Volume 201 — Kentucky Reports

<p>1. Partnership — Petition in Action Between Partners Amended to Ask Settlement of Partnership Affairs. — One partner cannot’maintain a suit on a debt arising out of the partnership against another member of the firm while the partnership is carrying on; but if suit be brought by one partner against another on a debt growing out of a partnership which is defunct, additional averments may be made by way of amended petition, which would justify a settlement of the partnership affairs, in view of Civil Code of Practice, section 134.</p> <p>2. Partnership — Attachment Proper in Suit by One Partner of Defunct Firm Against Another. — Where one partner of defunct firm sued another partner for a debt growing out of the partnership business, and an attachment was issued and levied on property of the defendant, and subsequently the petition was amended to justify a settlement of the partnership affairs, it would have been error on the part of the trial court to discharge the attachment.</p> <p>3. Homestead — Residence on Property Necessary. — One was not entitled to be adjudged a homestead in lands descending from his father’s estate, where he owned and resided in a house and lot some distance away, and had never resided on the land descending to him.</p> <p>4. Descent and Distribution — Lands do Not Descend Charged with Indebtedness of Heir to Ancestor. — The distributive share of tha real estate of an heir, who is a debtor to the estate of his ancestor, is not chargeable with such indebtedness, either as land or . as the proceeds thereof in the hands of the administrator, and levy of attachment on such land by creditors of an heir, before administrator commenced action in favor of the estate, created a prior lien superior to that of the administrator under an execution.</p>

<p>Frauds, Statute of — Agreement Between Adjoining Owners as to Possessory Title to Strip Beyond Real Boundary Held Within Statute. — Where there was no bona fide dispute as to location of the real boundary, and the only dispute was as to whether one of the adjoining owners had obtained title to a strip beyond such boundary by adverse possession, an agreement between the adjoining owners as to the alleged possessory line constituted a parol surrender of the disputed lands, and was therefore within the statute.</p>

<p>1. Criminal Law — Whether Sale in State Held for Jury. — In a prosecution for sale of whiskey, which was delivered on bridge leading from Kentucky to West Virginia, whether the sale was made on the Kentucky side or the West Virginia side held for the jury.</p> <p>2. Intoxicating Liquors — Sale in this State May be Supported, Though Delivery in Another. — Where seller and purchaser of intoxicating liquor went out of the state over a bridge to West Virginia, in order that delivery might be effected there, the seller was none the less guilty of making a sale in violation of the laws of Kentucky, in view of Kentucky Statutes, section 2570.</p>

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

<p>1. Schools and School Districts — Municipal Debt Not Considered in Estimating School Debt. — Indebtedness of a municipality is not to be taken into account in estimating the indebtedness of the school board of the district, which covers the same territory.</p> <p>2. Schools and School Districts — Limit of Indebtedness Not Exceeded by Bond Issue. — Where the revenues which may be derived from an assessment at the highest allowable rate would be more than sufficient to take care of the interest charges on the existing and proposed school bonds, and to create a sinking fund to take care of the principal debt, sale of the bonds, will not raise the indebtedness of the school board or of the city beyond the constitutional limit.</p> <p>3. Schools and School Districts — Emergency Expenditures Covered by Budget Statute. — Emergency expenditures, such as that necessitated by the breaking down of the heating plant, amounting to $8,000.00, held a part of the legitimate school expenses intended to be covered by the statutes relating to budgets.</p> <p>4. Schools and School Districts — Delay After Vote Not Abandonment of Right to have Bonds Issued.- — A delay of three years by the board of education after bonds were voted, under Kentucky Statutes, section 3490, subsection 34, and section 3587a-20, before certifying the matter to the city council, held not an abandonment of the right to require the city to prepare and authorize the bonds, in view of conditions prevailing in the building trade.</p>

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

<p>1. Carriers — Connecting Carrier Only Liable for Injuries Occasioned by Negligence Occurring on Own Line. — Connecting carrier in interstate shipment, other than the initial carrier, is liable only for injuries occasioned by negligence occurring on its own line, in view of the Carmack Amendment to the Hepburn Act (U. S. Comp. St., sections 8604a, 8604aa).</p> <p>2. Carriers — Burden on Connecting Carrier to Show it was Not Negligent. — Under the Carmack Amendment to the Hepburn Act (U. S. Comp. St., sections 8604a, 8604aa) in an action against connecting carrier for damage to cattle, plaintiff need not allege and prove negligence occurred on connecting carrier’s line, the burden of proof being on the defendant in that respect.</p> <p>3. Evidence — ¡Burden of Proof on Party having Peculiar Knowledge. —When a particular fact necessary to be proven rests peculiarly within the knowledge of one of the parties, the burden of proof rests upon him.</p> <p>4. Carriers — Initial Carrier Agent of Connecting Carrier, and Latter Bound by Contract. — The initial carrier in an interstate shipment is the agent of the connecting carriers, and they are bound by its contract, and by the original contract and not by unauthorized notations made on the bill of lading.</p>

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

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

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

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

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

<p>1. Divorce — No Second Divorce on Ground of Abandonment. — A woman remarrying husband divorced for cruelty could not obtain a second divorce on the ground of abandonment for one year, under Ky. Stats., sections 2117, 2118.</p> <p>2. Statutes — Express Inclusion of One Thing Excludes Another Not Expressed. — The express • inclusion of one thing will exclude another that is not expressed. _ . • . .</p> <p>3. Divorce — Grounds of Second Divorce Restricted, Although Second Divorce Action Between same Parties as .in First Action. — Ky. Stats., section 2118, restricts the right to a second or more than one divorce to cases of impoteney, living' apart for five years, and adultery, and applies to a case where the wife is.seeking a divorce' from a husband whom she has remarried after previously obtain-' ing divorce from him. ‘</p>

<p>1. Intoxicating Liquors — Whether Defendant Made Sale Held for Jury. — In a prosecution for sale of intoxicating liquor, guilt of defendant held for the jury.</p> <p>2. Criminal Law — Verdict on Conflicting Evidence Conclusive. — Verdict of conviction based on conflicting evidence is conclusive on appeal.</p> <p>3. Criminal Law — That Witnesses were Policemen Employed for Entrapment went Only to Credibility and Not to Admissibility.— That witnesses testifying, to unlawful sale of intoxicating liquor were special policemen employed for the purpose of entrapping unsuspecting bootleggers went alone to the credibility of their ■ evidence, and did not warrant the court in excluding the evidence or of withdrawing the case from the consideration of the jury.</p> <p>4. Criminal Law — One Employed to Entrap Violators of Prohibition Law Not Accomplice. — One employed by a city to entrap violators of the prohibition law by the purchase of liquor is not an.accomplice under Criminal Code of Practice, section 241, requiring accomplice evidence to be corroborated.</p>