proper and necessary for carrying on its business for more
than five years, does not apply to a corporation organized for
the purpose and engaged in the business of buying, selling,
owning, holding and dealing in real estate. Cree v. The Asso-
ciates Company
CORRUPT PRACTICES-See Elections.
COSTS-See Covenants; Divorce.
COUNTERCLAIM-See Executors and Administrators; Mines and
Minerals.
1. Election to Provide for Sale of Bonds for Road Purposes-
Fiscal Courts.-Where, prior to an election to determine
whether the voters of a county will authorize the issual and
sale of bonds for turnpike and bridge purposes, the fiscal
court of the county, upon recommendation of a committee ap-
pointed by its citizens at a mass meeting, enters an order
classifying the various turnpikes of the county, and giving
the mileage of each, and setting aside to each class a certain
proportion of the fund to be realized from the bond sale, and
providing that "each and every mile" of two classes of turn-
pike named are to be improved with the proceeds, and fixing
definitely the average cost per mile of such expenditure on
the several classes of turnpikes, it was beyond the authority
of the fiscal court to enter into any contract to pay out of
the proceeds of the bond issue on any one pike an amount in
excess of that fixed in the pre-election order. Reynolds v.
Bracken County
Election to Provide for Sale of Bonds for Road Purposes.-
Even though the pre-election order was entered and the bond
issue authorized by the voters with the purpose in view of
getting the benefit of state aid in the reconstruction of the
turnpikes, the fiscal court had no authority in contemplation
of such state aid, to enter into a contract which would involve
the payment out of the proceeds of the bond issue of a larger
amount than that fixed in the order. Id.
Bonds for Road Purposes-Pleading.-The pleadings being un-
certain and indefinite as to whether any work was done un-
der the contract in issue before the filing of the suit, and no
issue being made as to the propriety or legality of such pay-
ments, if any, all questions as to the legality of same are
reserved. Id..............
Public Improvements-Construction
election, at which a bond issue of $250,000.00 in amount by the
fiscal court of Montgomery county for the construction of pub-
lic roads therein was approved by more than the required
majority of votes, was not invalidated nor the right of the
fiscal court to issue and sell the bonds obstructed by a pre-
election order of that court providing that the proceeds thereof
should not be expended, except upon such roads of the county
as were or might be constructed or reconstructed by state or
federal governmental aid, or private aid, 25 % of the total net
cost of such construction or reconstruction to be paid by the
county and 75% thereof by the state or federal government,
private person or persons. Hall v. Montgomery County Fiscal
Court.
Construction of Roads-Bonds.-Although such order is to be
regarded as a contract between the fiscal court and voters of
the county by which both are equally bound, in the absence of
a charge and showing of bad faith or intended present or fu-
ture misapplication by the fiscal court of the proceeds arising
from the sale of the bonds, it will not be presumed that they
will not be expended as required by the pre-election order of
that court. Id.
Construction of Roads-Bonds.-As it appears from the pre-
election order that certain roads in the county named therein
already had been assured of both state and federal aid, and
one of them selected for early construction with such aid, the
circuit court properly refused the plaintiff, a taxpayer, an
injunction restraining the issuance or sale by the fiscal court
of $35,000.00 worth of the county's bonds admittedly required
to pay its 25% of the total net cost of such selected road's
construction. Id.
Construction of Roads-Withdrawal of Aid-Bonds.-Whether,
in the event of the withdrawal of state, federal or private aid,
the fiscal court would have the power to expend the proceeds
of the bonds in road construction under some other plan is a
question not now presented for decision. That question can
arise only in the event of an attempt by the fiscal court, fol-
lowing a future sale or threatened sale of some part of the
bonds, to apply the proceeds in contravention of the provi-
sions of the pre-election order. Id.
COVENANTS-See Landlord and Tenant-
Breach of Warranty.-The basis of an action for a breach of
warranty of title is that the warrantee has either been ousted
by a paramount or superior title, or that he gave the war-
rantor notice of the pendency of the action involving the title,
in which latter event the warrantor would be bound even
though the eviction was not by paramount title. Wilson v.
McGowand.
565
Breach of Warranty-Measure of Recovery.-The measure of
recovery on a breach of warranty where there is a total loss
of the whole land, the title to which is warranted, is the pur-
chase price at the date of the conveyance with interest from
that time; but where only a part of the warranted is lost
the measure of recovery is that proportion of the original pur-
chase price which represents the value of the lost part at the
time of the conveyance, with interest from that time. Id....... 565
Breach of Warranty-Attorneys' Fees-Costs.-In an action
for a breach of warranty of title to land there can be no re-
covery against the warrantor for the costs, attorneys' fees and
expenses of the warrantee in an action wherein the recovery
was had unless and until the warrantor has had notice of the
pendency of the action. Id.
CRIMINAL LAW-See Arrest; Bail; Burglary; Incest; Indict-
ment and Information; Intoxicating Liquors; Statutes-
Jurisdiction. Our penal statutes are intended to apply to of
fenses committed within this state and not beyond the juris-
diction of our courts. Addington v. Commonwealth..........
Jurisdiction. It is beyond the power of the legislature of this
state to punish persons for offenses committed in another
state. Id.
Foreign Jurisdictions.-The penal statutes of this state, defin-
ing public offenses and prescribing penalties therefor, have
no reference to the commission of such offenses in foreign
jurisdictions, and when they define the offense of aiding or
abetting the commission of a given offense, they mean the aid-
ing or abetting of an offense committed within this state. Id.
Trial-Discretion of Court. The trial court has a broad dis-
cretion in the matter of calling an interpreter and if not ob-
served will not be grounds for reversal of a judgment. Duroff
and Duke v. Commonwealth
Witnesses Unable to Speak
English-Interpreter.-Even
though a witness or party be of foreign birth and able to speak
the English language but imperfectly, yet the court should
not call an interpreter if by careful and patient questioning
the witness can be made to understand the interrogatories
and can make intelligent answers. Id.
Voidable Judgment-Effect.-A judgment of conviction in a
criminal case when merely erroneous or voidable, like that in
a civil case, is, until vacated or reversed, conclusive of what
it decides. Smith v. Bastin.
Judgment-Collateral Attack.-The mere fact that. the trial
court overruled appellant's motion to be allowed to prosecute
the appeal in forma pauperis was not a denial of the right
of appeal, and if the trial court abused its discretion in over-
ruling the motion, it was subject to review by this court, but
the judgment though voidable can not be attacked collaterally.
Id.
Indeterminate Sentence Law-Effect of Finding Under.-As
there was no indeterminate sentence law when appellant was
convicted the judgment should have been treated for two years
only, because no discretion is conferred upon the prison offi-
cials to continue the confinement. Id.
Mandatory Injunction-Pleading. The petition for a manda-
tory injunction on the ground that the judgment fixing an in-
determinate sentence was voidable stated a cause of action
and the trial court erred in sustaining a demurrer to it. Id..... 164
Continuance--Affidavits.-Prior to 1920 upon the filing by the
defendant of an affidavit for continuance and an agreement
by the attorney representing the Commonwealth that it might
be read as the deposition of the absent witnesses, if the trial
takes place at the indicting term defendant is entitled to a
continuance unless the facts stated were admitted as true.
Aldridge v. Commonwealth
10. Continuance-Construction of Act.-An act entitled "An act to
amend and re-enact section 189 of the Code of Practice in
criminal cases relating to continuances" passed at 1920 ses-
sion of the General Assembly will be construed as constituting
the whole of section 189 of the Criminal Code as it should ap-
pear after the approval of said act and any language or pro-
vision of said section or of earlier acts not incorporated in the
new act are no longer in force. Id.
11. General Rules of Construction.-Whenever an act of the legis-
lature can be construed and be given the force of a law so
as to avoid conflict with the Constitution, the courts will adopt
such a construction. Id.
12. Review.-Section 281 of the Criminal Code makes the judg-
ment of the trial court final and conclusive upon the subject
of challenges to the panel and for cause to the particular
jurors, and precludes the Court of Appeals from reviewing
such decisions. McLaughlin v. Commonwealth
13. Right of One to Kill Burglar.-A person may be justified in
killing a burglar or thief who is at the time committing a
felony by attempting to break into his home, but a person
has not the right to kill another merely because in the night
he comes upon the premises or even knocks at the door of
his house. Steele v. Commonwealth
14. Killing Intruder-Evidence.-To excuse or justify the killing
of an intruder or trespasser on the ground that the person
killed was on the premises for the purpose of committing a
felony or attacking with evil intent the person in possession,
the latter must introduce some evidence conducing to the
establishment of this defense. Id.
15. Appeal and Error.-A judgment of conviction will not be in-
terfered with upon appeal unless the verdict is so palpably
against the weight of the evidence as to make it appear at
first blush that the jury was influenced by passion or preju-
dice. Id.
16. Evidence of Other Crimes.-Subject to certain exceptions evi-
dence which in any manner shows or tends to show that ac-
cused has committed other crimes wholly independent of that
for which he is being tried, is irrelevant and inadmissible. Id. 223
17. Impeachment.-The evidence of bad character at a time long
anterior to the date of trial should not be admitted until a
basis is laid by proof tending to show that the character as
of the date the testimony is given is then bad. Id......
18. Impeachment.-Where there is an objection or a motion to
limit the effect of evidence pertaining to the reputation of de-
fendant, the court should admonish the jury that such evidence
is admitted for the sole purpose of testing the accuracy and
credibility of the witness and not as substantive evidence of
defendant's guilt of the offense charged. Id.
19. Defense of One's Home and Family. Where accused had
reasonable grounds to believe and did believe he was in danger
of death or great bodily harm at the hands of any member of
an attacking party he had the right to use such force as rea-
sonably appeared to him to be necessary to prevent any at-
tempted entry into his house, or threatened death or bodily
danger by any member of the party. Id.
20. New Trial-Newly Discovered Evidence.-As a rule a new
trial will not be granted on account of newly discovered evi-
dence which merely tends to impeach a witness, or to cor-
roborate evidence which was given on the trial, but where the
newly discovered evidence is of such a character as that it
might have a decisive influence upon the result of the trial,
a new trial may be granted. Spencer v. Commonwealth.......... 232
21. Confessions.-Where a confession made out of court is accom-
panied with other proof that such an offense has been com-
mitted, i. e., with proof of the corpus deliciti, it will warrant
a conviction. It is not necssary that the corroborative testi-
mony should tend to connect the accused with the commission
of the offense. Dunbar v. Commonwealth
22. Confessions.-Where it is doubtful whether, in fact, a crime
has been committed, the jury should be told, substantially in
the language of the Criminal Code, section 240, that an alleged
confession of guilt by the defendant will not warrant a con-
viction unless accompanied with other proof that such a crime
has been committed. But when, independent of the confession
or admission of the defendant, there is evidence proving the
corpus deliciti beyond a reasonable doubt, the giving of such
instruction concerning the weight to be given confessions is
unnecessary. Id.
263
23. Submission to Jury. Evidence examined and held sufficient
to require submission of the case to the jury, and, also, to,
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