Volume 195 — Kentucky Reports

<p>1. (Wills — Abridgment.—-When a testator in a separate paragraph makes an absolute disposition of his property to his wife, he can mot thereafter in the same testamentary paper abridge or limit the gift to his wife 'by -providing that at her death all the estate remaining “-be given to my daughter -to 'be bers absolutely.”</p> <p>2. Wills — -Abridgment.—'After a devise of a fee estate the testator has no -power to limit or abridge it.</p> <p>3. Wills — Devise tc Wife — 'Construction.—-Where a will provides “all the rest and residue of my estate real, personal and mixed, I give and bequeath -to my wife, Ann 'Gilligan,” and in -a subsequent paragraph provides “that at the -death of my wife, Ann Gilligan, I desire that all t-he estate remaining be -given t-o my daughter, Mary, to be -hers -absolutely,” 'by -giving 'all -of the -rest and residue of his estate, to his wife to be hers absolutely, there was no estate left which the testator -could devise to hi-s daughter, Mary, 'but such propery passed under the will of the wife.</p>

<p>1. Indictment and Information — (Requisites and Sufficiency. — If a statute ¡merely imposes a punishment for a common law offense, the indictment for that offense must contain an averment of every fact, necessary to constitute the common law offense.</p> <p>2. Indictment and Information — Requisites and Sufficiency.- — If Iby following the language of a statute, which -creates an offense, every fact, which Is necessary to constitute the -offense is charged -or implied -from the language of the indictment, the indictment will he sufficient, otherwise it will not.</p> <p>8. Larceny — Indictment and Information- — Chickens or Fowls. — An indictment for a violation of section 12,01c, Kentucky Statutes, to be sufficient, must charge every element necessary to constitute a common law larceny, and in addition that the fowls were of the value of $2.-00 -or more.</p> <p>4,. Larceny — Indictment -or Information — Trespass.-—-A trespass mu-st he committed to commit a larceny, and -a trespass can not he committed, if the owner -or one authorized by him to pass the title and possession of the -property, consents thereto; hence, it is necessary in an indictment for a larceny to -charge that the act of taking, -carrying -away and converting the property, was without the consent of t-he owner.</p> <p>5. Larceny — Inducing One to Part With Possession of Property. — -If one, by trick or fraud induces another -to (part with the possession of the property, -hut, who does n-ot inten-d to part with its ownership, and the taker at the time, intends to convert it to his -own -u-se and to permanently deprive the owner of it, such consent on the part of the -owner does not prevent the act from being a larceny, as the -owner di-d not consent to parting with the title to the property.</p>

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

<p>1. Damages — .Injury to One In His House. — One’s house is his oastle, whether it he a mansion or a hovel, and he is not required .to construct it so that it will withstand the assaults and trespasses of others, nor is he required to vacate it in order .to avoid danger from such assaults or trespasses, nor can the right to commit them arise from repeated acts which might result in tlieir commission.</p> <p>2. Continuance — Overruling Motion for. — The duty of the court to grant a continuance on the ground of the absence or illness of .counsel is a question iargely in the discretion of the court, the exercise of which is to he governed :by the peculiar facts and circumstances of each case. If counsel is the only one and the client has a meritorious case, and the cause of his absence or the occurring of his illness was sud-den and without sufficient time to substitute another in his place it would be the duty of the court to sustain the motion; but, where the issue was a simple one and there had -been another reputable and competent attorney as- . satiated with the absent one from the beginning of the litigation, and there was time to procure additional counsel, which was done, and defendants were represented on .the trial by those two competent attorneys, who appear from the record to have conducted the defense as ably as the absent attorney could have done, it was not error for the trial court to overrule defendants’ motion for a continuance upon .the 'ground of the absence, through sickness, of one of their counsel although claimed to ibe the chief one.</p> <p>3. Damages — Excessive Damages. — [Plaintiff, while in her house, was injured iby being struck with dirt, gravel and other debris breaking through its roof and ceiling and which was thrown from an explosion produced by defendants while excavating near -plaintiff’s house. She was unconscious from about noon, when the accident happened, till 7 p. m., and sustained a great nervous shock, besides having her back wrenched and sustained -other minor physical injuries, from all of which she was confined in bed, according to her evidence, for several weeks, during which, she suffered a miscarriage. Held, that a verdict for $2,500.00 was .not excessive.</p> <p>. i. Appeal and Error — Omissions in Evidence — Waiver.—If a defendant would rely on the insufficiency of plaintiff’s testimony, he should stand by the condition of the record as made at the close ■of that testimony and if he fails to do so and introduces evidence supplying the omission in plaintiff’s testimony and a verdict is returned against him, the omissions of plaintiff’s testimony are ■supplied -and the error is waived.</p>

<p>1. Damages — -Pleading—Instructions.—In an action -by a landowner against a railroad company for dam-ages to his land ¡by reason of faulty -construction of the railroad, wlhere the -several items -of -damages are specified in the pleadings, it was error in .the court to submit in its instructions any item of damage not embraced in' t-he pleadings.</p> <p>2. Damages — (Excessive Damages. — -Evidence examined and the verdict held to 'be ‘grossly excessive.</p> <p>3. Damages — Instructions.—-Where landowners had conveyed to a company contemplating the erection of a railroad a narrow strip through their farm for a valuable -consideration “.free from damages resulting from .the prudent construction and operation of said railroad,” and after .the company had done some work on the land a controversy arose as to whether all the land was embraced in the deed, and that controversy was adjusted for an additional compensation and a .second deed was made reciting that the consideration therein named was accepted in full payment of the right of way and in full liquidation and settlement of all claims •for damages up to that time, the court erroneously permitted in its instructions, a recovery for faulty construction prior to that time.</p> <p>4. Damages — (Measure of Damages. — Where the injury to the property results from a permanent structure, the 'correct measure of damages is the difference between the market value of the property before the injury and that after the injury.</p> <p>5. Damages — (Evidence.—Evidence on such a trial as to the illness of the landowner or members of his family because of the standing water was improper where .there is no allegation of special damage.</p>

<p>1. Covenants — Covenant of Warranty. — A general warranty .in a deed of conveyance under section 493 of Kentucky Statutes includes all tke special common law covenants of warranty.</p> <p>2. Covenants — Warranty—Chose in Action. — An unbroken warranty in a deed of conveyance passes to subsequent grantees with the title, but when broken dt automatically becomes a chose in action and does not pass with the transfer of title but only by express assignment.</p> <p>3. Mines and Minerals — Possession of Surface’ of 'Land — Trusts.—One holding possession of the surface of land under separate title holds possession of the minerals in the land as trustee of the legal owner thereof.</p> <p>4.- ¡Covenants — ¡Breach of. — Covenants of title in a deed to land, to ■which the grantor does not have title and to which he does not iand cannot deliver possession, is breached when the conveyance is made and the cause of action on the warranty accrues at once.</p>

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

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

<p>1. Pleading — Construction.'—Pleadings are liberally construed after verdict and judgment to sustain the judgment, whereas on demurrer and before judgment they are strictly construed against the rpleader.</p> <p>2. Damages — Breach of Contract — Pleading.—A statement of the nature or character of damages sustained is not an essential to the statement of the cause of action for (breach of contract, as nominal damages are always presumed .and recoverable for a breach of contract, hut a statement of the character of damage sustained is important upon the extent of the recovery, as special damages may not be recovered without pleading .proof thereof.</p> <p>3. Pleading — Breach of Contract — 'Special 'Damages. — The statements of a (petition for breach of contract with reference to .the nature of special damages sustained, held sufficient upon consideration ■thereof after verdict and judgment.</p>

<p>1. Process — Warning Order. — The evidence shows that a warning •order was actually made by the clerk; ,but if it had not, the affidavit in the record ifor a warning order and .the clerk’® entry on •the petition- showing the appointment of a warning' order attorney authorizes the presumption, in the absence of a showing to the -contrary, that the clerk had done ihis duty and 'the warning order had been made.</p> <p>2. Appearance — Pleading.—An answer filed in court in an action seeking to foreclose a mortgage against the joint property of sev- . eral defendants, part of whom are residents of this etate and part or whom are non-residents, the opening words of which are . ‘'Now come the defendants herein,” enters actual appearance of all -defendants-, both resident and non-resident.</p> <p>3. Mortgages — Enforcement of Lien — ’Interest.-—|In an action to foreclose a ¡mortgage it is too late one year after the judgment of sale and after the sale has been had and confirmed to raise for the first time the question that 'the plaintiff had procured a judgment for one year’s interest more than it was- entitled to.</p> <p>4. Executors and Administrators — Parties—Decedents’ Estates. — It is too late after final judgment to raise the question that no demand had been made as required :by law for the payment o'f a claim against a decedent’s estate, and i’t was too late ¡for the real representatives of the decedent to make the question that the administrator was a necessary party to the action.</p> <p>5. Trial — Questions ¿Must toe Seasonably Presented. — Parties -must ¡present 'their questions seasonably 'in court .and will not toe permitted to wait until after the rights of the ¡parties have 'been finally adjudged and then present issues which it was their duty to make before the entry of the judgment.</p> <p>6. Mortgages — Setting Sale Aside. — •'Where a mortgage refers to the property put in -lien as one hundred and ¡twenty acres more or lees, and it is made to appear long after a judgment of sale and the execution thereof, that the tract of land in fact embraced one hundred and sixty-three and a fraction acres, but lit wais all embraced in ¡the mortgage and judgment of sale and liable for the payment of the mortgage debt, and the commissioner reported 'that it was necessary to sell 'the whole of the land to produce the debt, interest and costs, the sale will not be set aside.</p> <p>7. Judicial Sales — Setting Aside Order of Confirmation. — Where there is a judgment of sale on the 21st of June which is executed in July, and one of the defendants dies thereafter but before the •confirmation iof the sale, and the court, 'in ignorance of her death, enters an order of confirmation, but thereafter sets aside the order of confirmation because there had been no revivor against the devisee of the decedent, the action in setting aside the order of confirmation was only an interlocutory order.</p> <p>8. Judgment — Final 'Order — Interlocutory Decree. — A final judgment or order is one which puts 'an end ¡to the action by granting or ■refusing ¡to grant the relief ¡the plaintiffs ¡have asked for in their ’pleadings, and which gives that relief by its own force without further action of the court; while an interlocutory decree i® one that leaves some further steps to be taken to enable the court to adjudicate and ¡settle the rights of the parties.</p> <p>9. Abatement and Revival — Revival.—'The purpose of an order of revivor is to bring ¡before the court parties in .interest who are not already before it, and if a party in interest is already before the court, and pending the action ¡another party in interest dies and makes the first named party her sole devisee, there is no neoes'sity of an order of revivor because of her death, the devisee being already a party in interest and before the court.</p> <p>10. New Trial — Filing Answer — Appearance.—The provision of section 414 of the Civil Code that a defendant against whom a judgment may have been rendered upon constructive .service of ¡summons, and who did not appear, may, within five years after ¡the rendition of the judgment, move for a new trial, has no application where the non-resident defendants enter their actual appearance by the filing of an answer.</p> <p>11. New 'Trial — Interlocutory Order — 'Confirmation.—An order made ■granting a new trial to non-residents under the provisions of section 414 is ¡only an interlocutory order, 'as 'the section itself contemplates 'that the court upon the-new trial ordered may thereafter confirm the original judgment or modify or set it aside.</p> <p>12. New Trial — Non-Resident Defendants — Judgment U®on Constructive Service. — A non-resident defendant after filing an answer in ithe action is on the same footing as a resident defendant -before the •count by actual .service, and the .provisions of .section 414 apply only to non-resident -defendants against whom a judgment has been rendered upon constructive -service and who have not appeared in the action.</p>

<p>1. Mines and Minerals — 'Lease—(Rent—Forfeiture.—Where the lease contract 'between the landowner and .an oil company .provides that the rentals shall be paid within .a given time to a certain person -in one -or more ways, and if not so paid the lease shall be void, the failure 'to comply with the terms of the lease by paying rentals or delay money in the way and manner provided forfeits the lease.</p> <p>2. Deeds — Life Estate. — Where the father conveyed the land in fee to his son, making only the following reservation: “The parties of the first part reserve the control of said -land during their natural life,” :the remainder in fee passed to the son, there being nothing greater’ than a life estate left in the father.</p> <p>3. Mines and Minerals — Life Tenant. — A life tenant has no right to lease the premises for oil and gas, but .the life tenant joining with the remainderman may execute a valid oil and gas lease.</p> <p>4. ' Mines and Minerals — Life Tenant — Remainders.—An oil and gas lease executed by the life tenant and remainderman to an oil company by a contract provided that in case no well was commenced on the premises within twelve months from the date of the lease the lease ¡shall be null and void unles the lessee shall thereby pay to a designated person ten cents per acre for each year drilling is delayed; the lease is void unless .the lessee pays the rentals in the way and manner provided in the lease, and a payment of the rentals to the life tenant over the objection of the remainderman will not suffice to keep the lease in force.</p> <p>5. Landlord and Tenant — Lease—-Rent.—A 'provision of a lease that ■the rentals may be paid to first parties or deposited in a designated bank ¡to -their -credit is not irreconciliable with a further provision Written in the lease requiring all rental money to be paid to a certain one of four grantors, because a payment to that grantor so designated may be made directly to him or by -depositing to his credit in the named hank.</p>

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

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

<p>1. Municipal Corporations — 'Contracts.—'When one contracts -with a ■city it is 'his duty to know the right and capacity of the agent of the city with whom he contracts to make such 'contract, and if he fails to make such investigation or to inform himself, and it turns out that such 'agent had no power or right to make such ■contract, the city is not obligated.</p> <p>2. Municipal Corporations — Delegation ol Authority — ¡Discretion.— The city of Paducah is one of the second class and has a commisision form of government. At a meeting of its hoard of commissioners an order was made directing one of the commissioners to procure a named architect to draw plans and ¡specifications for an addition to the city hospital. ¡Four members voted for this ■order and one against .it. The next day the commissioner so 'authorized undertook -to enter into a written contract with the architect .for the drawing of the plana whereby he agreed that the city would pay to the architect a certain compensation: Held, that the city cannot delegate its authority involving the exercise of a discretion to another, even to a member of the board, and the contract made by the commissioner .at the direction -of the hoard, .not having been subsequently ratified, was unenforceable against the city.</p>

<p>1. Street Railr-oads — Action for Injuries — Instructions.—'The instructions given by the trial court to the jury should present the antagonistic views of the issues made by the two parties; and where •the plaintiff, in a personal injury case, testified that in crossing a •street intersection .where there passed an electric car he was signaled by the m-otorman to pass in front of the car with his wagon, and in attempting to do so and while he was upon the track of the street car company in the street, the motorman suddenly caused .the ear to lurch .forward and strike the wagon of the plaintiff and injure him, it is 'proper that the trial court should have given 'an instruction .presenting the doctrine of the last •olear chance, and failing to do so reversible error was committed.</p> <p>2. Evidence — Credibility—Verbal 'Statement. — Although the plaintiff, after injury, makes a written application to a third party for a position, and -in doing so 'falsely .states 'that his health did not in any way interfere with his success in civil life and that he ■considered himself sound and well, and that he had not had any illness, disease or accident since 'Childhood, such is competent as evidence for the defendant on the subject of credibility of the evidence of plaintiff. But as the written statement was between •the plaintiff and a third .person a-nd was not binding between the plaintiff and defendant, it was no more .than a verbal statement; the defendant had the right to prove all the verbal statements made at tbe same time whereby he informed the concern to which he applied for a position -that he had suffered injury to his person and was unable .to walk a beat.</p>

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

<p>1. Guardian and Ward — Action for -Sale of Infant’s Real Estate — ■ Rights a-s Surviving Husband. — 'Where a surviving hus-ban'd of a decedent, who has certain rights in ¡her real estate as such surviving husband, qualifies as the guardian of an infant .child of the ■decedent and brings an action as such guardian without being a 'party to the suit- -in his individual -capacity, his rights as such surviving husband cannot be considered in any judgment entered ■by the -court.</p> <p>2. Guardian and Ward — Sale of Infant’s Real Estate — Bonds.—A. .suit by a guardian who as such -is the -only plaintiff and.wherein ■the infant Is the only defendant, in which the relief sought is the sale of the infant’s real estate for the purposes of reinvestment, is a -suit under subsection '5 of section 489 of -the Civil Code, and the bond required by section 493 of the Code to be given before the entry of the judgment must be so given or the judgment will be void under subsection 3 o,f section 493.</p> <p>3. Huslband and "Wiife — Estate of Surviving Husband. — A surviving ■busband only takes under section 2132, Kentucky Statutes, an estate for life in one-third of the 'decedent's ireal estate.</p>

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

<p>1. ¡Pleading — Variance.—Under the provisions' of section 129, Civil ¡Code, ¡there is no fatal variance between pleadings and proof ¡which does not .mislead a party to his ¡prejudice .in maintaining his action or defense uipon the merits.</p> <p>2. Pleading — Amendments—.Discretion.—The filing of amendments is a matter largely in the discretion of the trial court and that discretion will not he ¡interfered with upon appeal unless there has ■been an abuse of it.</p> <p>3. Executors and Administrators- — ¡Settlement.—Where one is administrator of an estate and at the same time guardian of an infant beneficiary in that -estate, upon a settlement as administrator -if he as guardian receipts to himself as- administrator for the funds coming to his infant ward, even though he does -not ■ actually pay to himsielf as guardian the money, he- is chargeable ¡with that amount, having .been given credit therefor in his administrator’s settlement, and the sureties in his gu-ardian’s bond are the only ones who could .complain that he fraudulently pretended to receive as guardian money- which he did not actually receive.</p> <p>4. Executors and Administrators — Use of .Funds in Partnership Business — Assignment—-Trusts.-—Where the only creditor of a .partnership has knowledge that one of the partners, who is the guardian ■o¡f an infant, hats used his ward’s funds in the partnership business, and the creditor with that knowledge extends credit to ¡the partnership and thereafter accepts from the members of the partnership an assignment of the partnership assets to secure its indebtedness, knqwing it was receiving under the assignment assets in payment of its debt equitably belonging to the infant, the creditor will be treated as holding ¡the -same in trust for the ¡ward.</p>

<p>1. 'Prohibition — Nature and Grounds. — 'The writ of habeas corpus lies for the release or interference with the custody of a person, only, when -he is 'illegally imprisoned, and not for the release or interference with the custody of one lawfully 'detained.</p> <p>2. Prisons — Arrest of Paroled Convicts — ¡Powers of (Board of Charities: — Release of Prisoner on Habeas Corpus. — The statute authorizes .the Board of 'Charities and Corrections, with ¡the approval of -the Governor, to issue a writ for and cause the arrest of a paroled convict, who has violated his parole, and the -custody of -the convict under -such, not being illegal, it cannot be interfered with by a writ of habeas corpus, but, if the state of ease is such, that the board was Without authority to issue the writ, -being void, the prisoner maiy be released upon a habeas corpus.</p> <p>3. Habeas Corpus — Nature and Grounds. — The iwri-t of habeas corpus is a discretionary writ, -and should be issued -only, upon a showing that a party is being illegally held, and if the petition for the writ -shows, that the prisoner is in lawful custody, the writ should he denied.</p> <p>4. Prisons — -Rearrest off Paroled Convict. — A person found guilty of •a -felony and his punishment fixed by the judgment of the court at a term -of -imprisonment in the reformatory and is granted a parole itherefrom, by -the Board -of Charities and Corrections, -before the maximum term -of his imprisonment has expired, and thereafter 'violates the terms and conditions off his parole, 'the parole becomes iv-oid, and the convict becomes as one, who -has an unsatisfied judgment against him, and may he rearrested and required to serve the remainder of his term, although -the -date of his violation of the parole, is after his term of imprisonment would have ex- ■ -pired, if he had remained in prison.</p> <p>5. prisons — ¡Paroled Convict Not Entitled -to Credit for Time -he Was •Out of Prison. — A judgment imposing a punishment by Imprisonment can be executed, only, by actually serving in prison during the time adjudged, and a paroled convict upon ¡his reincarceration in .prison, -because of violation of hi-s parole, is not -entitled to have credited upon his sentence, 'the -period of time, he has been out off the prison on parole.</p>

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

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

<p>1. Equity — Bona Fide Purchaser — Notice ’of Prior Equities. — in ‘Order for one <to be entitled to the equities of a bona fide purchaser without notice his purchase must be for a valuable consideration and it must be paid before he receives notice of prior equities, Otherwise he will not be entitled to priority.</p> <p>2. Equity — 'Purchaser’s Notice of Outstanding Interest. — If a purchaser dealing with property, the record title of which appears to 'be 'Complete, has 'information of extraneous facts sufficient to put ■him on inquiry respecting some outstanding interest, claim or right, and he omits to make proper inquiry, he will be charged with notice of all the facts which he might have learned by means of reasonable inquiry.</p> <p>3. Equity — Execution oí Deed Under 'Prior Contract — ¡Beginning oí Equities. — 'While the execution of a dee'cl o'f conveyance pursuant to the terms of a prior obtained contract might relate back to the ■date of the latter so as to fix the equities olf the purchaser as of that date, .still he Will obtain no greater 'equities through the execution of the deed than he obtained through his contract and if he failed to pay the consideration at that time but did so when the ■deed was executed, his equities will date from that time.</p> <p>4. Clerks of Courts — Indexing Deeds. — It is the duty of county clerks •■to index the recording of deeds and other instruments, and if they are lodged for record' and the fees paid, or if they are actually recorded, .a subsequent purchaser of the property acquires no rights over the 'beneficiary in the non-indexed instrument.</p> <p>5. Alteration of Instruments' — Materiality—Evidence.—Neither a deed ■or other writing, regular and formal on its face, nor any part of •it will be held as a forgery or as fraudulently altered, except upon the clearest evidence and where one witness testified that the 'deed as originally written and executed was as it noiw appears, and ithe .draftsman testified that he had no recollection about it tout that he was under the impression that he added other grantees after one of the grantors signed and acknowledged it, but which statement he modified after .seeing the original deed, the evidence is wholly i-risufii'cient to sustain the alleged fraudulent alteration.</p>

<p>1. Judges — 'Affidavit in Support of Motion to Vacate .Bench.. — 'The affidavit in support of a motion for the regular judge to vacate the bench, provided for in section 968, Kentucky Statutes', must do more than state the defendant's belief that the judge will not afford him a fair and impartial trial, an'd must state facts, and not mere conclusions, which necessarily show prejudice or bias by the judge sufficient to prevent him from fairly and impartially •trying the case.</p> <p>2. Judges — Vacation of Bench. — The mere fact that the crime was .committed while the judge was Commonwealth's attorney and that as such he drew or signed the indictment does not disqualify him from presiding at the trial.</p> <p>3. Judges — 'Vacation of .Bench — Affidavit.—iThe allegation that as Commonwealth’s attorney he was very vigorous in the prosecution of this case, as he was in all like cases, without stating the facts from which vigorous action was assumed, is but a conclusion of the affiant, and will he disregarded.</p> <p>4. ¿Homicide — 'Dying Declarations. — Although the competency of .a dying declaration of .statements añade by deceased is established, it is error to permit a paper upon which they were written by the ■witness when made but not signed by the deceased, to be read to •the jury as his dying.declaration.</p> <p>5. Homicide — Instructions.—Where it is claimed the homicide was accidental and there is any evidence to support it, it is the duty of the trial court to give instructions upon accidental and unintentional killing, and if there is evidence to support it, to give one based upon a .reckless and grossly careless use of firearms constituting voluntary manslaughter.</p>

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

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

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

<p>1. Bailment — Bailments for Mutual Benefit.' — A trust company which receives packages for ¡hire to be deposited in its vaults for safekeeping is responsible to the owner of such packages for their reasonable value, if lost.</p> <p>2. 'Bailment — 'Bailments for 'Mutual Benefit. — After the owner of ■the package deposited in the vault of 'the trust company has ■moved to another state, without declaring the value of the ■package to the trust company, or any of its employes, and by letter directs the trust company to ship the package by express ■to a named person, at a designated street number without intimating to the trust company the value of the package, or the nature of its contents, except to say that it is silverware, and the trust company, in pursuance to said letter of instruction from the ■owner of the package, calls the express company and delivers ■the package in good 'Condition to the express company, properly addressed to the person to whom the owner directed it to be ■shipped, and prepays the express but makes no declaration to the express company of the value of the contents of the package, and after receipting the trust company for the said package, takes it into its possession, and the package is afterwards lost and the express company is unable to deliver the package to the consignee, the trust company having performed its duty as directed •by the owner of the package was not guilty of negligence and was not liable to the owner of the package for its loss, or for its failure to declare to the express company the actual value of the package which was unknown to it.</p> <p>3. (Bailment — Bailments for Mutual Benefit. — 'The trust company was under no duty or obligation to the owner of the package to ■deliver the package to the express company for 'shipment, but having undertaken to do so it was bound to exercise such care in the performance of -that duty as 'reasonably prudent persons ■under like circumstances employ for the safety of like packages.</p> <p>4. Bailment — Bailments for Mutual Benefit. — The trust 'Company had ■not been informed by the owner of the package of the nature of ■the contents .or the value thereof, and was not fa position to make a declaration 'to the express company of the value of the package, and it was not required to guess the value thereof, nor was it authorized. either by the letter directing the shipment or otherwise 'to declare the value of the contents of the box. The owner of the package, plaintiff in this action, was guilty of negligence in failing to ma-lce .such declaration 'to the trust company and is therefore •not entitled to recover the value of the package from the trust company.</p>

<p>1. Wills — Construction.—A will which gives to the wife all the proceeds -of the estate during her natural life, bestows upon her during her life in fee all the income of such estate, and she may use or dispose of it in any way that may please her.</p> <p>2. Wills — 'Advancements.—Where a father loans to his sons sums of money for which he takes notes bearing interest at a 'given rate '“■from date until paid,” and does not thereafter attempt to collect ■said notes during his lifetime although he lives many years after ithe making of the notes, and in his will mentions the loans to his ■sons, giving the date, the amount and the rate of interest, adding, '“I will and desire in the -final settlement of my estate that he be ■charged five per centum until paid,” such loan will be treated as an advancement, and 'the testator having directed that interest be charged the devisee will be required to account to the estate for five per cent interest thereon.</p> <p>3. Wills — ¡Advancements—Interest.—'Ordinarily a devisee is not required to pay interest on advancements, hut where the testator specifically -provides that he shall do so in order to make the other ■heirs equal with him, the provision of the testamentary paper will he enforced.</p>

<p>1. Appeal and Error — Judgment—Final Order. — A judgment rendered, following a submission of the case on its ¡merits, and which, in legal meaning and effect, conclusively determines the respective rights of the ¡parties by deciding the issues raised and litigated ¡and definitely granting or refusing to either party the relief sought, is a final judgment from which the party ¡or parties aggrieved may •take an ¡appeal although the case may be passed or retained on the docket for the future ¡enforcement of some detail of the judgment provided ¡for by it terms.</p> <p>2. Judgment — ¡Setting Aside — 'Innocent Purchaser at Foreclosure Sale. ■ — ¡One purchasing land under a judgment of foreclosure on a fraudulent mortgage, with knowledge ¡of the - fraud in the mortgage, will not, in an action to set aside such judgment ¡and sale subsequently brought by ¡the true owners of the land; who were not •parties to the foreclosure ¡suit, be treated as an innocent purchaser of the land, or permitted to recover of the true owners the consideration paid by him for the land; or to escape liability to them for the value of such timber as he may have cut from the land and of a house he removed therefrom.</p>

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

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

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

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

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

<p>1. Damages — 'Failure of Water 'Company to Furndsli Sufficient Pressure — Fires—Pleading.—'In an action by a citizen to recover for the loss of his property by fire because of the ¡failure of a water ■company to furnish sufficient pressure, it is necessary for plaintiff to prove not only the failure of the water company to comply with its contract with the city but the further fact that his property was lost as a proximate result of such failure. If, therefore, the testimony .shows that the city, -or the one whose duty it was to 'do so, failed to furnish the necessary hose, tools, equipment and apparatus with which to put the water on the fire,' or that ■there was an insufficient and incompetent effort to do so .because •of the inefficiency of those attempting it, then in either of those instance's no recovery can be had regardless of the amount of pressure, since in that event the loss and injury would result from a cause wholly disconnected from any duty of the water company.</p> <p>2. Damages — Failure of Water Company to Furnish Sufficient Pressure — Pleading.—-A petition in this character of action should allege the duties of the water company under its contract with the city and a violation of them and where the contract requires only a designated pressure of water it can not be held responsible for its failure to furnish a greater pressure than that.</p> <p>3. Appeal and .Error — Demonstration of Pressure of Water Company. —It was error for the court, over defendant’s objections, to permit a demonstration before the jury of the use of the hose and other apparatus in 'throwing water, since the conditions necessarily could not be reproduced.</p> <p>4. Damages — Failure of Water Company to Supply Pressure. — It is ■no defense in a .suit of the character named that the city had failed to promptly pay [the water company its rentals as agreed to in the contract, since, if defendant elected to continue to operate its plant after default in payment, it must do so under the obligations imposed by the contract.</p>

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

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

<p>1. Intoxicating Liquors — 'Peace Bond Not {Required Under Act of 1920. ■ — A court, wherein one is convicted of a violation of 'the provisions of chapter 81, 'Session Acts, 1920, is not authorized as a consequence of the conviction to require the culprit to execute a bond with sureties to be of good behavior and to keep the peace for 'twelve months, and not to violate any of the provisions of the act of March 22, 1922, during the period, or in default of same to be committed to the county jail for ninety days.</p> <p>2. Criminal Law — Bond for Good Behavior — Appeal and Error. — An appeal will not lie from a circuit court to the Court of Appeals, from a judgment which does not exceed a fine of $50.00 or imprisonment exceeding 30 days; nor will an appeal lie .from an order requiring a bond with sureties, conditioned for future good behavior.</p> <p>3. Intoxicating Liquors — Bond to Keep Peace. — A court is authorized to require a bond to keep the peace and to be of good behavior, under the circumstances provided for by the Code, or a statute, and a court, has common law authority upon a conviction for a common law misdemeanor, which is punishaible by a common law penalty, to require a bond of the culprit to refrain in the future from committing the offense, but, the offenses committed by violating the laws regarding intoxicating liquors, being statutory, with statutory penalties, the court upon a conviction for such an 'offense cannot require a bond with sureties to assure against another commission, unless tbere is a statute authorizing the exercise e.f such power.</p>

<p>1. Vendor and Purchaser — Conveyance of Two Tracts in One Transaction. — A contract for the sale of two separate tracts of land at a specified rate per acre is one transaction notwithstanding the two tracts were conveyed by separate deeds and at different times, the latter fact being necessary to enable the grantor to perfect his title to one of the tracts.</p> <p>2. Vendor and Purchaser — Deficiency in Quantity of .Land. — The sale of two separate tracts of land at the price of $50.00 an acre is not a sale in gross but by the acre, and, whether the deficiency be great or small, the number of acres represented in the tracts ■must be within the boundary else 'the injured party is entitled to relief to the extent of the excess or deficiency.</p> <p>3. Vendor and Purchaser — Deficiency in Quantity 'of Land — Reimbursement. — 'Where land is sold in gross and the evidence shows ■the deficiency to have been so great as not to have been within the contemplation of the parties, the purchaser is entitled to an application of the 10% rule and to reimbursement for the deficiency at the agreed rate per acre.</p> <p>4. ¿Equity — ¿Multiplicity of Quits. — A court of equity will adopt the most efficient and economical method for the adjustment of controversies and will not require the doing of something that is useless and unnecessary, when it can dispose of the conflicting claims of the parties in a suit then pending.</p>

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

<p>1. Deeds — Title or Interest of Grantor. — A deed of general warranty to a tract of land not only conveys the existing interest of the the grantor in the land but also passes any subsequently acquired interest to his vendees.</p> <p>2. Deeds — Subsequent Entry and Survey. — One who accepted a general warranty deed to a tract of land and subsequently conveyed the interest thus acquired by a similar deed, could not thereafter as against Ms 'grantor or those claiming under such grantor, assert a claim to the land based on his subsequent entry upon and survey of it.</p> <p>3. Husband and Wife — 'Claim of Wife Against Grantor — Estoppel.— A wife claiming as the assignee of her husband, who -had made an entry upon and a survey of a tract of land but who had previously accepted a deed for it and thereafter had conveyed by general warranty his interest to others, is estopped from asserting her claim so acquired against the original grantor of her husband or against those claiming under such grantor.</p> <p>4. Estoppel — 'Assignments.—One will not be allowed to enforce a claim assigned to him by another, who was himself estopped from enforcing it and who neither acquired nor held any valid interest thereunder.</p>

<p>1. (Statutes — Subjects and Titles of Acts — Insurance.—Section 724 -of ■the statutes requires fidelity and guaranty companies to comply ■with -all laws regulating fire and marine insurance companies, whether enacted before or -since the enactment in 1892 of section 724, supra, since it makes no reference to any particular statute 'or part of statute by its title or otherwise, hut refers to the law ■generally governing a particular subject.</p> <p>2. Statutes — Subjects and Titles -of Acts. — (Section 51 of the Constituion providing .that no tew shall be revised, amended or the -provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published at length, is not violated by section 724, supra, requiring fidelity and guaranty companies to comply with all provisions of law applicable to fire and marine insurance companies, without re-enacting or publishing the law-s thus adopted by reference.</p> <p>8. Insurance — Rebating.—Section 7&2&-19, forbidding rebating by insurance agents, is violated where the secretary of a corporation ■organized to promote the business of its members, without capital stock and not for profit, acting as .agent for an insurance company, writes insurance for the members of his corporation and pays his commissions therefor to the corporation, thereby reducing the assessment against its members to pay his salary and expenses as secretary of the corporation.</p>

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

<p>1. Prohibition — Want or Excess of Jurisdiction — Remedy.—A writ of prohibition will not be granted by the Court of Appeals against an inferior jurisdiction, unless the inferior jurisdiction is traveling out of its jurisdiction, or is proceeding irregularly within it, and there is no other adequate remedy by appeal or otherwise.</p> <p>2. Prohibition — Want or Excess of Jurisdiction — Remedy.—The Court of Appeals will not grant a writ of prohibition against a jurisdiction inferior to the circuit court, if an application to the circuit court will furnish the aggrieved .party an adequate remedy.</p> <p>3. Constitutional Law — Legislature Supreme in its Own Sphere. — The legislative department of the government is supreme within- the sphere of its constitutional activities, and is immune from interference by. the judiciary, if it does not transcend its powers.</p> <p>4. Courts — 'Court of Appeals — Powers of Legislature. — The Court of Appeals has by common acquiescence and precedent been invested with 'authority to determine the powers of the legislature, as well as its own, but, it must remain within its own -powers as scrupulously as it is required to restrain the legislature, when it exceeds its powers-.</p> <p>5. Statutes — Expediency is Political Question. — The expediency of a statute, or whether the public good demands it are political questions, with which the courts have nothing to do.</p> <p>6. 'Constitutional Law — Enactment of Statute. — In determining whether in enacting a statute, the legislature contravenes any constitutional inhibition, the presumption is, that it is acting within its powers and all doubts must be resolved in f-avor of the validity of the legislation.</p> <p>7. 'Constitutional Law — 'Powers of Legislature. — The legislature of this state is empowered to do anything which the Constitution does not prohibit.</p> <p>8. Intoxicating Liquors — Legislature May Make Possession Public . Offense. — -The legislature under the Constitutional mandate to enforce the provisions of the 7th Amendment by appropriate legislation -is empowered to make the possession- of spirituous liquor, which has been acquired unlawfully, or which is intended to be used unlawfully, a public offense, such -an enactment having a logical tendency to restrict the manufacture, sale and transportation of intoxicating liquors.</p> <p>9. Intoxicating Liquors — Adoption of Seventh Amendment. — The adoption of the 7th Amendment to the Constitution of the State and the 18th Amendment to the Federal Constituion set up a public policy in this state to prohibit the use of intoxicating liquors for beverage purposes.</p> <p>10. -Statutes — Subjects- and Titles. — The title to Chapter 33, Session Acts, 1922, does not express but one general subject.</p> <p>11. Statutes — Subjects and Titles. — An independent act, which does not purport to be an amendatory act, may have the effect of repealing or amending all prior acts, inconsistent with it, and that without referring to them or re-enacting any portion of them, and will not be contrary to Section 51 of the Constitution on that account.</p> <p>12. Indictment and Information — 'Statutory Misdemeanor not Indictable. — A. statutory misdemeanor, the punishment for which is not infamous, is not an indictable offense, within the meaning of Section 12 of the Constitution.</p> <p>13. Criminal Law — Constitutional Law- — Infamous Punishment. — Infamous punishment in this jurisdiction is death or confinement in the state penitentiary or reformatory, and such imprisonment can be imposed for a felony only.</p> <p>14. Criminal Law — Constitutional Law — Infamous Crime. — An infamous crime, as referred to in the 5th Amendment of the Federal Constitution, is not an offense against a state statute, but has reference to an offense created by Congress.</p> <p>15. Jury — In Inferior Courts. — Under Section 248 of the Constitution a jury in a court inferior to the circuit court is composed of six persons, only.</p> <p>16. 'Statutes — Local or Special Laws.' — When the legislature creates an offense by a general law and provides for the punishment of any person, who commits the offense, and the law operates upon all persons equally and alike it is not a local or special law, within the meaning of Section 59 of the Constitution.</p> <p>17. Statutes — Uniform Jurisdiction. — A statute, which gives jurisdiction of certain offenses to all the courts of the same class, throughout the state, confers uniform jurisdiction and does not violate Section 142 of the Constitution.</p> <p>18. Criminal Law — Execution of Bond After First Conviction. — The requirement to execute a bond, after the first conviction of an offense against Chapter 33, Session Acts, 1922, is not a part of the punishment for the crime, nor in providing it does the legislature exercise a judicial function.</p> <p>19. Statutes — Emergency Clause. — The determination of what reasons are sufficient for the emergency clause of a statute under 'Section 55 of the Constitution, is within the competency of the legislature.</p>

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

<p>1. Adverse Possession — Entry of Joint Tenants. — Ordinarily the entry of one joint tenant upon land inures to the benefit of his co-tenants and his possession is not adverse to their rights, but the possession may be so hostile and adverse to the others as to invest the claimant with title by prescription.</p> <p>2. Adverse Possession — .Conveyance by Joint Tenant. — If one joint tenant conveys the joint property to a third party, and ,bhe grantee claiming the Whole, holds adversely for the necessary period of time he may acquire title by prescription.</p> <p>S. Adverse 'Possession — Evidence.—Evidence examined and held to show that the claim of appellants ripened into a title by adverse possession before the institution of this action.</p>

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

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

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

<p>1. ‘Husband and Wife — 'Conveyances by Husband and Wife. — A married woman .cannot convey her lands by .deed unless her busband join therein or has theretofore conveyed same to her grantee. (Section 506, Kentucky Statutes.)</p> <p>2. Keformation of Instruments — 'Evidence.—To authorize the reformation oif a deed the evidence of mutual mistake must be clear and convincing.</p> <p>S. Pleading — Traverse of Re'cord.- — ¡Where by agreement the pleadings of one of several plaintiffs are traversed of record, a joint reply of all plaintiffs is traversed in its entirety.</p> <p>4. Husband and Wife — 'Consideration for Void Deed by Married Woman. — A valuable 'Consideration paid to a married woman for lier land at tbe time she executed a void deed therefor, will support her later valid deed for the same land.</p> <p>5. ¡Husband and Wife — 'Signatures.—The signature o.f a person made by another in his presence and by his direction is valid and this rule applies to a married woman as well as others.</p> <p>C¡. (Husband and Wife — 'Certificate's of Grantors in Deed. — (By reason of section 3760, Kentucky'Statutes, a county clerk’s'oertificate that the grantors acknowledged before -him in his county a deed bearing their signatures, to be their act and deed, can not be attacked in other than a direct proceeding against the officer or his sureties, except by allegation of fraud in the party benefited thereby or mistake on the part of the officer.</p> <p>7. Acknowledgment — 'Presumption that Officer Performed Duty.— 'Where officer’s certificate of acknowledgment is not so attacked, and the evidence only shows that the acknowledgment was taken •and certified by the officer on the .same day the signatures were erased, it will be presumed that the officer performed his official duty in a legal manner rather than in an illegal manner, and took and certified the acknowledgment before the signatures were erased.</p> <p>8. 'Deeds — 'Erasure of Signatures. — -Title to. the land vested in the grantee when the deed -therefor was signed, acknowldged and delivered by the grantors, and the subsequent erasure of the 'grantors’ ■signatures was insufficient to invalidate the deed and reinvest the title in grantors</p>

<p>1. Negligence — Two or More Causes — Proximate Cause. — If the testimony shows that an accident resulting in death may have been produced by two or more .causes for one of which the defendant would be liable as having been produced by its negligence, and for the other or others it would not he liable because not produced iby its negligence, it is the duty of the court to direct a verdict for defendant, since not only must negligence, as well as injury, be proven and will not be presumed, but likewise a causal connection between the negligence and injury must also he proven, ■for it will not be presumed, nor will the court or jury be allowed to speculate that the injury was the proximate result of the negligence when it could equally, under the evidence, be the proxmate result of some other cause than defendant’s negligence.</p> <p>2. Negligence — Proximate Cause. — -Where the dead body of a brakeman on a -freight train was found just after the train had passed moving backwards and there was no blood on any of the wheels of 'the caboose or next car to it, but appeared first on the second car from -the caboose, and .the body was outside -of the rail with the dissevered head .in between the rails, and where no one saw ■the accident or how it happened, -the jury will not be allowed to speculate -as,to 'how it happened, 1. e., a-s -a proximate result .of any ngligence o-f the company by backing its train too fast or otherwise, or from -some other .cause for which the defendant would no.t be liable.</p> <p>3. Master and Servant — .Federal Employers’ Liability Act — Negligence. — While in actions-, brought under the -Federal -Emiployens’ Liability Aot, contributory negligence is no 'defense except in mitigatio-n of -damages, yet t-he same facts necessary to establish negligence mus-t be proven in that ease -the .same -as for negligence .under the state law, and likewise must the negligence under that statute be the proximate cause of the injury the same as in an action for the same character of cause under a state law.</p>

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

<p>1. Larceny — Indictment and Information’ — Stealing Chickens. — An indictment, drawn under section 1201c, Kentucky Statutes, for stealing chickens, must charge that the taking was against the will and without the consent of the owner of the chickens stolen, and failing to do this is demurrable.</p> <p>2. 'Criminal Laiw — (Failure of Defendant to Testify — Argument of Counsel. — By 'statutes, section 1641, it is provided that a defendant may testify in this own behalf, but his failure to do so shall not be commented upon or be allowed to create any presumptions against him. When a prosecuting attorney, either directly -or indirectly, calls attention of the jury to the fact that the defendant has failed to testify he violates the foregoing -section, and it is the duty of the court to admonish the jury that such argument is imiproper and to -exclude it from the -consideration of the jury, and if it be a flagrant violation of the rule the trial judge should forthwith discharge the jury and select another -for the trial of the case.</p>

<p>1. Carrier-s — Action by Passenger for Theft of Puree. — One who is •robbed of his purse -on a crowded passenger train'is no,t entitled to recover of the railroad company the value thereof, in the absence of a .specific showing that the railroad company had in its employ .pickpockets or thieves who had opportunity to and likely did purloin the purse, or by showing by satisfactory evidence that the railroad company and those in charge of the train knew or 'had reasonable .opportunity to know that there were in the crowd at the time one or more pickpockets or thieves who were about to rob i'ts passengers, in which event it became the duty of the persons in 'charge of the train to give such protection to its passengers against such thieves as could he reasonably done.</p> <p>2. 'Carriers — (Liability for Tort by One Passenger Upon Another. — As a general rule a railroad company is not liable for torts by one ipassenger upon another, unless the conductor or other servants in charge of the train knew, or by the exercise of ordinary care •could have known, of the -purpose or intention on the part of the tort feasor to commit the wrong against his fellow passenger, and with such knowledge failed to exercise reasonable care to prevent such wrong and to protect the passenger against same.</p> <p>3. Trial — Instructions—Duty of Court. — In civil cases it is not the duty of the 'trial judge to give the whole law of the case, nor to give an instruction upon any phase or issue of the case unless requested so to do by one of the parties to the action.</p>

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

<p>1. Municipal Corporations — Annexation of Territory — Ordinances.— In tlie title to an annexation ordinance the territory proposed to be annexed was described as “part of the town of C. B.” In the Ibody of the ordinance it was described as “part of the town of C. B. . . . described as follows. Part of the city of C. B. . . . included in territory described as follows:” Held that as the ordinance did not embrace unincorporated territory, but dealt only with incorporated territory, and therefore with the subject expressed in the title, it was not violative of section 3059, Kentucky Statutes, providing that “no ordinance shall embrace more than one subject, and that shall be expressed in the title.”</p> <p>2. Municipal Corporations — Annexation of Territory — Description of Territory. — In an ordinance annexing a part of a town of the sixth class, the description was as follows: “Part of the town of C. B. . . . described as follows: Part of the city of C. B. . . . included in territory described as .follows.” Then followed an accurate description of the territory by metes and bounds. Held, that the description was .sufficient to meet the requirements of the statute that the ordinance should define accurately the part of the city proposed to be annexed.</p>

<p>1. Home-stead — (Exemption Against Purchase M,oney 'Claim. — Under 'the -term-s -of o-ur .statute (-section 170i2) there i-s no homestead exemption as against a claim for purchase money due, and it is not necessary that .a wife 'should join with her hu-s-ban-d in a mortgage (given iby him to secure m-oney with which to pay off the purchase price.</p> <p>2. Homestead — -Improvements—Liens.—Where the purchaser partially erects improvements on the homestead before the -purchase price is paid, -although 'there is no lien retained therefor, if he .then borrows additional m-oney -from the seller for the -purpose of •completing the improvements, and -executes to him a mortgage to cover 'the original -purchase -price and the mo-ney advanced to complete improvements, ithe -money advanced -for that purpose i-s equivalent 'to purchase money, and -it is not necessary for the wife to join in the mortgage</p> <p>3. Payment — Application of Payor. — If a debtor owes to his creditor two or more -debts it is always the right of the debtor to designate the debt to which he desires a payment to be applied; but if there be n-o -such designation by the debtor, then it is the right -of the creditor, where n-o equities intervene involving the rights of third parties, to apply the payment to such debt as -he may select. 1-f there has been no application -by either party, it is the -duty -of the court to apply the payment to unsecured debts.</p> <p>4. -H-omestead — Payment—Subjection by Creditors. — If one 'buys a homestead on credit and before it is paid for contracts other debts, -the payments -on the homestead after 'the other debts are contracted may be subjected by the creditors, to that extent, to t-he ■payment of such debts. But -where the debts are contracted before'tbe purchase mon-ey for the homestead is fully paid, hut no part thereof lias been paid since the debts were so contracted, there is no equity entitling the holders of such debts to subject any right in the homestead.</p>

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

<p>1. Indictment and Information — (Insufficiency of Accusations. — An indictment under the provisions of section 129 of the Criminal Code, in order to be good, 'should 'aver that the offense charged was committed before .the finding of the indictment, except where a named prior date for the commission is 'contained therein, and where there is mo named prior date and .no averment .that the commission was before the finding of the indictment, it is insufficient and subject to demurrer.</p> <p>2. Larceny — Instructions.—An instruction in a prosecution for larceny should require the jury to believe, among other things, that the taking of the property by the defendant was “with the intention to .permanently deprive ‘the owner 'thereof,” since such intention on the part of the defendant is necessary to .constitute the crime of larceny.</p>

<p>1. Trusts — Sale by Trustee and Cestui Qui Trust Jointly. — Where an instrument creating a trust does not either expressly or iby necessary implication forbid a -sale of the -trust property -under the conditions existing -at the time of 'the sale, a v-al-id sale and -conveyance may be made by the -trustee -and cestui qui tru-s-t jointly, or -separately to the -same pers-on, in all -ca-ses where the ce-stu-i qui trust i-s sui juris, and the latter may by acts and conduct r-atify a sale of the property by the -trustee only, -and if -s-uch acts -a-nd conduct are sufficient to constitute an estoppel, a good title will pass.</p> <p>2. Trusts — -Conveyance by Cestui Qui -Trust. — Where the trust, according -to its -terms, was t-o -continue for the life of the -cestui qui -trust, who, under 'the terms Of -the will creating it and -by virtue ■of conditions subsequently arising, became the -owner in remainder of the trust property the .two interests became merged and a properly executed deed by the cestui qui trust would convey a good equitable title -to the -property which would be made legally perfeci in all respects by a conveyance from the trustee, either jointly with the cestui qui trust or separately.</p>

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

<p>1. Evidence — ■Photographs.—Photographs shown to he accurate, hut taken after an accident has occurred and purportin'? to show ¡.he location of moving objects at the time of the accident according to the recollection of a witness to the accident, are incompetent as evidence, since they are in effect merely corroborative of the witness Who indicated the locations and .are in -the nature of self-'serving statements.</p> <p>2. Evidence — Photographs.—Photographs of the scene of an accident, showing the location of permanent objects about which there is no dispute, are competent as an aid to the jury in arriving at an intelligent understanding of the situation at the time the accident occurred.</p> <p>3. Highways — Motor Vehicles — Negligence of Driver — Instructions.— Where a statute requires that the driver of a motor vehicle signal its approach to one on a public highway, the court should define ■the driver’s ¡duty in that respect in the instructions given, and the failure to do so where such an instruction .is offered is error.</p> <p>4. Highways — Motor Vehicles — Signals.—(Evidence examined and held to ¡be sufficient to require the giving of an instruction to the jury defining the duty of the driver of a motor vehicle, as provided by a statute then in effect, to signal its approach to one walking on a’ public highway.</p>

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

<p>1. Municipal 'Corporations — Street Construction — Assessments.—[Section 3706 of Kentucky Statutes prohibits the levying of local assessments for the construction or reconstruction of sidewalks, curbings, streets, etc., in excess .of 50 per cenitum of the value of the ground after tlie improvement is made, excluding tie value of tie 'buildings and other improvements on tie property improved.</p> <p>2. Appeal and Error — Finding of Chancellor. — Evidence examined and held to support tie finding of ,the chancellor as to .tie value of tie property assessed for tie cost of constructing improvements under section 3706 of Kentucky Statutes.</p>

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

<p>1. Master and Servant — Negligence—’Evidence—Waiver.—Tlie petition herein for damages for the alleged negligent 'death of an employe on the railroad owned hy the C. & O. Railway 'Company, averred that decedent and those whose negligence caused his death were employes of the C. & 0. Ry. Co., hut alleged further that said railroad was at .the time being operated toy and under the control ■of the Director ’General of Railroads under the Federal Control Act. The owning company was dismissed upon the ground it was not liable because the petition showed the road was at the time toeing operated by the Director General. A demurrer by the latter was then overruled. Held this was not error, and if it had been it was waived by answer which did not deny the alleged negligence and offered to confess judgment therefor but for a smaller amount than that alleged in the petition.</p> <p>2. Master and Servant — Federal Employers’ Liability Act — Value of ¡Services. — The recovery -allowed by the Federal Employers’ Liability Act is -limited to the present value of the pecuniary loss sustained by dependents, 'and -a •calculation based upon his probable earnings for the period of his-' expectancy, while n-o.t conclusive,</p> <p>’ furnishes a ¡basis for an estimate to be 'considered in determining whether a verdict is excessive, to which ’should toe added the proven value of the personal services of decedent to his beneficiaries which they might have reasonably received from him and which can only toe supplied by the -services of others for compensation.</p> <p>3. Master and Servant-Federal Employers’ Liability Act — Excessive Da-mages. — Verdict under Federal Employers’ Liability Act of $25,-000.00 -for negligent death of -section hand 4-9 years- of age and -earning $60.00 a month, whose dependents consisted -of his widow and five children from .two to eleven years of age, held excessive.</p> <p>4. Master -and ¡Servant — Federal Employers’. Liability Act — Evidence. — ¡Since a recovery under the -Federal Employers’ Liability Act may include the present value of the personal services the 'beneficiaries might reasonably have anticipated from decedent, testimony .thereof is competent; but evidence of the value of 'benefits beyond the proven ability of decedent to bestow was not competent, and its admission prejudicial.</p>

<p>1. Criminal Law — Accidental Killing — Evidence.—‘Evidence examined and the verdict held not to he flagrantly against the weight of the •evidence on the issue whether a shooting was accidental.</p> <p>2. Homicide — Substantive Evidence — Motive.—On the trial of one charged with homicide, where the defense was he had accidentally shot the deceased, who was -his sweetheart, evidence of previous occurrences between them hearing upon the question of motive and on the issue whether the 'killing was accidental was substantive evidence on those issues, and therefore admissible, although it involved a statement of facts showing the commission of another ipublic offense by defendant.</p> <p>3. 'Criminal Law — Impeachment of Witness. — Questions d&signed to lay the foundation for impeaching certain statements of a witness must fix the time, place and circumstances and -the persons present when the alleged contradictory statements were made.</p> <p>4. Criminal Law — Defense of Accident — llnstructions.—-The failure of the court in its instruotion submitting the defense of .accident, to require the jury to believe “from the evidence” that defendant shot •and killed deceased by accident, was not prejudicial error against him, for it 'authorized the jury to acquit him if they believed the ishooting to be accidental whether -they so believed from the evidence or not.</p> <p>5. Criminal Law — Instructions.—It was not error against the defendant, Whose only defense was that the shooting was an accident, in giving instructions on murder and voluntary manslaughter to use the customary phrase in such instructions “and not in his neces- ' ®ary or reasonably apparent necessary self-defense,” such expression being merely descriptive of those 'crimes.</p> <p>6. Criminal Law — Continuance.—The court did not -abuse its discre-’ tion in -overruling appellant’s motion for a continuance based on affidavits of physicians as to his physical condition where the record shows defendant thereafter attended the trial, testified intelligently, and suffered no physical misfortune hy reason thereof.</p>

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

<p>1 'Counties' — Elections—Previous Election Not Bar to Another Submission. — An election under section 4307, Kentucky Statutes, may toe ordered to be held, whenever the requisite number of freeholders petition therefor. A previous election upon the same question although recently held is not a bar to another submission.</p> <p>2. Counties — Elections—Designation of Jtoads -and Bridges. — A petition for an election under section 4307, Kentucky Statutes, is not ¡invalid, because it designates the roads and bridges to be constructed with the bonds, if authorized, where such condition is -•not prohibited toy statute, and the order for the election, if it contains the conditions prescribed in the petition, is not invalid.</p> <p>3. /Counties — Elections—Petition for Bearing no Date. — A petition for an election under section 4307, Kentucky Statutes, is not invalid, because bearing no date. The date of it is .when it is filed in the county court.</p> <p>4. Counties — 'Elections—Court ¡May JTix Date. — The petition for an election under .section 4307, Kentucky ¡Statutes, is not invalid because it does not name a day for the election, but the court may fix the date, within the time prescribed by law.</p> <p>5. Counties — Elections—¡Separate .Petition's.' — A number of separate ¡petitions, exactly similar in their contents, will be considered one petition, under section 4307, Kentucky 'Statutes, and 'if ¡all of them together are .subscribed toy ¡the requisite number of qualified persons, it will be sufficient to give the court jurisdiction.</p> <p>0. iCountie's — Elections—Advertisement.—(Where 'the order of the ¡county court calling the election properly directs the sheriff as to ¡the manner of its advertisement, it will be presumed that the election was properly advertised, in the absence of any averment or proof to the contrary.</p> <p>7. ¡Counties — .Elections—Duty of ¡Sheriff. — The .sheriff who holds an 'election called under section 4307, Kentucky 'Statutes, is not required by law to make any report .of the manner, in Which he held ■it.</p> <p>8. Counties' — Elections—¡Preparation of Ballots. — ¡Where the order of the county court calling an election under section 4307, Kentucky Statutes, directs the county ¡clerk to ¡prepare the ¡ballots, it Will be presumed, ¡in the absence of any .showing to. the contrary that they were ,properly ¡prepared.</p> <p>9. ¡Counties — ¡Elections—.Certification of Result. — Neither the county court, nor the election commissioners have ¡a duty, to adjudge what was the result of an election held under section 4307, Kentucky ¡Statutes. The election ¡commissioners must certify the result intelligently .and .place -it upon the records which the law requires them to make for that purpose.</p> <p>10. 'Counties — Elections—¡Certification of Result. — The election commissioners are not required to certify the result of an election ¡held under section 4307, Kentucky Statutes, to the fiscal court.</p> <p>11. ¡Counties — Creation of ¡Indebtedness — ¡Construction of Roalds and ■Bridges.. — 'Under section 157a of the ¡Constitution and section 4307, Kentucky Statutes, the fiscal court may be authorized to create ■an .indebtedness for the building, ¡construction and reconstruction ¡of roads and bridges, not in excess of five per centum of the assessed value of the .property of the ¡county, subject to taxation for ■county purposes, but, the indebtedness, if not bonded, must not be greater than the proceeds .of a twenty cents tax levy will pay, in the year in which the indebtedness is created, and if bonds are issued under section 4307, supra, a larger amount of bonds can not be Issued than the twenty cents tax will pay the interest on and ■create a sinking fund, which will liquidate the principal, within the time, they are to be -paid.</p> <p>12. Counties — ¡Creation of Indebtedness — (Bonds—¡Taxation.—¡The twenty ¡cents tax, authorized by .section l¡57a of the ¡Constitution can not be used for any ¡purpose except to pay the interest on the bonds authorized by ¡section 4307, Kentucky ¡Statutes, if any, and to pay the principal when due, but, if there is ¡more of the ¡funds arising from such, a tax, than is necessary to take .care of the bonds, then it may he appropriated for any indebtedness arising from the construction of roads and bridges.</p> <p>13. ¡Counties — Creation of Indebtedness — ¡Bonds.—¡The fiscal court may, if it sees fit, appropriate a part of the funds arising from the fifty •cents tax for general purposes, authorized by ¡section 167 of the Constitution, to taking care ¡of bonds, authorized by section 157a of the ¡Constitution, but, it is not required to do so</p> <p>14. ¡Counties — Elections—¡Creation of Indebtedness. — An election authorizing the fiscal ¡court to create a debt, does not create the debt, but, the debt is made, when the -indebtedness is incurred by issuing bonds, or entering into some obligation to pay, and the amount of indebtedness which 'is authorized by sections 157, 157a and 158, cf the Constitution must be ascertained from the value of ■the taxable ¡property, when a debt is incurred.</p> <p>15. ¡Counties — ¡Construction of Roads and ¡Bridges. — In ordering the construction of roads and bridges and making appropriations therefor, the powers of the fiscal court ar.e legislative, and it can set aside or amend such, orders, if 'contractual rights have not become involved.</p>

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

<p>1. Master and Servant — 'Recovery Under Compensation Act — 'Action Against Third Person — Evidence of Recovery Under Compensation Act not Admissible in Action Against Third Party Whose Negligence Caused the Injury. — Evidence that an employe had received eampen'sati'On from his employer under the workmen’s compensation aot is not admissible in an -action against a third party whose •negligence caused t-he injury</p> <p>2. Evidence — Evidence not Excluded When Counsel is Permitted to Interrogate Witness. — Where counsel was given an opportunity to interrogate a witness -but refused to do so, the contention that the evidence was excluded from the jury is without -merit.</p> <p>S. ¡Municipal -Corporations — Statu-te Regulating ¡Speed in Going Around -Corner, -Curve or -Crossing Held to A-ply to Motor Vehicle Crossing Street Intersection.. — ¡Kentucky Statutes, section 2739, subsection 9, regulating -the -speed of motor vehicles "in going around the -corner, ¡curve or crossing in a highway,” applies to one ¡driving across a street intersection.</p> <p>4. Appeal and Error — Necessity of Objections in Trial Court — Defect of Parties. — An objection for defect of parties cannot be made for the first time in the Court of Appeals.</p>

<p>¡Prohibition — Discretion of Magistrate. — A writ of prohibition will be granted 'by this court in an original action to stay a circuit judge from interfering with a magistrate in the exercise of a discretion within his jurisdiction, although his decision ibe erroneous.</p>

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

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

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

<p>1. Criminal Law — Argument of Counsel — Waiver.—Whether an error growing out of prejudicial and irrelevant remarks of counsel in his opening statement to the jury is waived by failing to procure a ruling of the court on objections thereto (as is true with reference to incompetent testimony) need not be determined in this case, since the defendant who objected to the remarks introduced at the trial practically all the testimony sustaining them and can not therefore be heard to complain of their impropriety.</p> <p>2. Burglary — Evidence.—It is also unnecessary to determine whether a clerk or a bookkeeper who possessed keys to the building alleged to have been feloniously broken into and who entered the building with the keys after business hours and took therefrom property of value which belonged to another, is or not guilty because his possession of the keys was with the consent of the owner of the building, or rendering the entry lawful and not felonious, since there is abundant evidence to show that the entry was effected by forcibly [breaking the doors and not with the use of the keys.</p> <p>3. Burglary — Elements of Crime. — While one -may not be -guilty of burglary or housebreaking if the entry was made exclusively with the intent and purpose of procuring his .property which was in the building and upon which the owner of it had no lien or other interest, yet if other property not belonging to the entrant was taken therefrom and appropriated by him with the intent to convert it to his own use and to deprive the owner of it, the crime is committed.</p> <p>4. Burglary — Housebreaking—Evidence.—In this case the defendant claimed to be the bookkeeper of the owner of a tin 'shoip in the rear of which was a room equipped for dwelling purposes. The defendant had keys to the building as well as to the dwelling room, in the latter of which was stored some of her property. About dark and after business hours the glass in the outer door was broken and there was evidence that the lock on the door to the dwelling ■apartment had also been broken and defendant was found in the house from which she had taken not only her own goods but other articles not belonging to her, some of which according to the testimony, she denied having taken but which were never recovered. Held that the verdict convicting her of the statutory offense of housebreaking is supported -by the evidence, and the court did not err in refusing to instruct the jury to acquit her.</p> <p>5. Burglary — Housebreaking—-Instructions.—The statutory -offense of housebreaking, as denounced by section 1162 of the statutes, is closely related to the common law offense of burglary and is a degree of the latter offense. It was therefore proper for the court to instruct the jury upon and for it to convict the defendant of the statutory offense in her trial on an indictment charging her with burglary only.</p>

<p>1. Evidence — Proof of Negative — Burden of Proof. — The general rule is that where a negative is essential to the existence of a right the party claiming the right has the burden of proving such negative and mere difficulty or inconvenience in producing such proof will not relieve against the rule. However, the burden may be discharged by even slight circumstances from which a presumption of fact would arise which if true would establish the negative. If, however, the opposing párty possesses plenary power to produce the proof of the fact and the case he such that it is quite, if not wholly, impossible for the one possessing the burden to prove it, it then becomes the duty of such opposing party to adduce .the proof in his possession.</p> <p>2. Insurance —Existence of Premium Note — Presumptions.—A statement sent to the insured by the company showing what would he ■due at the next premium date and containing no statement oif an outstanding note for a prior premium would, pérhaps, .be sufficient to raise the presumption of fact that no such outstanding note existed; but in order to have that effect it must first appear that the statement was either actually sent by the company, or that it was on the usual form of the company which it employed for that purpose and from which it might be inferred that it was so sent by it.</p> <p>. 3. Insurance — Automatic Extensions. — Where the language of the policy granting automatic extensions after default expressly withholds .them unless prior premiums or notes executed therefor are paid there can he no aliquot part of an extension for a corresponding aliquot -part of the payment of the .premiums since the payment ■of the whole of it is required before any extension is given.</p> <p>4. Insurance — (Premiums—Payment—-Burden of Proof. — A life insurance policy provided that upon default in the payment of any premium after the payment of the third one, the policy would he automatically extended for a designated period after the ful-1 payment of each premium upon condition, however, .that the insured was not indebted' to the company at the time of making default for any premium or part of a premium, or for any sum for which the (policy was pledged as security. The extension given aifter the payment of the third premium was 10 years and 66 days and after the payment of .the fourth premium it was 15 years and 98 days. Default was made in the payment' of the fifth premium and the insured died about 13 years thereafter. In a suit on the policy by ■the beneficiary it was alleged that there was no outstanding note tot the character mentioned at the time of the default which the answer denied, and affirmatively alleged that a note for $10.00 ■executed in part .payment of the fourth premium was never paid, the execution of which the reply admitted but alleged that it was paid. Held, that the ¡burden was on .plaintiff to show that the note was paid in order to be entitled to the given extension after the payment of the fourth premium.</p>

<p>1. Mechanics’- Liens — -Improvements-—Enhanced Value. — The appellant, by representating to the appellees that he had sold and assigned to the Arrowhead Oil Company an oil lease on 100 acres of land, and advising them to contract with that company to that end, induced the appellees to enter into a written contract with the Arrowhead Oil -Company to drill for it on the leasehold mentioned an oil well at the agreed price of $3.00 per foot and $25.00 -per day iby way of compensation for -such delay in the drilling as might result by fau-lt of the oil company; and, after having drilled the- well to -a depth of 222 feet, the appellesswere stopped from further work -thereon by the oil company’s abandonment of the lease and restoration of the leased premises to the -appellant, without compensating appellees for th-e drilling they had done on the well or for the delay in such drilling caus-ed by its fault. Held, that the appellant was estop-ped by the foregoing facts from resisting' the enforcement by the appellees of a lien, previously filed and perfected under sec. 2464, Ky. Statutes, upon the property -and property rights -covered by the appellant’s lease, for what was due them for the well drilling they did under their contract with the Arrowhead Oil Company, to the extent that the actual value of the -property w-as enhanced by the improvement thereof resulting from the drilling performed by them on the well.</p> <p>2. Estoppel — Equitable Estoppel.- — -The doctrine of equitable estoppel extends to real and personal estate, and is bottomed on the theory that a person who has induced -another to believe and act in a certain manner will not afterwards be permitted to injure or prejudice in his rights su-ch person, because of the acts done under the belief that they were consented to. And where one or two persons must suffer by the act of a third the one who enabled the third person to occasion the loss must sustain it.</p> <p>3. Mechanics’ Liens — Improvements—Enhanced Value. — As the lien allowed the appellees by sec. 2464, Ky. Stats., is enforceable only to the extent that the well drilling done by them enhanced the actual value of the lease and property thereby included, the action of the circuit court in adjudging its enforcement as to the $500.00 of their demand claimed for the twenty days they were compelled by the Arrowhead. Oil Company’s fault to discontinue drilling, must be held reversible error. No increase in the value of the property could have resulted from appellees’ discontinuance of the drilling of the well. The provision of their contract with the oil company making the latter responsible -to -them for such loss of time is a penalty enforceable only a-s between tbe parties tbemselvs. Tbe statute allows no lien for it.</p>

<p>1. Master and Servant — Defect in Mine — Negligence—Notice.—It is negligence for those in authority in the operation of a mine to leave a lmown dangerous place' therein without putting up a notice ■ of some character, or leaving a signal of some kind to warn others from that -place; especially, where the rules of the -company require such action.</p> <p>2. Master and Servant — -Defective 'Condition of Roof of Mine — Neg ligenoe. — After -the dangerous condition of the roof in a coal mining room h-ad been called to the -attention of -certain officials in authority, it was negligence for them not to warn, in person, an employe seen by them to be going in the direction of that room, an-d only a short distance from it.</p> <p>3. -Master -and 'Servant — -Defective Condition of Roof of Mine — Instructions. — In -an action where there is no defense in the answer -alleging the obv-ious'ly danger'ou's condition of the roof which fell upon and killed dece-dent, but, on the contrary, there is a denial that the roof was in a -dangerous or unsafe condition, defendant was not entitled to have embraced in the instructions the idea that if the roof was in such an obviously dangerous condition that the knowledge of suich d-anger must be imputed to the plaintiff, -so as to defeat his recovery.</p> <p>4. Miaster and Servant — -Instructions.-—The instructions are analyzed -and held to have, in effect, submitted -that issue.</p> <p>5. Appeal and Error — Argument of Counsel. — Improper argument of counsel for plaintiff intended to arouse -the sympathy of the jury is held not to- be prejudicial where the icourt promptly sustained -an objection to the argument, and directed the jury not to consider if, and thereafter, -a second time, in effect, admonished the jury not to consider the same in making up their verdict.</p>

<p>1. Deeds — 'Undue Influence — Mental Capacity. — The laiw looks with suspicion upon transactions between persons sustaining confidential relations toward each other, and where a father, who is old and physically infirm, conveys his land to a son who has cultivated his land and helped him look after his affairs, the burden is upon the son to show that the transaction was freely and voluntraily entered into and devoid of any vice rendering it inequitable or unfair, when the deed is attacked upon the ground of undue influence and mental incapacity.</p> <p>2. Deeds — Setting Aside — Evidence.—Where the evidence does not show clearly that the price paid was adequate and does show •that the grantor hardly knew what he was doing when he executed the deed, and where the son was doubtful of his father's icapacity to mhke the deed and had been advised it would be risky, the deed will be set aside.</p>

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

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

<p>1. Rape — Evidence.—Upon a trial for attempted rape upon a female under 12 years of age, her statement to an aunt more than two years after the alleged attack, accusing defendant thereof, held incompetent, and prejudicial where she is contradicted in tato hy the defendant and in part hy the only person, a playmate of her own age, to whom she told of the attack previous to telling the aunt.</p> <p>2. Rape — Evidence.—The verdict of guilt was not flagrantly against the evidence where defendant’s guilt of attempted rape was affirmed by the prosecuting witness and denied by him, even though she did not tell of it for more than two years except to a playmate under promise of secrecy.</p> <p>3. Rape — New Trial — Newly Discovered Evidence. — Newly discovered evidence that the prosecuting witness had voluntarily submitted herself to three youths at the time defendant is charged with the attempted rape, and in such a way as to account for the swollen and lacerated condition of her person that sh'e attributes to an attack by the defendant, held sufficient reason for a new trial, and that the trial court committed prejudicial error in refusing same for this reason alone.</p>

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

<p>1. Wills — Construction.—When Effective-. — By reason of section 4839, Ky. -Statutes, a will speaks and takes effect with reference to property passing under it, as if it had been executed immediately before the death of the testator unless a contrary intention appears in the will, and a devise of testatrix’s real estate to her son for life with the further provision that he should “be provided a home on the land I own and this land is not to be sold” except by order of co'urt for reinvestment, is not sufficient to show she intended the will should speak when written rather than at her death, so as to confine the devise to the son to the proceeds of the land she then owned but later sold, rather than to other land she owned and occupied as a home with her son at death.</p> <p>2. Wills- — Construction.—The testatrix having devised -all her personalty to her son absolutely, he took as- personalty such portion of the proceeds of the land owned by the testator when the will was executed which she later sold, and upon his death it passed to his heirs.</p>

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

<p>1. Work and Labor — Services—Consideration.—A party who avers that he was employed to perform certain services and that he did so for a named consideration, must sustain the allegations of his petition by evidence.</p> <p>2. Work and Labor — Compensation—Evidence.—in a case where there is a controversy between an employe and his employer as to compensation due, and neither of the parties has kept a reasonably accurate account of the days worked and the compensation paid, the master commissioner, to whom the case is referred for adjustment, may ascertain the number of days the plaintiff was actually engaged at the work from evidence showing the number of p'ages of record which he could reasonably make per day and the whole number of pages made by him during the per(iod for which he sues, and by dividing said last number by the number of pages which he could reasonably make per day, this ■being the most reasonable and accurate way under the circumstances to find the actual days employed.</p>

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

<p>1. Insane Persons — Suit toy Committee to Collect Money — Burden oí Prooí. — Where a committee of an insane person undertakes to col- . lect from a debtor of the imbecile money due from the sale of land made before the imbecile became non compos mentis, the burden is on the committee to show the indebtedness 'and the amount thereof, unless the facts are specially within the knowledge of the defendant.</p> <p>2. Insane Persons — Suit by Committee to Collect Money. — ¡Where the ■ debtor tendered to the committee the fu'll amount of the notes due but the same was rejected by the committee, and then proved by his books and ehecks that the amount theretofore paid subtracted from the original amount, left only the sum which the defendant tendered in court, the chancellor properly held that the committee was entitled to recover no more, she toeing •nnato'le to iproduce any evidence showing the indebtedness to toe greater.</p>

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

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

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

<p>1. Wills — Evidence.—Where testatrix and her sister owned real property jointly and lived together, making a common home, and the testatrix became afflicted with a malignant cancer and after her 'condition became hopeless and the physician began to prescribe morphine to alleviate the pain, the testatrix, in the absence of her only child, undertook to make a will giving practically all of her property to her sister who administered the narcotic, and the testatrix was shown to have been in' feeble physical and mental condition by reason of the disease as well as iby the use of the drug: Held -that the verdict of a jury, finding the paper made about one month before her death, and offered in evidence, not to be the last will of testatrix, is sustained by the proof.</p> <p>2. Wills — Instructions.—An instruction which directs the jury to find the testamentary paper in evidence to he the last will of testatrix, unless it shall believe from the evidence that said paper was mutilated by Lucy J. Gann, or some other person at her solicitation or request and with intent to render it ineffectual, then you should find the paper not' to be the last will and testament of Lucy J. Gann, does not properly state the law with respect to the cancellation of a will as set forth in section 4833, Kentucky Statutes.</p>

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

<p>-Sales — Action if-or Purchase Price — Warranty -of Quality — Fraud.— A retail merchant who receives a consignment of goods from a wholesaler, places them on his shelves and begins to dispose of ■tliem after having had full opportunity to examine the goods, eannot thereafter defend a suit for the purchase price on averments that the goods were not of the quality or kind ordered by him, unless he allege and prove that the wholesaler warranted the quality of goods, or that there was fraud perpetrated by the wholesaler, or the deficiency in the goods was latent and undiscoverable by a reasonable examination.</p>

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

<p>1. 'Counties — Construction of Highways — Jurisdiction of County Court. —A county court has jurisdiction to decline to undertake' the opening or construction of new roads or passways, and no appeal lies from its decision not to undertake suck work.</p> <p>2. 'Counties — Construction of Highways — Appeal and Error. — If a county court decides to undertake the work of opening or constructing a road, its orders thereafter are subject to appeal in such cases as are covered by sections 950 and 978, Kentucky Statutes.</p> <p>3. Overruled Cases. — In so far as the cases of G-ratzer v. Gertison, et al., 181 Ky. 626, and Wolfe, et al. v. Bailey, et al, 184 Ky 481, conflict with the foregoing rule they are overruled.</p>

<p>1. Contracts — Defense That it Was Signed Without Reading. — A party to a written contract cannot defend against its enforcement on the ground that he signed it without reading it, unless he aver ■facts showing circumstances which prevented his reading the •paper, or was induced by the statements' of the other parties to desist from reading it.</p> <p>8. Contracts — Duty to Read Before Signing. — It is the duty of a party, before signing a writing, to carefully read and understand it, and when the paper is prepared by the opposite party and brought to and left with the party attempting to defend against the writing, the latter is estopped to say that he did not read the writing before he signed it or that he did not understand its contents.</p>

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

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

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

<p>1. Municipal Corporations — Condition of Streets and Pavements.— A city is not an insurer of .the safety of persons traveling on its streets, but it is charged with the duty of exercising ordinary care to keep and maintain its streets and pavements in a reasonably safe condition for the public.</p> <p>2. Municipal Corporations — Defects in Streets. — Where a defect in a .public street has existed for several months, knowledge of such defect will be imputed to the city.</p> <p>3. Damages — Pain and Suffering. — The right of the plaintiff to an instruction authorizing the jury to assess damages for pain and suffering that it is reasonably certain plaintiff will endure as a result of the injuries sustained, is determined by the evidence as to the probability of future suffering and not by the permanency or non-permanency of the injury.</p> <p>4. Damages — Pain and Suffering — Instructions.—It was not error to refuse an instruction offered by defendant denying liability for increased suffering or extended disability resulting .from the failure to use reasonable diligence in caring for the injury, where there was no evidence to show that the injured person failed to exercise reasonable diligence in caring for the injury or effecting a cure of it.</p> <p>5. Damages — Excessive Damages. — A judgment for $4,000.00 damages for the breaking of an arm at the elbow, resulting in a -permanent deformity of the arm, loss of rotary motion, permanent inability to straighten it, and the consequent pain and suffering is not excessive.</p>

<p>1. Wills — 'Renunciation—'Election.—A widow may renounce the provisions of a will -in her favor and efleet to take dower and distributable share.</p> <p>2. Wills — (Disregarding Paper Purporting to be Deed. — After the death of a testator and the probate of the will, some of the heirs produced a paper purporting to be a deed from the testator and his first wife to certain of his children, leaving out of the deed the children by the second wife; although the deed was made in 1909, it was not recorded until 1919, and there were many other suspicious circumstances surrounding its execution, recordation and destruction: Hefld, that the -facts were sufficient to justify the court in disregarding the paper purporting to be a deed and distributing the property under the probated will.</p>

<p>Limitation of Actions — Effect of Pending Actions — Applicability of Section 2545, Kentucky Statutes. — Plaintiff’s cause of action occurred on June 27, 1918. He filed two suits, one on June 9, 1919, in J. circuit court, and one on June 10, 1919, in S. circuit court, and process was served in each case on defendants. S. circuit court liad jurisdiction and issue was joined. On October 9, 1919, plaintiff dismissed the suit in S. circuit court. On November 15, 1915, the suit in J. circuit court was dismissed for want of jurisdiction. On December 9, 1919, plaintiff sued in F. circuit court: Held, that section 2545, -providing that where an action has been commenced in good faith in any court, and it shall be adjudged that such court hail or has no jurisdiction of the action, plaintiff may within three months from the time of such judgment commence a new action in the proper court, and the time between the commencement of the first and last action shall not be counted in applying the limitation, did not apply, and the action in the F. circuit court was barred.</p>

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

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

<p>1. Appeal and Error — Master and Servant — Liability for Injuries — Instructions — When Error to Refuse a Concrete Instruction on As,sumed Risk or Contributory Negligence. — While abstract instructions presenting the defense of assumed risk or contributory negligence are sufficient where it appears that the jury could not have been misled thereby, the refusal of an offered concrete instruction grouping the facts constitutin ? assumed risk or contributory negligence is prejudicial error where such an instruction is necessary to present the defendant’s side of the case, and without such an instruction the jury might conclude that the facts relied on did not constitute assumed risk or .contributory negligence.</p> <p>2. Master and Servant — Liability for Injuries — Assumption of Risk-Contributory Negligence. — A lineman who handled live wires with buckskin gloves, after he had been warned by the master not to handle them without rubber gloves which were furnished for that purpose, not only assumed the risk, but was guilty oif contributory negligence, and no recovery can be had for his death if .the transmission of the current through his hand was the proximate cause of his death; and the effect of his conduct cannot be avoided by evidence of alleged experts that the gloves furnished were not sufficient to afford protection, as that fact, if known to him, might have furnished him an excuse for demanding better gloves, but, in view of the warning, did not justify his incurring the risk of taking hold of the wire without the protection of rubber gloves.</p> <p>3. Appeal and Error — Master and Servant — Assumption of Risk — Instructions. — In an action for the death of a lineman who handled a live wire with leather or buckskin gloves after he had been warned not to handle such wires without rubber gloves, it was prejudicial error to refuse a concrete instruction telling the jury in substance that if decedent knew of the danger, and, without the use of the rubber gloves which had been furnished> him, took hold of the wire and was thereby injured and killed, he assumed the risk and could not recover, as the jury, if not correctly advised, might hay© concluded that the facts relied on did not make out a case of assumed risk.</p> <p>4. Master and Servant — Death—Proximate Cause — Question for Jury. —In an action for the death of a lineman evidence considered and the proximate cause of his death held question for the jury.</p> <p>5. Master and Servant — Death—Instructions.—Where in an action for the death of a lineman it is admitted that the insulation was defective, and the evidence that he was warned not to handle the wires without rubber gloves was uncontradicted, the .court should instruct the jury to find for plaintiff unless they believe from tbe evidence that the transmission of the current through decedent’s hand wias the proximate cause of his death.</p>

<p>1. Counties — Bonds—Negotiable Instruments — Bond Paid and Canceled not Valid in the Hands of a Bona Fide Purchaser for Value.- — ■ Where a bond issued by a county was paid and cancelled, it ceased to be a legal obligation, and the removal of the cancellation marks did not restore its validity even in the hands of a bona fide purchaser for value.</p> <p>2. A-ppeal and Error — Appellant cannot Complain of Error in his Favor. — Where an error in the instructions is favorable to appellant, he cannot complain thereof.</p>

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

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

<p>1. Criminal Law — Conspiracy—Evidence—Overruled Cases. — It is competent in a criminal prosecution to prove as a substantive fact an incriminatory statement made by a co-defendant or co-conspirator in the presence of the defendant and which he did not deny or reply to; provided the statement was made under such circumstances as to call for a response by him and he had an opportunity to do so, since his failure to do so creates an implied ratification of the statement which the jury may consider for what it is worth. The ¡case of Hayden v. Commonwealth, 140 Ky. 634, in so far as it holds to the contrary without the qualifying facts found in the case of Merriwe'ather v. Commonwealth, 118 Ky. 870, is overruled.</p> <p>2. Criminal Law — Instructions.—It is .the duty of the court in criminal prosecutions to instruct the jury upon every phase of the case for which there is any possible -basis in the evidence, including the right of self-defense in crimes wherein it -is involved; and where the testimony is entirely circumstantial and there is no eye-witness ito the facts of the commission of the crime, the self-defense instruction should -be given, and this is especially so if the condition of the location indicates a struggle or encounter. But this rule does not apply where the victim of the crime was not killed and testified that he recognized defendant /by his voice but could not identify him 'by -sight because of darkness, and neither defendant nor the prosecuting .witnesses testified to .any fact affecting the right of self-defense.</p> <p>3. Criminal Law — Eye-witnesses.—By the term “eye-witness” in the above rule is meant one Who was present at the place and time of the commission of the offense and became possessed of the knowledge of the facts to which he testified through one of the -five senses; hence a witness who identified the defendant as the criminal by his Voice,-with which the witness was .familiar, and who could not recognize the defendant because it was dark, may, nevertheless, be considered as an eye-witness.</p>

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

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

<p>1. Criminal Law — Appeal and Error. — Under an indictment 'charging them jointly and severally with the crime of murder, the appelIants were jointly tried and .convicted in the court T>elow oi voluntary manslaughter, .with -punishment to each of twenty-one years’ . confinement -in the penitentiary. But as by the action of the trial court each of -the several instructions given the jury was so worded as that they were required by them either to convict or acquit both -appellants, whereas, under correct instructions, they anight have found the conviction or acquittal of only one of them authorized by the evidence, such action of the trial court -constitutes prejudicial error compelling the reversal of the judgment as to each of the appellants.</p> <p>2. Criminal Law — Instructions.—On another trial oif the case the -trial court will add, in the proper -connection, to such of the inductions, as may be found necessary, the -following words, or such words as will convey their meaning: “The jury may find either of the defendants guilty and the other not guilty, -or they -may find both of -them guilty, or both -of them not guilty.”</p>

<p>1. Homicide — Impeachment of Witness — Evidence.—On the trial of the .appellant a statement of his son, an adult, made immediately after the shooting of the deceased by the appellant, to the effect that the latter shot deceased in shooting at him (the witness) and that he (the witness) then shot at appellant, was properly allowed to he proven by the several witnesses introduced in rebuttal by the 'Oommonwealth .for that purpose, as the son in previously testify- • ing on behalf of the appellant had, on cross-examination, denied making the statement to the witnesses referred to. The evidence ■in question was competent to discredit the son as a witness and contradict the testimony given by him in chief on behalf of appellant, and the jury were carefully admonished by the trial court to consider it for that purpose alone.</p> <p>2. Homicide — Dying Declarations. — The statement of the deceased, made .immediately after he was shot by the appellant and repeated before his death several hours later: “That Bill Thomas (the appellant’s son) was the person his father (the appellant) tried to kill; that he had to die in Bill’s place; and that be had • his hand up begging Jim Thomas (appellant) not to kill Biil when he shot him (deceased),” was properly admitted by the trial court as evidence because competent as a dying declaration, as it was made to appear from what he knew of the fatal character of bis wounds, what he said of his expectation of an early death, and the surrounding circumstances, that it was made by the deceased under a consciousness of impending death and without hope of this life.</p> <p>3. Homicide — Dying Declarations. — The exclusion by the trial court of the testimony of the witness,1 Pee, as to certain declarations claimed to have been made by appellant’s wife to the deceased and Bill Thomas shortly bfore the homicide, looking to the prevention -oí a difficulty between them and appellant, was not error. Such declarations of the wife, proven through another, were no more competent as evidence in the appellant’s behalf than would have .been her own •sworn statements as a witness; for the wife cannot testify for the husband, or .the husband for the wife.</p> <p>4. Homicide — Defense of Home — Instructions.—Instructions must be predicated upon the facts furnished by the evidence in the case; therefore to authorize the giving of an instruction by the trial court advising the jury in a .case of homicide of the law regarding the right of the defendant to defend his home from invasion by the deceased, there must be evidence requiring or justifying .such instruction. As in this ease, according .to the appellant’s evidence, it was injury to his person and not .to his home or its inmates that he .claimed to fear when he shot the deceased, the failure of the" ■court to give an instruction as to his right to defend his home was not error. The jury were correctly instructed as .to .the law of self-defense as well as on all other features of the case; hence were advised of all the law ncessary to their guidance in arriving at a verdict.</p>

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

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

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

<p>1. Pleading — Pacts Presumably Within Knowledge. — A .pleader is not permitted under section 1'13, subsection 7 oí the Civil Code to ideny knowledge or information sufficient to form a belief as to alleged facts, presumptively witbin bis knowledge.</p> <p>2. ¡Pleading — Denial of Knowledge or Information. — A 'denial of •knowledge or information sufficient to form a belief as to whether or not a designated street is a public street in a city, or whether or not resolutions an'd ordinances directing its improvement were .adopted by the city or published or recorded, or whether or ¡not the sidewalk in front of the property of the pleader complied ■with the specifications in the resolutions and ordinances directing the improvement of the street, is not a good denial, since all of ■those facts are within the presumptive knowledge of the pleader.</p> <p>3. Pleading — Presumption of Knowledge.- — Whatever it is the duty of a party to know will be presumed to- be within hi-s knowledge, and a denial of knowledge ¡or information sufficient to form a belief is not sufficient as to facts presumptively within his knowledge. He must deny or admit them under oath, otherwise his plea will be treated as a sham and of no effect.</p>

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

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

<p>1. Mortgages' — Law of Another Sitate. — An issue as to either the common or statutory law of another state, and the effect given thereto by such state, is one of fact smd must be proven as any other fact, since courts will not take judicial notice thereof; but •the testimony to establish the fact should be such as is permitted iby the forum as competent for -the purpose. However, such in. •competency either of the witness or the manner of giving his •testimony may be waived and if done the testimony will be accepted and such .credence given to it as it is entitled to.</p> <p>2. Mortgages — Removal of Property From Another State. — A duly executed and recorded chattel mortgage at the legal situs of the ' mortgaged property will be given the same effect in the state to which the property was subsequently removed as is given to it at the place where it was executed, if the property was removed without the consent of the mortgagee; but whether a like effect ■would ibe given if the mortgagee consented to the removal of the property is a question not decided.</p> <p>3. Liens — Removal of Property From Another State. — The purchaser of a piano in the state .of Georgia gave a written lien thereon to secure the purchase money which was properly executed and recorded in the county of his residence. He subsequently'removed the piano to Kentucky and claimed to have sold it to an innocent party. It does not appear that the seller of the piano consented .to the removal. Held, that as between the seller and the one to whom the purchaser sold it the lien of the former will prevail.</p> <p>4. Notice — Facts Putting Upon Inquiry. — Whatever puts one on inquiry amounts in law to notice, provided the inquiry becomes a duty, and 'in such case he is deemed to have notice of all facts which a reasonable inquiry in the discharge of such duty would have revealed.</p> <p>5. Mortgages — Duty of Purchaser From Mortgagor. — The purchaser of a chattel from a mortgagor was informed by the latter that ® mortgage had been executed on the property to a named person giving his address, but stated at the time that the mortgage debt had been paid. Held, that the purchaser from the mortgagor was in duty bound to make inquiry after he learned of the existence of the mortgage and if he acted alone on the information that the debt had been paid he did so at his peril and his rights must-be postponed to those of the mortgagee.</p>

<p>1. Deeds — Construction of Written Instruments — Intentio'n of Fur-ties. — The primary rule applied without exception in the construction of written instruments, including re’al estate conveyances, is ' to ascertain the intention of the maker -or makers and apply it if not repugnant to any rule of law; hut the intention so applied is one to be gathered from the' language of the instrument in the light of the circumstances of the parties and without doing violence thereto and not -a secret unexpressed intention. Suca intention, when so arrived at, will prevail over technical rules.</p> <p>2. Deeds — The Word “Children” — Meaning of — Intention of Parties. —‘The word “children” in a conveyance is ordinarily a word of purchase and not one of limitation, hut this rule is to be governed by the intention of the parties ascertained as above indicated.</p> <p>3. Deeds — 'Deed of Giift — Construction.—A gift conveyance by a near ■relative to a parent and his or her children will, ordinarily, be construed as conveying a life interest to the parent With remainder to his or her children, but this rule is subject to toe defeated by a contrary intention appearing.</p> <p>4. Deeds — The Word “Children”- — lAfter-ffi’orn ’Children. — ’The word “children” in conveyances will ordinarily be construed to include after-born children unless a contrary intention appears. In this case the conveyance was to a mother “-and her children, be they many or few,” which clearly indicates that it was the intention of the grantor to include after-horn children; and the deed being ■one of gift and -executed -by the grandfather to the granddaughter “and her -children” is 'Construed to -convey a life interest to the mother with remainder to all the children, including those unborn at the time of its execution.</p> <p>5. Deeds — Restraint Upon Alienation. — An attempted restraint upon alienation of a fee for the life of the vendee is null and void and will not he given effect.</p>

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

<p>Prohibition — 'Writ of Directed Against Justice of the Peace. — The Court of Appeals will not take jurisdiction of a petition for a writ of prohibition against a justice of the peace, tout the circuit court is open to one entitled to such relief.</p>

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

<p>1. 'Criminal Law — ¡Evidence.—-Evidence examined and verdict n-ot flagrantly against it.</p> <p>2. Ori-minal Law — Newly Discovered Evidence. — -Alleged newly discovered evidence as -to relative location of fixed objects at place -of the -difficulty, that could and should have been discovered as well before as after the trial, not ground for new trial.</p> <p>3. Criminal Law — Evidence—Impeachment.—The introduction of evidence out of order, not ground -for reversal where defendant did not object, and was permitted to contradict it and impeach the witness:</p>

<p>1. Gaming — Owner of Pool Room Liable for Act of Agent. — Under section. 1972, the owner of a -pool room held liable for act of bis •agent to whom be bad entrusted the operation of his business, in •permitting minor to iplay without written consent of his parent.</p> <p>2. Gaming — Permitting Minor to Play Pool — 'Evidence.—Appearance and testimony of boy 16 years of age that he was permitted to play on defendant’s table, sufficient proof -to carry case to jury upon the question of defendant’s knowledge he was under age, and sufficient to sustain verdict of guilt in absence of denial of knowledge by defendant’s agent in charge of his business.</p>

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

<p>1. Criminal Law — Trial of Indictment For Misdemeanor — Instructions. — In tbe trial of an indictment for a misdemeanor, if all tbe instructions taken together state fully the law of the case, the judgment will not be reversed on account of one of the instructions containing' a defect, which does not mislead as to the law of the case.</p> <p>2. 'Criminal Law — Motion to Set Aside Indictment — Review.—A decision of the trial court upon a motion to set aside an indictment, as provided by section 158, Criminal Code, is not subject to exception, nor review upon appeal.</p>

<p>Intoxicating Liquors — Illegal Transportation — Evidence Sufficient to Take 'Case to Jury. — In a prosecution for transporting intoxicating liquor in violation of the prohibition law evidence held sufficient to take the case to the jury.</p>

<p>1. Indictment and Information — Robbery—Assault With Intent to [Rob. — An indictment alleging that the defendant did unlawfully, wilfully, “feloniously, and with intent to rob T. A. McDaniel and iG. 'C. Woodson of money and things of value, assault and hold up .■said parties with a pistol and put them in fear,” sufficiently ■charged the offense defined and denounced as a felony by section 1160, Kentucky Statutes, the words “feloniously and with intent to rob” used in the indictment having the same meaning as the words “with a felonious intent to rob,” contained in the statute.</p> <p>2. Indictment and Information — Rule for Testing Sufficiency. — The Tule for testing the sufficiency of a-n indictment for a statutory offense is thus declared by the Criminal Code, section 136: “The words usied in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used.”</p> <p>3. Criminal Law — Drunkenness as Defense — Instructions.—Drunkenness as a defense or excuse for crime is not regarded by the law with favor; and if this defense is made, the defendant must support it by some evidence other than his mere word, when, as in this case, his word is contradicted by his own acts as well as ithe evidence of all other witnesses testifying. Under the evidence In thiis .case the failure Otf the trial court to give an instruction Ito the jury upon 'the question of drunkenness as a defense, was not error.</p>

<p>Criminal Law — Commonwealth Attorney Tesltifying Upon Trial of One he is Prosecuting.- — A Commonwealth's -attorney s-liould not be . permitted, as was done in this case, to -testify on the trial of a defendant he is prosecuting as to his investigations of offenses, including that for which defendant was on trial, and of has reasons for making an agreement with -a witness ‘against the defendant on ithe trial and upon whose testimony he was indicted, iwhereby he promised to an,d did obtain the release of the witness from jail upon 'the latter’s going before 'the grand jury and tesltifying to the facts upon which ithe Indictment against the defendant was found. As such evidence oif the Oomnuonwealth’s attorney -wais irrelevant and otherwise incompetent and, also, necessarily .prejudicial to ithe substantial rights of the defendant, the refusal -of the icourt -to sustain the latter’s objection to the same and exclude it from the jury, must be regarded as reversible error.</p>

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

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

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

<p>1. Criminal Law — Accomplices.—Under .section 241, Criminal Code, a conviction cannot be had upon the testimony oí an accomplice unless corroborated hy other evidence tending to connect the defendant with tihe commission of the offense.</p> <p>2. Intoxicating Liquors — Accomplices.—One who aids and assists in 'the unlawful manufacture of liquor is an accomplice under section 241, Criminal Code, and the uncorroborated evidence of such an accomplice is insufficient to .sustain a conviction.</p> <p>3. Intoxicalling Liquors — Evidence.—Where there is any competent evidence of a prolbaitive nature tending to establish, the guilt of the accused, even though the preponderance of -the evidence be to 'the contrary, it is the duty of the court to submit the issue to the jury.</p>

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

<p>1. Indictment and Information — Sufficient as to Time. — Where an. indictment alleges that a misdemeanor was committed upon a specific day, wbicb is within twelve months before the finding of the indictment, the indictment will be sufficient as regards the ■allegation as to time of the offense.</p> <p>2. Criminal Law — Arrest—Searches and Seizures — Evidence.—An officer armed with a warrant, issued upon an indictment, for the arrest of 'the .party, indicted, may search the party, when the arrest is made, and information acquired by such search lie competent ■evidence, against isuch parity in proof of any offense, which it may show him to be giuilty oif.</p> <p>3. Indictment and Information — Time of Commission of Offense.— Where an indictment iwas found on the 22nd day of February, 1922, for a misdemeanor, evidence .that the offense w.as committed some time in the year, 1921, .does not .prove that it was committed within twelve months before the finding of the indictment.</p>

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

<p>1. I-ndictiment and Informatóon — Joinder—Demurrer.—An indictmienit that attempts to join two or more offenses not embraced in section 127 of the Criminal Code of Practice is demurrable.</p> <p>2. Indictment and Information — Duplicity—Waiver.—Where the accused fails to demur to or otherwise attack the validity of an indictment, which iis defective for duplicity and also because it does not adequately charge any offense, but enters a plea of not guilty and iprOceeds to trial, treating the indictment'throughout •the trial and on motion for a new trial as though it properly Charged the offense o.f which he was convicted, 'he is to be re- ' garded as having waived the defects in the indictment, and cannot avail himself of them on appeal.</p> <p>3. Criminal Law- — Instructions—Written Instructions — Waiver.—Section 255 of the Criminal Code ¡requires the -instructions given by the -trial court to be in -writing, but in prosecutions for misdemeanors, if the accused fails to -object to the giving of oral instructions, the error is "waived.</p>

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

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

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

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

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

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

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

<p>1. Indictment and Information — Requisites and -Sufficiency of — Accusation. — An indictment in its accusative part must «barge the public offense for which it is intended to present the accused, and the descriptive part must state the facts which, if established by the proof, constitute the offense charged.</p> <p>2. Intoxicating Liquors — Requisites and Sufficiency — Accusation.— The accusation that one violated ‘‘prohibition law” is not a sufficient charge to meet the requirements of the Criminal Code, which .provide that the indictment must be direct and .certain as regards the offense charged.</p> <p>3. Intoxicating -Liquors — Defective Indictment. — An indictment which, in lieu of the accusative part, contains the statements, “Commonwealth of Kentucky against Ernest Forman,” etc., “of the offense or crime of violating prohibition law committed as follows, viz.,” after which is the descriptive part of the offense, does not charge an offense within the meaning of section 122, .subsection 2, and section 124 of the Criminal Code of Practice.</p>

<p>Intoxicating Liquors — Directing Verdict. — 'Where the indictment charged defendant with keeping for sale “malted intoxicating liquor, a concoction known as ‘home brew,’ ” and there was no evidence that the beverage kept and sold under that name by defendant was intoxicating or that the name “home brew” was a spurious name for beer or other malt liquor judicially known to be intoxicating, the court erred in refusing to direct a verdict for the defendant.</p>

<p>1. Intoxicating Liquors — Evidence.—Evidence !he'ld insufficient to prove an unlawful transportation of liquor by the defendant.</p> <p>2. Intoxicating Liquors — Character Evidence. — Evidence of the defendant’s bad character held inadmissible in a prosecution for transporting liquor under the .prohibitory act. adopted at the 1920 .session and subsequent to the time the offense was alleged to have been committed; declaring such testimony admissible in any prosecution under t'he latter act was not applicable.</p>

<p>1. Intoxicating Liquors — Sufficiency of Evidence. — Evidence (field sufficient to sustain tfie verdict finding the defendant guilty of having whiskey -in possession for sale.</p> <p>2. Intoxicating Liquors — -Evidence—Prejudice.—Evidence of previous .purchase of whiskey by -the prosecuting witness from an unknown person in a -pool room operated by another in the -same house in wh-icfi defendant conducts a hotel, field incompetent, and its admission .prejudicial where tfie other evidence -was nearly -evenly balanced and tfie court advised tfie jury it might be considered as -evidence that defendant had whiskey on hand at -the time charged in tfie -indictment.</p> <p>3. Criminal Law — Argument o'f Counsel. — Argument of -counsel, based upon -fa-cts not -disclosed ,by the record, improper.</p>

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

<p>1. Judgment — 'Rule Tlhat Judgment on a Matter Outside of the Issues is a Nullity Does Net Apply to Consent Judgments. — As the parties ■to a suit in a court of general jurisdiction may agree as to the subject matter of their litigation, and thereby waive the objection that the issue was not embraced by the pleadings, the general rule that a decree or judgment on a matter .outside of the issues raised hy the ©leadings is a nullity does not apply to judgments entered hy consent.</p> <p>2. Judgment — 'Consent Judgment Conclusive — 'Consent Judgment Can Only Be Vacated for Fraud or Want of Consent. — A judgment hy ¡consent is as binding on the parties as if it had been rendered after trial on the merits, the only difference being that a judgment by consent is not appealable, and can only be vacated for fraud or want of consent.</p> <p>3. Judgment — Validity of Judgment Releasing Expectancy. — Though prospective heirs may not make a valid conveyance of their expectancy in an uncle’s estate, yet a consent judgment releasing their expectancy, rendered by a .court having jurisdiction of the parties and the subject matter, is valid and binding on the ¡parties, and cannot he set aside except for fraud or want of consent.</p>

<p>1. Master and Servant — Workmen's Compensation Act — Original Ac'ceiptance Binding in Subsequent Employment Where Employe Returns Within a Reasonable Time. — 'Section 4957, Kentucky Statutes, provides: “If the employment 'be intermittent or he temporarily suspended, the original acceptance of the employe shall "continue effective in subsequent employment under the same employer. Held, that the 'statute applies in every case where the employe stops work for any cause whatever, and thereaftér returns to work for the same employer at the same place within a reasonable time, and that the employe’s original acceptance of the workmen’s compensation act 'continues effective unless he files with bis employer a written notice withdrawing his election as provided by section 49¡59, Kentucky Statutes.</p> <p>2. Master and Servant — Workmen’s Compensation Act — Constitutionality. — As the employe may withhold his consent in the first instance or withdraw an acceptance once made whenever he desires to do so, the foregoing coinstruction does not render the workmen’s compensation act unconstitutional on the ground that the employe -is deprived of the right of choice, or the provisions of the act are imposed on him against his will.</p> <p>3. Master and Servant — Workmen’s Compensation Act — ¡Original Acceptance Binding in Subsequent Employment — Reasonable Time. —Where an employe returns to work within nine weeks after he quit or was discharged, his return is within a reasonable time and his original acceptance of the workmen’s compensation act is binding unless withdrawn.</p> <p>4. Appeal and Error — Submission of Question to Jury Harmless Where Court Should Have Decided the Same Way as a Matter ¡of Laiw. — The submission of question to jury is harmless error where court should have decided the same way as matter olf law.</p>

<p>1. Libel and Slartder-^Wnrds 'Must be Given Oommon and Usual Meaning. — In a suit for slander, the alleged words roust be given their common and usual meaning unless they be localisms or provincialisms, in which case they should be understood to mean that which they usually import in that vicinity.</p> <p>2. Libel and Slander — Peremptory Instruction. — -Wihere the alleged slanderous statements, reduced to their last analysis, mean only that the y'oung lady about whom they were spoken was afflicted ■with a disease which caused her urine to pass in her sleep and the pleadings of the plaintiff admit that she was so afflicted, there is no cause of action; in suich case the court should peremptorily ■instruct the jury to find for the defendant.</p>

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

<p>X. Indictment and Information — Duplicity—¡False Swearing. — An ' indictment for false swearing which charges defendant with the crime of false -swearing committed at the same time in four or five different ways specified in the indictment, is not bad for duplicity; for a conviction on a trial under the indictment for false swearing in any one of the particulars designated would be a bar to another indictment charging him with the same offense -in any other of the particulars therein specified.</p> <p>2. Perjury — False Swearing — ¡How 'Charge Supported. — ¡Dt is the rule ¡of -evidenc'e in such case's that the charge must be ¡supported by •the -evidence iof two witnesses, or the evidence ¡of -one witness -supported by strong corroborative evidence. Such -support may be furnished by re-cord, by writing, or by facts and circumstances testified to by one other ¡than th'e accusing witness, tending strongly t'O corroborate his statement.</p> <p>3. Perjury — ¡False Swearing — idorrob oration. — ¡The defendant was charged with -testifying falsely that he had not said to -certain persons he was the owner of a certain still; evidence that he had made such a statement at a certain time and place to one of the witnesses is sufficiently corroborated by the evidence -of two other witnesses that on the same night, and near the same place, he had -made to them similar statements.</p> <p>4. Indictment and Information — 'Election.—As only one offen-se was charged in the indictment, the court properly overruled the motion to require the Commonwealth ¡to elect.</p> <p>5. Perjury — False Swearing — Evidence.—¡Under air indictment for false swearing a plea of “not guilty” put's in issue every material fact charged in the indictment, and it then becomes the -duty of the Commonwealth to prove beyond a reasonable doubt and in the manner required by law, every material thing necessary to -constitute defend'anf's g-uil-t.</p> <p>6. Perjury — Parol Evidence. — ¡If there is a record in existence of the .trial or proceeding in which the false testimony is alleged to have been given, it must be produced on the trial, and parol -evidence ¡of the pendency of -such a proceeding is incompetent in the absentee of the loss of such record.</p>

<p>1 Indictment apd Information — Joinder—Demurrer—Intoxicating Liquor®. — When an indictment charges the commission of two or more separate offenses, other than provided for in section 127, Criminal Code, it is subject to demurrer, but, if the attorney for the Commonwealth elects to prosecute the accused for one of the offenses, the demurrer should be overruled.</p> <p>2. Indictment and Information — Joinder—'Election.—(When an, indictment improperly Charges two or more independent offenses, and to save it from demurrer, the attorney for the 'Commonwealth elects to proceed against the accused for one of the offenses only, ■the indictment as to the other offenses should be dismissed, but, if not dismissed by formal order, they will be treated as surplusage.</p> <p>3. Witnesses — Impeachment.—A witness may be impeached by evidence of his general reputation for immorality, but not by his •general reputation for particular acts or a particular trait of character.</p>

<p>1. Appeal and Error — Becord and Proceedings Not in Becord — Oon-clusivenes® of Unimpeached Becord. — ‘The recitation in an order contained in the transcript of a record which stands unimpeached, that defendant in a criminal prosecution was duly served with process, is conclusive on appeal, even thofu-gh the process and return thereon are not shown in the -transcript.</p> <p>2. New Tri-al — Absence of Defendant — Failure of Attorney to Notify Defendant of Time of Trial Not Ground for New Trial. — It is the ¡duty of a defendant in a misdemeanor ease to attend hi® trial, and if he elects to rely on the -promise of his attorney to notify him when the case i-s -called, the failure of the -attorney to Ikee-p his promise is not a ground for a new trial, unless it further appears that iSuoli failure was due to sicOmess or oilier cause whicli ordinary prudence could not have guarded against.</p> <p>3. Apipeal and Error — Matter Not Embraced in Grounds for New Trial Not R&viewaiMe. — Alleged error in giving oral instructions 'in a criminal ease not embraced lin grounds for new 'trial is not reviewaible.</p>

<p>1. Criminal Law — New Trial — Trial Court Must Resort to Affidavits Filed and Evidence Heard. — In determining whether or not a new trial should be granted, a trial court which has no personal knowledge of the matter can resort only to the affidavits filed and the evidence heard in open 'court.</p> <p>2. Criminal Law — iNew Trial — Accident and Surprise. — Where the Commonwealth’s attorney agreed to dismiss the case with the approval of the presiding judge, and so informed defendant who lived in another county, and defendant was thereby misled and prevented from appearing and making defense, the facts make out a case of surprsie that will authorize a new trial.</p> <p>3. Criminal Law — Appeal and Error — New Trial — Abuse of Discretion! — Where, in support of his motion for a new trial, defendant filed an affidavit that the Commonwealth’s attorney had agreed to dismiss the case with the approval of the presiding judge, .and he was thereby misled and prevented from appearing and making defense, and the affidavit was not only uncontradlicted, but was corroborated in a way by the .minute of the Commonwealth docket ■that the case was first set for trial on the 13th day of the term, and then “passed for Commonwealth’s attorney,” the trial court abused a sound discretion in refusing appellant a new trial.</p>

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

<p>1. Intoxicating Liqu-ors — Searches and Seizures — Evidence.—As on the trial of the appellant for unlawfully having in possession spirituous liquor for sale, the only evidence against him was that the liquor was discovered hy a search and seizure cl saddle pockets upon which he was riding; that the officer .making the search and seizure, though claiming at the time to have a search warrant, did not exhibit it to the appellant, or read or state its contents to him, and the contents of such warrant were not proved by its production on his trial, or otherwise shown Iby proof thereof and also of 'the loss of the warrant, all of such evidence was incompetent and should have been excluded by the trial court upon the objection made to it by the appellant.</p> <p>2. Searches and Seizures — 'Search "Warrant — Evidence.—As under the rule announced in Youman v. Comlth, 189 Ky. 152, neither the premises, baggage or personal effects of a citizen, can lawfully be searched, or what is thereby discovered or seized, used as evidence against him, without a valid search warrant authorizing it, ■ to justify such search Iby an officer of the Commonwealth and the use as evidence against the defendant of whiskey or other thing thereby discovered or seized, it must be established by the evidence of the Commonwealth that the search was made and the .property thereby discovered .obtained under authority conferred by a valid search warrant. And where, as in this case, such evidence was wholly lacking, the refusal of the trial court to direct a verdict of acquittal was reversible error.</p>

<p>1. Criminal Daw — New Trial.- — To authorize a court to grant a new trial on the ground of surprise, the defendant should show by convincing evidence that he was tahen unawares and did not have reasonable opportunity to meet the evidence of the Commonwealth on the trial, and the showing should also contain the substance of the evidence and the names of the Witnesses by whom he expects to convince the jury upon another trial of the correctness ef his contention.-</p> <p>2. 'Criminal Daw — New Trial. — Trial courts should be very careful in passing upon and sustaining motions for new trial. Where the facts shown in support of the application for new trial are of su-oh convincing and unerring character as to satisfy a reasonable mind schooled in the consideration of such evidence that on another trial of the case the new facts presented, would likely materially influence the verdict of the jury, the motion should ■be sustained and a new trial granted.</p> <p>3. 'Criminal Daw — Evidence.—Where the -Commonwealth offers evidence to support a finding, it devolves upon the defendant to contradict the statement so made.</p>

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

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

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

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

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

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

<p>1. Criminal Daw — New Trial — Evidence.—A prosecuting witness in a cniminal charge 'testified on the trial of the indictment that her testimony given before the grand jury Was false and that no such ■crime had ever been committed within .the jurisdiction of the court, and as a consequence a directed verdict of acquittal was given. At a subsequent 'term of the count 'the witness again preferred similar 'Charges before the grand jury covering the same period of time as .that included in the first indictment, but in .the meantime she gave ‘her deposition in a divorce proceeding filed bv her husband and 'in which she testified that no such accusations ever happened. 'She did not prefer her charges nor make them known to -any one for some isix or seven years and until after s'he had married and her husband had left her. It was1 also shown that 'both she and her husband were on unfriendly terms with the ■accused. Held, that a new trial after conviction would be authorized upon ithe ground that 'the verdict was flagrantly against the evidence, there being no other convicting testimony except that of the .self-impeached witness.</p> <p>2. 'Criminal 'Law — Jeopardy.—lit is a fundamental principle in criminal jurisprudence, and which is incorporated in our Constitution, section H3, -that no one shall be twice put .in jeopardy for 'the same offense, and jeopardy attaches in a jury trial when the jury .is sworn.</p> <p>3. Criminal Law — Jeopardy.—The plea of former jeopardy prevails, where allowable, whether the defendant was eonvic'td or acquitted on the first trial, and the fact that the acquittal was due to'a peremptory instruction directing it will not detract from the force off 'the plea.</p> <p>4. Criminal Law — Jeopardy.—For the plea of former jeopardy to be effective the offenses must ¡be legally identical, and they are so-when the .evidence a,nd the Instructions of the court on the first trial would have authorized the «'ame verdict on the second trial ■in which the plea Was . interposed; therefore, where defendant .was tried under an indictment charging him with incest and in which the prosecutrix, hiis daughter, testified that her father had never been guilty with her 'at any time or place, without .particularizing any time or .place, a verdict of acquittal will be a bar to a subsequent prosecution charging him with the same offense committed during the same time and .within 'the same territory covered by the testimony of .the witness1 on the first trial, .though the result would be different if the evidence on the first trial had been confined.to a specific time and place within the jurisdiction ■of the court, and the second trial was directed to a different time ■and place within such jurisdiction.</p> <p>6. -Criminal Law — Trial at Special Term — Agreement.—It is competent for parties by agreement to legally try a case at a special called term of court, though it was not mentioned in the notice or order of court calling the term (section 9.64 of Kentucky Statutes), and where the parties appeared and consented to and did •try a case at the special term the orders, judgment and proceeddugs titerein are Y'alid to the same extent as if tbe cas'e bad been dnctoded in the call.</p>

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

<p>1. False Pretense — Elements of Offense. — ‘The falsely represented or pretended fact whereby ione is ¡defrauded of his money or property must be a present or past one and not one to happen in the •future.</p> <p>2. False Pretenses — Elements of Offense. — 'The representation or pretense need not be express- but may consist in aniy aot, conduct, sign, symbol, or token by which another -is- deceived into parting with his property.</p> <p>3. False Pretenses — BUmente 'of Offense. — The false representation or pretense need not 'be .made 'by defendant in person, it being' sufficient, if made b.y another at his instigation.</p> <p>4. False Pretenses — Conspiracy.—W. had sold his crop of tobacco at a stipulated price. H., his neighbor, had an inferior -crop of tobacco and iworth much less- than W.’s. H. procured W. to deliver his tobacco as a pant olf the latter’® crop and, agreed to and did ipay him two cent's per pound for so (doing. When H.’s tobacco was delivered hiy W., pursuant to the agreement, he represented that lit was a part 'Of his crop iand collected the price agreed to be paid therefor which he afterwards paid'to W. less the agreed commission for perpetrating the fraud. Held, that the facts were .'sufficient to authorize the conviction of H. for the offense of conspiring to obtain property under false pretenses1.</p>

<p>1. Criminal Daw — New Trial — Setting Aside Default Judgment. — On ■tbe bearing of a motion entered at tibe same term to vacate and ■set aside a default judgment, tbe same strict showing is not required as in a subsequent 'proceeding after tbe term to set the same aside and grant a new trial, wr ¡in motion's for a new trial made in actions where the party asking the same was present in court and participated therein.</p> <p>2. Criminal Law — New Trial — Vacation of Judgment. — ■White in such proceedings the matter is largely within the discretion of the trial 'court, where the facts relied upon in an affidavit or 'affidavits in support off 'the motion are uncontroverted and no counter affidavits are offered or considered, the discretion consists1 in determining 'judicially whether the uncontroverfed facts justify the vacation of the judgment or the granting of a new trial.</p> <p>3. Criminal Lalw — New Trial. — An uncontroverted affidavit showing that the only reason defendant was not in court at the time the case was called, and when a default judgment was entered against him, was that he was ill and unable to be in court or .com© to the 'court, and that he had a good defense and could show it and that he was not guilty of the offense changed in the indictment, presented good ground to vacate -the judgment and grant him a new trial upon -the ground off unavoidable casualty or misfortune.</p> <p>4. Intoxicating Liquors1 — Requirement as to Execution of Bond.— The prohibition act off 1920 supersedes all other pre-existing anti-liquor laws, and 'there being no provision therein authorizing the ■court to require defendant to execute a- bond not 'to violate same ■in the future, such requirement was unauthorized and void.</p>