Volume 203 — Kentucky Reports

<p>1. Pleading — Demurrer Waived by Not Having Court Rule. — Demurrer to petition was waived by defendant not having the court act on it.</p> <p>2. Railroads — Killing of Animal Must be by Collision to Raise Prima Facie Case of Negligence. — Killing of stock on railroad track must be shown to be the result of actual collision before a prima facie presumption of negligence of railroad arises under Ky. Stats., section 809, but collision may be proved by circumstances.</p> <p>3. Railroads — Evidence. as to Negligence in Killing Horse Insufficient to go to Jury. — In an action for value of horse killed, evidence as to negligence held insufficient to go to the jury, notwithstanding contention that Ky. Stats., section 809, raised a prima facie presumption of negligence.</p> <p>4. New Trial — -Properly Denied on Ground of Newly Discovered Evidence. — The court did not err in denying a new trial for newly ' discovered evidence of a man whose wife was the stenographer in the case, and testified as a witness, where affidavit was made by defendant’s counsel alone, and none was filed by any agent or officer of the corporate plaintiff.</p> <p>5. New Trial — Counsel should Offer to Introduce Evidence Discovered Before Verdict Returned. — If discovery of evidence was made before verdict was returned, it was party’s duty to offer to introduce it and get the benefit of it, and, having failed to do so, such party is not entitled to a new trial on the ground of newly discovered evidence.</p>

<p>1. Master and Servant — Compensation Board Without Jurisdiction to Credit Against Award Expenses of Defending Common-Law Suit. — Neither the Compensation Board nor the court has jurisdiction, under Workmenis Compensation Act (Ky. Stats., sections 4940, 4943), to credit on award amount expended by insurer in defending a common-law action by the employee against, the employer, especially in view of section 4913, rendering claims for compensation unassignable and exempt from claims of creditors.</p> <p>2. Exemptions — Exempt Property May Not be Subjected Indirectly by Set-Off. — Exempt property of a debtor may not be subjected indirectly by appropriating it in satisfaction of a set-off, any more than it might be done upon a judgment obtained on the set-off in an independent action.</p>

<p>1. Execution — Leasehold Interest Held Subject to Sale for Debts.— A lease for five years to A. “and his associates” and to the successors in partnership with him, which provided that “contract is to expire in the event of the death of the first party or of second party A. at the option of the survivors of this partnership,” held not to terminate when A. ceased to be a lessee, and hence leasehold interest was subject to sale for payment of lessees’ debts.</p> <p>2. Execution — Adjudication of Facts in Judgment Need Not be Repeated in order Directing Sale. — It is obligatory upon court to fix and determine the facts by which the officers should be guided in making sale under attachment, but this rule is not applicable to order for sale when default judgment contains an adjudication of the amount of the debt, as sheriff should look to judgment in order to obtain amount to be raised and in conformity to .Civil Code of Practice, section 696, should insert that amount in his advertisements of the sale.</p>

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

<p>1. Perpetuities — Statute Construed — Ky. Stats., section 2360, means that no limited or conditional estate may ever be carved from the fee that may extend and postpone the vesting of the remainder interest for a longer period than the life or lives of a person or persons in being at the creation of such estate and 21 years and 10 months thereafter.</p> <p>2. Perpetuities — Will Held Not to Violate Rule Against Perpetuities. —A will held to limit estate to lives of those takers in being at testator’s death and 21 years thereafter, and hence not to violate Ky. Stats., section 2360.</p> <p>3. Wills — Speak from Date of Death of Testator. — A will speaks from the date of the death of the testator.</p> <p>4. Wills — Provision in Codicil Held Not to Supersede Trust Provision. —Codicil providing “that the portion mentioned in said will to be given to the daughters of J. shall be given to all of the children of J., . . . to be divided equally between them, share and share alike,” held not to supersede provision under which daughters took only income from trust, so that the children of J. would take title in fee simple.</p> <p>5. Wills — Wisdom of Disposition Cannot be Considered. — Court can not make a will for testator, or declare void one he has legally made, simply because he made an unwise disposition of his estate.</p>

<p>1. Explosives — Care Required in Use- — Greater care must be exercised by those who employ explosives than is required in the use of less dangerous forces.</p> <p>2. Explosives — Injuries to Traveller on Highway Actionabe, Regardless of Negligence. — One who explodes blasts upon his own land, and thereby causes a piece of the blasted substance to fall upon a person lawfully traveling in the public highway, is liable as a trespasser for the injury thus inflicted, although the blast is fired for a lawful purpose and without neglegence or want of skill, and this applies where a railroad blasting a broken bridge kills an onlooker.</p> <p>3. Death — Evidence Held Admissible to Show Cause of Death. — In an action for death, evidence of a physician as to injuries on the body of, deceased, while not especially relevant, was permissible to give the jury an idea of what caused the death, it being necessary to show that the missile which took life came from defendant’s blasting.</p> <p>4. Explosives — Finding Blasting Set Objects in Motion Warranted. —In an actio.n for death caused by blasting held that the jury was warranted in concluding that defendant’s blasting set the objects in motion which killed plaintiff’s intestate.</p> <p>5. Appeal and Error — Admission of Evidence Held Harmless. — In action for death caused by blasting, testimony of physician as to injuries to the body of deceased, if irrelevant, held at least •harmless.</p> <p>6- Death — Evidence Decedent was Single Man Improper. — In action for death, it was not proper or pertinent to prove that decedent was a single man, or to prove that his father and mother were living.</p> <p>7. Appeal and Error — Admission of Evidence Held Not Prejudicial. —In action for death, proof that decedent was a single man and that his father and mother were living was not prejudicial.</p> <p>8. Appeal and Error — Failure to Strike Averment from Petition Held Not Prejudicial. — In an action for death, refusal of the court to strike from the petition the averment that deceased was unmarried, and left surviving him as his only heirs at law a father and mother; did not prejudice the substantial rights of the defendant.</p> <p>9. Appeal and Error — Admission of Res Gestae Matter Held Harmless. — In action for death to an onlooker when a railroad was blasting broken bridge off supports, evidence as to what the superintendent of railroads said, immediately after the injury of deceased, concerning what methods had been considered for the removal of the bridge, if not admissible as a part of the res gestae, was not prejudicial, where it was shown in evidence that defendant did employ acetylene gas to burn the bridge from its supports, after it failed to move it with dynamite.</p> <p>10. Death — $15,000.00 Held Not Excessive. — $15,000.00 was not excessive for the death of a young man 27 years of age in vigorous health, who was earning about $300.00 a month.</p> <p>LI. Explosives — Instruction Held Correct. — In an action for death of an onlooker from a blast by a railroad to remove broken bridge from its supports, an instruction that if the jury believed from the evidence that at the time of the discharge of the explosive defendant knew or had opportunity through its agents to have known that the deceased and others were assembled nearby on a highway, and with this knowledge negligently discharged the explosives, and thereby caused a piece of iron to be thrown through the air and to strike decedent, to find a verdict for the plaintiff, held substantially correct.</p> <p>L2. Appeal and Error — No Complaint of Failure to Instruct in Absence of Offer. — A failure on the part of appellant’s counsel to offer an instruction on the legal effect of notice given a crowd, including debedent, that workmen were preparing to touch off a blast, precludes it from complaining on appeal of the failure of the court to give an instruction as to such notice.</p>

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

<p>1. Logs and Logging — Measure of Damages for-Breach of Contract to Saw Timber — In absence of special circumstances of wbicb contractor was informed, measure of damages for breach of contract to saw timber is difference between contract price and reasonable cost of doing work.</p> <p>2. Appeal and Error — Verdict for Defendant when' Plaintiff Entitled to Nominal Damages Substantially Correct. — Verdict for defendant was substantially correct, where plaintiff was not entitled to recover anything beyond nominal damages, and any error in admitting evidence varying the written contract was' without prejudice.</p>

<p>1. Criminal Law — Attempt to Intimidate Witness Admissible- — A threat to kill one if be told wbat be knew and an attempt to carry out sucb threat after witness testified before grand jury were both admissible even though it showed defendant guilty of another offense.</p> <p>2. Criminal Law — Statement of Accused as to Previous Offenses Admissible to Show Motive. — In prosecution for burning insured house, testimony as to statement of accused after having set house afire that he had “pulled these stunts before” held admissible to show motive.</p> <p>3. Criminal Law — Court should have Limited Effect of Testimony as to Other Offense. — Court on admitting evidence of statement of accused that he had “pulled these stunts before” on trial for burning insured house should have admonished jury that statement could not be considered as conducing to prove guilt of crime charged, but only in determining motive.</p> <p>4. Arson — Building Burned Must be Insured in Company Regularly Engaged in Carrying on Fire Insurance Business. — It is essential to conviction for burning insured dwelling house, that policy be issued by insurance company regularly engaged in carrying on business of fir,e insurance in state.</p>

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

<p>1. Malicious Prosecution — iMalice Inferred from Want of Probable Cause. — Malice may be inferred from want of probable cause.</p> <p>2. Malicious Prosecution — Advice of Counsel Defense. — That defendant acted upon advice of co'unsel, who understood the facts, constituted a .'defense! " ' ‘ ...1 . . ' .</p> <p>3. Malicious Prosecution — Peremptory Instruction for Defendant Warranted. — Evidence held not to warrant conclusion that material facts were not perfectly understood by attorneys advising plaintiff’s arrest, so that peremptory instruction should have been given for defendant.</p>

<p>1. Mines and Minerals — Seller "of “Producing Well” Held Not to Covenant for Well Producing Five .Barrels. — One not an oil man selling oil lease under written contract, stating that “there is now a producing well, the capacity of which is not yet kown,” was not bound by covenant to show a well producing five barrels per day, though oil men do not consider a well a “producing well” unless it produces that amount.</p> <p>2. Corporations — Delivery of Oil Lease to Stock Salesman Held Delivery to Corporation. — Delivery of assignments of »il leases to person selling stock for corporation was delivery to corporation, where stock salesman had been factotum of company in matter of obtaining leases from beginning.</p> <p>3. Corporations — What Became of Assignments of Leases After Delivery to Corporation’s Agent Immaterial. — What agent for corporation did with assignments of oil leases after they were delivered to him was immaterial as affecting liability of corporation for purchase price.</p>

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

<p>1. Pleading — Permitting Reply to be Piled on Date Set for Trial Discretionary. — Permitting reply to be filed on date a case was docketed for trial after several terms had elapsed since filing of answer was discretionary.</p> <p>2. Continuance — No Abuse of Discretion in Refusal in Absence of Affidavit. — Where court permits reply to be filed on date case docketed for trial, it cannot be said that court abuses its discretion in overruling motion for .continuance or postponement, in . absence of affidavit showing that defendant is not ready to proceed on issue raised.</p> <p>3. New Trial — Court Held to Have Erred in Overruling Motion for New Trial. — Court erred in overruling motion for'new trial, where it had permitted reply to be filed on date case docketed for trial and overruled motion for continuance, and uncontradicted affidavits showed that defendant understood that plaintiff had died and was not prepared to try case, and that'there was a good defense, . ...</p>

<p>1. Landlord and Tenant — Moving Off of Premises and Back Within Three Days Without Notice Not Surrender of Possession. — There was no surrender of possession or termination of tenancy, where tenant moved off premises and back within three days without notice to his landlord.</p> <p>2. Principal and Agent — Unauthorized Lease Does Not Bind Principal. — An agent may lease land for his principal, hut existence of agency must be shown, as no third person can hold principal if agent acts without authority.</p> <p>3. Principal and Agent — Lease Made by Agent of Lessor should be Made in Name of His Principal. — A lease made by agent of lessor should be made in name of his principal.</p> <p>4. Parent and Child — No Presumption of Agency for Mother by Son Leasing Land. — Presumption of agency of son for mother does not arise, where he leases land in his own name and tenant under lease in his name could' show an outstanding title as against persons claiming through mother.</p>

<p>1. Evidence — Parol Evidence Admissible in Explanation of Deed.— Though evidence may not be introduced to vary or contradict terms of deed, it is admissible in explanation thereof.</p> <p>2. Evidence — Extraneous Evidence Permissible to Identity Land Excepted. — Extraneous evidence is permissible to identify land excepted in deed when particular land excluded is not designated therein.</p> <p>3. Evidence — Deed Held Ambiguous as to Land Excepted so as to Admit Parol Evidence. — Deed conveying land covered by three patents, each of which conflicted with the H. survey, and excepting land in the H. survey containing about five acres, held ambiguous so as to admit evidence that it was only intended to except the interference between the H. survey and one of the patents, the others being superior to that survey.</p>

<p>1. Pleading — Ho Abuse of Discretion Shown in Refusing to Permit Piling of Amended Answer and Counterclaim. — Court held not to have abused its discretion in refusing to' permit defendant to file amended answer and counterclaim on date case was called for trial, more than two years after petition and original answer and counterclaim had been filed.</p> <p>2. Evidence — Books Held Better Evidence than 'Statements of Bookkeeper. — Testimony of bookkeeper from statement taken from books, in absence of books themselves, which were shown to be still in existence, was incompetent.</p> <p>3. Pleading — Denial of Motion to Pile Amended Answer and Counter- • claim to Conform to Facts Proved Held Proper. — Denial of motion to file amended answer and counterclaim to conform to facts proved under Civil Code of Practice, section 134, held proper, where trial occurred more than two years after filing of original answer and counterclaim, and defendant knew all facts from the start.</p> <p>4. Appeal and Error — Assumed that Errors Not Pointed Out by Briefs are Waived. — Court is not inclined to hunt for errors, and, ■ if none are pointed out by briefs, it will be assumed that none exist or that they have been waived.</p>

<p>1. Street Railroads — Motorman Meeting Automobile Held Not Required to Sound Gong. — Motorman meeting automobile in street is not required to sound gong or warning, where’there is room for automobile to pass without injury.</p> <p>2. Street Railroads — Automobile Driver Required to Keep Lookout. —Law imposes upon one operating an automobile same duty to keep a lookout for those ahead as it does upon operator of interurban electric car.</p> <p>3. Street Railroads — Motorman May Assume Automobile Driver will Turn Out. — Motorman meeting automobile had right to assume that driver was in possession of his faculties and would see car in time to take necessary precautions for his safety and turn out.</p> <p>4. ' Street Railroads — Gong Only for Protection of Travelers Crossing Street. — Requirement that street car approaching intersection must sound gong is for protection of those using cross street and not those approaching on same street.</p> <p>5. Street Railroads — Automobile Driver Held Negligent as Matter of Law. — Automobile driver, traveling 15 or 20 miles per hour and colliding head-on with street car, almost stopped; was guilty of contributory negligence as matter of law, though blinded by brilliancy of light on car.</p>

<p>Intoxicating Liquors — Peace Bond May be Given Subsequent to Day of Trial. — Peace bond required by Rasb-Gullion Act, section 18. may be given upon a day subsequent to the day of trial, if within the period of 90 days for which defendant is to be committed for want of such bond.</p>

<p>1. Clerks of Courts&emdash;Counties&emdash;Officer Cannot Collect Fees Unless Especially Authorized hy Statute.&emdash;County court clerk or other public officials of county cannot charge and collect fees of county for services, except where they are specifically authorized hy statute.</p> <p>2. Clerks of Courts&emdash;Counties&emdash;Fiscal Court Cannot Allow Compensation for Services for which Statute Provides no Fees.&emdash;Fiscal court is not authorized to allow clerk of county court or other public official compensation for services for which statute provides no fees, and which he is obliged to perform as a part of duties of his office, and county may recover any money allowed and paid for such services in direct proceeding for that purpose.</p>

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

<p>1. Judgment — Court May Not Set Aside Year After Rendered. — Court is without authority to set aside a final judgment a year after it was rendered.</p> <p>2. Judgment — Judgment Setting Aside Earlier Judgment Final, and Not Interlocutory. — A judgment in a proceeding under Civil Code of Practice, section 518, setting aside an earlier judgment, canceling deeds made thereunder, and adjudicating title to land, was a final judgment, which could not be set aside after the expiration ■ of the term, though there remained for adjustment question of profits and rents and improvements.</p> <p>3. Judgment' — Final Judgment Need Not Settle all Rights. — It is not essential that a judgment to be final should settle all rights existing between parties, and it is none the less final because other orders are necessary to carry it into effect.</p> <p>4. Appeal and Error — Cross-Appeal Not Taken in Time Dismissed.— Cross-appeal will be dismissed where taken after time for taking appeal had expired.</p> <p>5. Lis Pendens — As to Innocent Purchasers Pendente Lite, Notice Must be Filed. — At common law, a purchaser pendente lite took subject to a judgment rendered in action and was bound thereby, but under Ky. Stats., section 2358a-l, this rule does not apply to a subsequent purchaser for value and without notice, unless notice is filed in county clerk’s office.</p> <p>6. Lis Pendens — Purchaser for Value Pendente Lite Must Allege and Prove Innocent Purchase Without Notice. — To exempt purchaser of land from common law rule that purchaser takes subject to judgment, he must plead, and if denied show, that he is a subsequent purchaser for value and without notice, as provided in Ky. Stats., section 2358a-l.</p> <p>7. Pleading — Allegation that One is Innocent Purchaser Mere Conclusion. — An averment that one is an innocent purchaser pendente lite is a mere statement of a conclusion of law.</p> <p>8. Lis Pendens — To be Innocent Purchaser, One Must have Paid Consideration Before Notice of Infirmity in Title. — To be an innocent purchaser pendente lite, vendee must not only have bought without notice, but he must have paid consideration before he had notice of infirmity in title.</p>

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

<p>1. Trial — If there is Any Evidence the Question is for Jury. — If there is any evidence of facts in issue, question is for jury.</p> <p>2. Master and Servant — Street Railway Held Liable to Strike Breaker Injured by Motorman Operating Car. — A street railway held liable for injury to a strike breaker caused by negligence of motorman giving instructions as to how to operate a car, as against contention that injured party and motorman were employees of company furnishing strike breakers; operation of car being a part of railroad’s business.</p> <p>3. Master and Servant — Motorman Instructing Strike Breaker Not Fellow Servant. — A motorman instructing strike breaker how to operate a street car was not fellow servant of one of strike breakers acting under his directions and in his-presence.</p> <p>4. Master and Servant — Whether Motorman Exercised Ordinary Care Held for Jury. — In action against street railway company for injuries received by strike breaker, injured while on fender of a street car on which motorman was giving lessons how to operate a car, whether ordinary care was exercised after plaintiff’s peril was discovered held for jury.</p> <p>5. Negligence — Contributory Negligence of One in Peril for Jury.— Contributory negligence is generally question for jury, especially where plaintiff is placed suddenly in peril and fails in emergency to take safest course.</p> <p>6. Master and Servant — Contributory Negligence of Servant in Peril Held for Jury. — In action for injuries to strike breaker, suddenly placed in peril while on fender of a street car which started during instruction of others as to how to operate cars, contributory negligence held for jury.</p>

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

<p>1. Reformation of Instruments — Mistake Must be'Mutual, or there Must be Negligence or Fraud. — To authorize reformation for mistake, it must appear that it was material, and either that it was mutual, or, if made by one party, that it was not caused by his negligence, but by negligence or fraud of party benefited.</p> <p>2. Reformation of Instruments — Mistake Must be Shown by Clear and Decisive Evidence. — Mistake warranting reformation must be established by. full, clear, and decisive proof, and mere preponderance of evidence is not enough.</p> <p>3. Reformation of Instruments — Evidence Held Not Sufficient to Show Mutual Mistake or Mistake and Fraud. — Evidence held insufficient to show mutual mistake or mistake and fraud as to royalty clause in mining lease.</p> <p>4. Appeal and Error — Appeal Not Dismissed Because Wife Not Made Party on Appeal.-^In action by husband and wife for reformation of mining lease, appeal by defendant will not be dismissed because wife was not made a party on appeal, though a party to lease, where it appears husband owns property.</p> <p>5. Appeal and Error — Party Selling Assets Held Sufficiently Interested to Prosecute Appeal; — Lessee in mining lease, which it sold pending litigation against it for reformation of lease, was sufficiently interested to authorize it to prosecute an appeal from a judgment ordering reformation as between lessor and such lessee.</p>

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

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

<p>1. Frauds, Statute of — Oral Agreement to Devise Within Statute.— An oral agreement to devise real estate to another in consideration for services to he performed is within statute, and ordinarily cannot be enforced.</p> <p>2. Frauds, Statute of — Recovery May be Had upon Parol Contracts to Devise when Fully Performed. — Recovery may he had on parol contracts to leave property by will in consideration of services, where consideration has been fully performed.</p> <p>3. Wills — Measure of Recovery Under Parol Contract to Devise.— Measure of recovery, in action on parol contract to devise property in consideration of services, depends upon character of service, and, where benefit to intestate can be measured by ascertaining reasonable value, such will he measure of recovery; but, where benefits cannot be measured by ordinary pecuniary standards courts award claimant value of property promised.</p> <p>4. Wills — Contract to Devise Must be Clearly Shown. — In order to warrant recovery on parol contracts to devise in consideration of services subsequently performed, contract must be established by convincing proof.</p> <p>5. Wills — Contract to devise Held Not Sufficiently Shown. — Ora] contract to devise property held not convincingly shown.</p>

<p>1. Appeal and Error — Order of Revival Unnecessary Year After Rendition of Judgment and Death. — An order of revival is unnecessary, where an appeal is filed by heirs and administrator over year after rendition of judgment and more than one year after death of defendant, under Civil Code of Practice, section 734.</p> <p>2. Appeal and Error — Appeal May be Taken from Default Judgment. —-Court of Appeals has jurisdiction of an appeal from a default judgment.</p> <p>3. Appeal and Error — Question Considered on Appeal from Default Judgment.- — On appeal from default judgment only question to be considered is as to sufficiency of pleadings to uphold judgment.</p> <p>4. Vendor and Purchaser — Recording Statute Held for Protection of Subsequent Purchasers. — Ky. Stats., section 496, is for protection of subsequent purchasers, and, where first purchaser fails to re.cord his deed, a subsequent innocent purchaser without notice will not be affected by subsequent'recording of first'deed,'even though prior in point of time.</p> <p>5. Vendor and Purchaser — Conveyance to -Subsequent Purchaser Relates Back to 'Time of Purchase, where First Deed Not Recorded.— Conveyance to Subsequent innocent purchaser relates back to time of purchase, and title must in law be regarded as having then ' and as of that date passed to arid vested in purchaser, where first purchaser did not'record his deed, as required by Ky. Stats., section 496.</p> <p>6. Vendor and Purchaser — Purchase Money Paid Subsequent to Receiving Notice of Prior Conveyance Not Protected by Statute as to Recording. — One, purchasing subsequent to conveyance to another who has not recorded his deed under Ky. Stats., section 496, is not a bona fide purchaser as to purchase money paid.subsequent to receiving notice of prior conveyance.</p> <p>7. Vendor and Purchaser — Incumbent on Second Purchaser to Show Bona Fides of Transaction — Bona Fides to be Pleaded and Proved by Purchaser. — It is incumbent on one purchasing land after prior - conveyance to another who did not record his deed under Ky. Stats., section 496, to show bona fides of his transaction, and, if first purchaser is plaintiff in action, he d9es not haye to anticipate question of notice, as it is a matter of defense to be pleaded and proved by defendant.</p> <p>8. Vendor and Purchaser — Recording Statute Held Applicable to Transfers in Judicial Proceeding. — Ky. Stats., section 496, rendering unrecorded deed ineffective as against subsequent bona fide purchaser without notice- applies, though one of transfers is through judicial proceedings, such as a proceeding to enforce statutory Men tor improvements. • / ' ■ . •</p>

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

<p>1. Commerce — Statute as to Assumed Names Does Not Apply to Interstate Commerce. — Ky. Stats., section 199b, prohibiting business in state under assumed name, unless names of true owners of business are filed, is inoperative as to interstate commerce.</p> <p>2. Commerce — Shipment of Silos and Taking of Note from Agents Held “Interstate Commerce.” — Where persons appointed as agents purchased silos, to be manufactured and shipped from another state, and silos were shipped to principal and then delivered, and note was executed and made payable in Kentucky, transaction was one of “interstate commerce,” and Ky. Stats., section 199b, relating to doing business under assumed name, did not operate.</p> <p>3. Contracts — Benefit to Promisor or Detriment to Promisee Con- ' sideration. — A promise is supported by sufficient consideration, if either any benefit moves to promisor or any detriment results to promisee.</p> <p>4. Bills and Notes — Agreement of Payee of Note that it shall Not be Paid, Except in Particular Way, Without Consideration. — Promise of payee of note, containing unconditional promise to pay, that it shall not be paid, except by resale of article purchased by maker, is without consideration.</p>

<p>1. Vendor and Purchaser — Sale of Tract of Land for Right of Way-Controlled by Samo Rule as Applies to Sales of Land in General, as Regards Acreage. — Where landowner would not sell right of way for railroad, and insisted on selling his entire farm, transaction is controlled by same rule that applies to sales of land in general as to deficiency in acreage.</p> <p>2. Specific Performance — Not Granted Vendor where there is Great Deficiency in Land. — A vendor may not have specific performance of contract to purchase land with deduction for deficiency upon tender of a deed conveying 126 acres, where contract provided for conveyance of 250 acres “more or less,” even though vendee railroad contracted to purchase solely to get a right of way across land.</p>

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

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

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

<p>Master and Servant — Absence of Headlight on Engine Held Cause of Brakeman’s Injury. — Movement of engine without headlight on improper track was violation of Boiler Inspector Act Feb. 17, 1911, section 2, as amended by Act March 4, 1915, section 1 (U. S. Comp. Stats., sections 8631, 8639d), as against contention that unintended and unnecessary movement of car, and not defective appliance, was proximate cause of death of brakeman.</p>

<p>-1. Criminal Law — Prosecution for Drunkenness Must be Commenced Within Six Months. — Prosecution for drunkenness, under Acts 1922, c. 33, section 24, must be brought within six months, in view of Ky. Stats., section 1138.</p> <p>;2. Indictment and Information — Indictment for Drunkenness, Though Not Charging Offense Committed Within Six Months, Held Not Demurrable. — An indictment charging that on the “11th day of September, 1923, and within twelve months before the finding of the indictment,” defendant was drunk in public places, was not demurrable because not charging that offense was committed within six months of finding of indictment, as required by Ky. Stats., section 1138, where record shows indictment was found and returned by grand jury September 12, 1923.</p> <p>:3. Drunkards — Evidence Held to Sustain Conviction.- — Evidence held to show drunkenness in public place, under Acts 1922, c. 33, section 24.</p> <p>■ 4. Drunkards — Offense to be Drunk on Private Road in Presence of Others. — It constitutes drunkenness, denounced by Acts 1922, c. 33, section 24, to be intoxicated and boisterous on private road, in presence of others and to disturbance of public peace.</p> <p>. 5. Drunkards — Whether Defendant Drunk Held for Jury. — Whether one prosecuted under Acts 1922, c. 33, section 24, was drunk, held for jury.</p> <p>• 8. Criminal Law — If there is Any Evidence Conducing to Prove Guilt, Case Must be Submitted to Jury.- — If there is any evidence conducing to prove guilt of defendant, case must be submitted to jury.</p> <p>' 7. Criminal Law — Evidence Held to Show Offense Committed Within Six Months Before Binding of Indictments, and Directed Verdict Properly Refused. — In action for drunkenness defendant held not entitled to directed verdict on ground that there was failure of evidence to prove- offense committed within six months before finding of indictment; witness testifying that “it was the day before I appeared before the grand jury.”</p>

<p>1. Appeal and Error — Presumed that Lost Instructions Presented Whole Law of Case. — Where instructions given by court are not copied in record, but are lost, it must be presumed that they presented whole law of case, unless appellant was entitled to a peremptory instruction.</p> <p>:2. Contracts — Undertakings to Convey Land Held Mutual and Correlative. — Undertakings in contract for exchange of properties held mutual, co-ordinate, and correlative, and when either within reasonable time tendered and offered to perform his part of contract, it became duty of other to carry out his part, and failure to do so was breach for which recovery of damages was available.</p> <p>.3. Evidence — Witnesses Held Competent to Testify as to Value of Farm. — Witnesses who had visited farm in Texas and had witnessed sales of land in same vicinity, and stated in substance that they were acquainted in general way with values of land in that part of Texas, were competent to testify as to value of farm.</p>

<p>Animals — Conviction for Shooting Horse Not Sustained. — Evidence held insufficient to sustain a conviction for shooting and hilling a mare under Ky. Stats,, section 1249.</p>

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

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

<p>U. Highways — Order of County Court Held Not Final Establishing Change in Road. — Order of county court, “considered and adjudged by the court that the said proposed change should be made at as early a date as practicable,” followed by appointment of viewers and an order to survey and fix location of road, held not final order establishing change in road, there being no consent by fiscal court, -.under Ky. Stats, section 4301, and county was not bound by order.</p> <p>2. Highways — Order of Fiscal Court Providing for Taking of Strip 60 Feet Wide Held Not Approval of Order of County Court to Take 40-Foot Strip.' — Order of fiscal court; providing for taking of strip of land'60'feet wide, held not approval of prior order of county court to take strip 40 feet wide, under Ky. Stats., section 4301, and order of county court in first proceeding requiring fencing by county was not binding on county as to 60-foot road.</p>