstate the first verdict and render judgment thereon.</p>

<p>1. 'Adverse Possession — Evidence.—The evidence examined and, as set out in the opinion, held to be abundantly sufficient to uphold ■the judgment finding the land in controversy -as included in appellee’s title papers and excluded from those of appellant.</p> <p>2. Adverse Possession — limitation of Actions. — Adverse possession, if otherwise 'sufficient, must be continued for the statutory period ■of fifteen years after the right to maintain the suit existed before ■it nan ripen into a title.</p> <p>S. Adverse Possession. — Trespass.—Occasional acts of trespass, though persisted in for more than fifteen years, is not such an adverse holding as will eventually perfect title.</p>

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

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

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

<p>1. Criminal Law- — Sales of Corporate' 'Stock — False Representations. —.Section 1213b, Kentucky Statutes, provides .that false representations as to financial condition or ability to pay must be in writing before tbe criminal liability attackes, and applies to sales of corporate stock.</p> <p>2. Criminal Law — Sales of Corporate Stock-yFalse 'Representations. - — Representations .that a pump manufactured by the corporation was protected by patent; that for every pump made $100.00 in cash was set aside for the 'stockholders and that the overplus above the 25% commission allowed for selling the stock went .into ■the treasury of the .company to expand its business 'held to relate to the company’s financial condition or ability to pay; and that .an indictment for obtaining money for the stock of the corporation 'by falsely making such representations was fatally defective that did not allege same were made in writing.</p>

<p>Railroads — (Action for Death, of Trackwalker — Evidence.—-Upon a former appeal of ithis ease it was held that plaintiff’s right to recover -for 'the death of 'his decedent, a trackwalker, depended upon proof of a rule requiring .signals 'for his benefit from the train that struck and killed him; and as the evidence on the -second trial failed to prove the existence of such a rule and was otherwise the same a-s on the first trial, the court errefl in refusing to direct the verdict for the defendant company.</p>

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

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

<p>1. Master and iServant — Workmen’® Compensation Act — Burden of Proof.. — Under the Workmen’s Compensation Act, the burden of proving .that the employe had a'ceepted the provisions of the act is -upon him, if such fact is denied.</p> <p>2. Master and 'Servant — (Workmen’s Compensation Act — Notice of Acceptance. — 'Although t'he identification of the signature of the employe to the notice of his election to accept the provisions of the Workmen’s Compensation Act, is made 'conclusive evidence of his a'oceptance, the employe is not precluded from proving that he accepted the provisions of the act in writing, as prescribed by ■the statute, by any other competent evidence, .when the register containing the notice is lost, concealed, mislaid or mutilated.</p> <p>3. Master and 'Servant — 'Workmen’s Compensation Act — Notice of Acceptance. — It is the duty of the employer to'keep and preserve the notice of acceptance by the employe of the provisions of the ■compensation ac't, .but if the register containing the notices of acceptance is mutilated, that fact, alone, will not prove the signing of the notice “by the employe, although its 'condition may make it valueless as evidence to disprove any other competent evidence, proving that the employe had subscribed the notice of acceptance.</p> <p>4. Master and Servant — Workmen’s Compensation Act — Acceptance of Provisions. — (The statute prescribes the mode of acceptance of the provisions of the 'compensation act 'by 'both employer and employe, to be the 'signing by them of notices of acceptance.</p>

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

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

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

<p>1. Pleading — (False ¡Representaitions — Demurrer.—A petition wliicli ■avers that tibe defendant through deceit and fraud obtained from -tihe plain-tiff money, is subject to demurrer if it also -appear from the -averments of the -plea-ding th-at the alleged false representation was -concerning an immaterial matter.</p> <p>2. Contracts — Fraud and Deceit — Pleading.—The appellant -corporation, a wholesale grocery concern, employed appellee, as its traveling -salesman in -the following way and under the -following contract: That appellant -company would .pay appellee the same compensation for his. services which he was- then receiving from P. and 'S., a rival concern -of appellant, for like services, the appellee at the time representing -to -appellant that he was receiving forty per-cent of the profits derived from sales made -by him, which, ■after being -considered -by -appellant,- it employed appellee as its -salesman and -agreed to and did thereafter -pay to him forty per cent of the profits arising from -sales m-ade -by him; 'but after he left appellant’s- employment learned for the first time that appellee had deceitfully -suppressed a -part of -the contract iwi-th P. & S., whereby he was to suffer forty per cent o,f the losses resulting from sales made by him, and by reason of -said deceitful suppression of part of the terms of the contract the appellant company had paid to appellee, as -compensation, more than $2,000.00, -to which .he was n-o-t entitled. The statement by appellee of'the '-compensation received by him from his then employer -was wholly immaterial -when the minds of the contracting parties met upon forty per cent of the profits derived .from the -sales as the compensation of appellee’.</p> <p>3. Contracts — Trade Talk — -Relief.—-A buyer or employer is not entitled to relief upon mere “trade talk” -or “boosts” given by a -seller or employe in order to effect a sale or induce a contract of - -employment.</p>

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

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

<p>1. Bail — Defect in Antecedent Proceedings. — -The -failure of the examining court to file th-e -papers and records of an examining trial in the office -of the clerk of the circuit court within the time required by section 70 of the Criminal Code, is a mere irregularity under section 85, that does not invalidate the bail bond executed by the accused for his appearance in the 'Circuit court, but it is indispensable that the decision of the examining court requiring the accused to give ha'il shall he filed in the trial court before a forfeiture is adjudged.</p> <p>2. Bail — Certificate of Examining Court Conclusive — The certificate otf the examining court that the- defendant was brought before him on a charge of .sodomy and that the defendant executed bond to answer said charge, in the circuit court will be accepted as conclusive that the accused was legally in custody charged with a public 'offense, where the only 'evidence offered to refute the •same is a copy of an undated warrant filed by the defendant, that attempts but fails to charge that crime and which the examining court ■ certifies is a true copy of the original, hut which does not appear ever to have been executed.</p> <p>S. (Bail — Validity of Bond. — A bail bond required by the county judge ■ •sitting as an examining court is not invalid because executed before an acting county judge who presumably had been appointed and was acting as such pursuant to section 1059, Kentucky Statutes.</p> <p>4. Bail — 'Defect in Antecedent Proceedings. — Under section 85 o£ the 'Criminal 'Code, a bail 'bond is not invalid because of any mere irregularities in the proceedings, and a judgment of forfeiture will not be reversed provided it was made, to 'appear before the for-. feature was adjudged that the defendant was legally in custody, charged with a .public offense, that he was discharged by reason of giving the bond and that the hail undertook that be would appear before the court 'for trial thereof.</p>

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

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

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

<p>Municipal ‘Corporations — 'Street Improvements — Ordinance.—'Section 2, chapter 10, Acts 1916, 'provides: “Tire improvement of public ways and 'sidewalks (including curbing and guttering) except as hereinafter provided, shall be made at .the exclusive cost of the owners of the real estate abutting on such improvement.” It ‘further provides: “The common council or said board of -commis^.siioners of any city of the third class may provide by general ordinance that such city ,shall pay part, and if so, what part of the cost of the .improvement of the streets, alleys, or other public ■ways (.excluding sidewalks) of such city. When such provision js made, it shall 'be uniform and shall thereafter apply.to the improvement of all streets, alleys and public ways in the city (excluding sidewalks) and sucli general provision shall not thereafter be changed or repealed except at intervals of ten years or more.” Held, that the power of the common council to provide by general ordinance that the city should pay part, and what part, ■did not carry with it the 'power to .relieve 'the abutting property owners of all liability and impose the entire 'burden upon 'the city, and that the ordinance -so providing was unauthorized and invalid and did not prevent the board of council from enacting another ordinance four years later,. providing 'that the entire cost of a ■street improvement should be borne by the abutting property owners.</p>

<p>1. 'Contracts — Cancellation of Instruments — 'Rescission—Fraud.— While courts do not undertake to make contracts for ,parties or to set aside their contracts on the sole ground of inadequacy of consideration, yet if the consideration he so grossly inadequate as to make the contract plainly unconscionable as to one of the ■parties, very little additional évidence of fraud will he required to authorize a rescission.</p> <p>2. 'Contracts — 'Cancellation of Instruments — Rescission—Fraud—Evidence. — In an action by a widow to rescind a contract by which •she sold her distributive share in her husband’s personal property and her dower in his real estate, evidence held sufficient to show that the contract was induced by fraudulent representations as to the value and extent of her husband’s estate.</p> <p>3. Dower — Conveyances—Validity.—A conveyance of real estate ■ made lby one after an agreement to marry, without consideration ■and without the knowledge or consent of his intended wife, is a f-raiud on the wife, and will be declared void 'to the extent that it deprives her of dower in the real estate conveyed, and the fact that the conveyance was made to the mother and sister of the igrantor, who were not dependent on him for their support, does not 'change the rule.</p> <p>4. . Dower — Conveyances—Actions—Evidence.—In a suit by a widow to set aside a conveyance executed by her deceased husband to his mother and sister, evidence held to warrant a finding that ■the conveyance was executed after tire parties had agreed to marry.</p>

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

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

<p>1. Ferries — Franchises and Privileges — 'Pleading.—A -petition for tire recovery of -damages 'for the invasion by the defendant of a franchise right (belonging to the plaintiff, 'is demurrable if -it fails to show that the franchise granted the plaintiff was in fact invaded by the business carried on by the defendant.</p> <p>2. Ferries — 'Franchises and Privileges. — 'One who relies upon a certain -franchise limited in -its scope and extent, must show that the defendant against ¡whom (he -seeks dannage-s for a violation of his privilege h-as pp©rat-§d b-is business within the territory or scope ■of the franchise -granted the plaintiff, or he must fail in his action.</p> <p>3. Ferries — Franchises and Privileges — Operation—-Tolls.—The plaintiff -averred that the town -of Columhus, on -the margin of the Mississippi river, granted him for a consideration a franchise or ferry privilege to operate a ferry -boat from that t-own, across the Mississippi river to Belmont, Missouri, -and that the defendant had operated an Independent boat or ferry from ¡the town of -Columhus down the Mississippi river about two miles to Wolf Island, and had by that means reduced the plaintiff’s tolls on his ferry to -the extent -of three dollars per day f-or several months. A-s the plaintiff was entitled to the unmolested operation -of his ferry between the town of Columbus, Kentucky, -and Belmont, Missouri, only and not to operate it from Columhus, Kentucky, down the Mississippi river two miles -to Wolf Island, he was n-ot concerned in such operation n-or wa-s his ¡franchise violated thereby.</p>

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

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

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

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

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

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

<p>1. Divorce — Alimony—¡Costs.—In an action concerning alimony and divorce, the ¡husband will toe required to pay the wife’s costs, •unless, she is both ¡at fault, and has ample means to pay her costs.</p> <p>2. Divorce — 'Alimony—'Order toy 'Court of Appeals for 'Payment.— Pending an appeal from a judgment denying to a wife a divorce, or alimony, if the wife is without counsel, and has not .money or property to employ counsel, to present her .cause of defense, in the Court of Appeals, and the circuit court has .failed or refused to make any provision for her to secure counsel to prosecute her appeal, the Court of Appeals has power 'to make an 'order requiring ing her hustoand to pay such a sum to her ¡as will toe reasonably necessary to enable her to secure counsel.</p> <p>3. Divorce — Alimony—Counsel Fees — ¡Costs.—'Counsel fees for the wife is a proper item of costs in an action ¡concerning alimony and divorce.</p>

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

<p>Divorce — Agreement Settling Alimony. — Where parties to a divorce suit enter into a written agreement settling a claim for alimony of the wife by giving her certain named property on condition that she have the attachment discharged and allow the husband to take all his other property, free from her claim for alimony and maintenance, and the further consideration that she pay to him a named sum of money, is binding -upon them even though no divorce is obtained in that action, and the husband after conveying the property by deed of general warranty to the wife in pursuance to said agreement and judgment entered in accordance therewith, is not entitled in a subsequent action to.have the property restored to him as provided in section 425 of the Civil Code and section 2121, Kentucky Statutes, as obtained by the wife from him through and by reason of the marriage relation.</p>

<p>1.. -Selt-off and 'Counterclaim — Unliquidated Damages. — "Where .one is sued on notes for the purchase price .of a piano under a written contract, she cannot interpose to such action, even against a nonresident plaintiff, a counterclaim or set-off for unliquidated damages resulting from an alleged assault iby the agent of the company .on the «person of the defendant.</p> <p>2. Set-off and Counterclaim — Unliquidated Damages. — In or-der that a set-off or 'counterclaim may present unliquidated damages to a suit on a contract, it must be made -to appear that some substantial obstacle exists to the collection of the said unliquidated damages being an independent action, unless such claim for unliquidated damages as arise out of the contract and on which the plaintiff sues, cannot be interposed by a set-off or counterclaim to the action; If it arise out of a transaction wholly independent of the contract it is not properly the subject of set-off or counterclaim to an action upon a contract.</p>

<p>Drains — Establishment—Appeal and Erroi-.-^-Where a .drainage district has ibeen regularly established according to cur statutes, and the viewers have made their final report of assessment of benefits and classifications .of the lands for the purpose of paying the costs of the improvement and the controversy is one as to whether the lands of the different exceptors to the report should be placed in the classes to which they were assigned by the report of the viewers, or in other classes, only a question of fact is involved which when .properly submitted to the jury • and determined is conclusive upon the parties. ■</p>

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

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

<p>1. Insane Persons — Sale of Land — 'Pleadings rand Proof — Sufficiency. —In an action by a committee against a person of unsound mind for a sale and reinvestment of real property the petition alleged that the mar-lcet price for improved property in N. was then active at high prices; that the present was an advantageous time -to sell the property; that the proceeds -of the -sale -could be invested at rates of interest which would return a larger income to -the lunatic than could be' obtained by renting said -property, and that it would be greatly to her benefit to sell all of said real estate and reinvest the proceeds in securities. There was evidence to the effect that it was a good -time to sell the houses as they were -old and somewhat run d-own, and would never -again bring as much as at that time; also that it was an unusually -good time to invest in interest bearing securities: Held, ithat the allegations and proof were sufficient to authorize a sale for the purpose of reinvestment.</p> <p>2. Ins-ane Persons — -Actions Against — Absent Defendants — Appointment of and Defense By -Guardian Ad -Litem Not Necessary for Person of Unsound Mind Not Summoned in This State. — No appointment of, nor defense by, a guardian ad liitem is required on behalf of defendant -of unsound mind who is not summoned in this state.</p> <p>3. Insane Persons — Sale of Land — 'Service of Summons. — Section 53, -Civil 'Code, providing that where the -committee is plaintiff, summons may be served on the person of unsound imind and the person having charge of her, but that service by delivering a copy to the -physician having charge of the person of unsound mind shall have the same effect as a service -on the person of unsound mind, if such physician gives a certificate, attested by the officer delivering him the copy, th-at a personal service would, in his opinion, be injurious to such person of unsound mind, applies only to a case where the person of unsound mind is amenable to service in this state, and service on the physician, -accompanied by the required affidavit, will n-ot -be sufficient where the person of unsound mind was absent from the state and could not be served with process.</p> <p>4. Insane Persons — Actions Against — Absent Defendants — 'Constructive Service. — -Under subsection 3, section 57, -Civil Code, a person of unsound mind who has been absent from the state for four months may be brought before the court by constructive service.</p> <p>5. Insane Persons — Sale -of Land — Bond by 'Committee — Failure t-o Record Bond Does Not Render Sale Invalid. — -S-o much of subsection 2, section 493, Civil -Code, as provides that the bond executed by the committee and approved by the court “shall be recorded with the order of sale,”, is merely directory, ’and the failure to comply with it -at the time the order of sale is entered does not affect the validity of the sale.</p>

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