yard; that these logs were worth, standing in the woods, at the time the appellee failed and refused to measure up and pay for them, not more than $2 per 1,000 feet; that he could have cut and delivered the logs to the millyard at a cost not to exceed $2.50 per 1,000 feet; that he would have realized a profit of $3 per 1,000 feet on the 50,000 feet of "first-class oak logs, 20 inches and up," amounting to $150; that he would have realized a profit of $.50 per 1,000 feet on the 150 feet of "common oak logs, 14 inches and up," amounting to $75; and that by reason of the appellee's breach of his contract appellant has been damaged in the sum of $225, for which he prays judgment. The contract is filed with and made a part of the petition. To this pleading the appellee interposed a general demurrer, which was sustained by the court; and, the appellant declining to plead further, his petition was dismissed, from which judgment he prosecutes this appeal.

We cannot agree to the contention of counsel for the appellee that the contract under consideration is void because of its vagueness and uncertainty. It is true the description of the timber sold is somewhat loosely and vaguely given as "a certain lot of timber situate on Rhodes Branch, about three miles from Williamsburg"; but this was sufficiently definite and certain to enable the parties to effectuate it to the extent of 200,000 feet of timber, which was delivered by the appellant and received by the appellee. The acts of the parties constitute a practical demonstration that the descripion of the timber comes within the maxim, "Id certum est, quod certum reddi potest."

Nor do we think appellee's position is sound that under the terms of the contract appellant was only bound to deliver 200,000 feet of timber, and appellee only bound to receive that number of feet. The expression, "said Bradford further agrees to deliver not less than 200,000 feet of all classes of timber above specified," does not fix the maximum amount of timber to be delivered. On the contrary, it clearly establishes the minimum. It practically makes Bradford guaranty that there was at least 200,000 feet of timber on the boundary in question, to be cut and delivered by him under the terms of the agreement. The contract is for the sale of all the timber of the given kind, quality, and dimensions on the boundary contemplated by the parties. All of this timber appellant was bound to cut and deliver, and appellee was bound to receive and pay for it. This being true, the petition states a good cause of action, and the trial court erred in sustaining the general demurrer to it.

Wherefore the judgment is reversed, with directions to overrule the demurrer.

PHILLIPS v. BEATTYVILLE MINERAL & TIMBER CO.

(Court of Appeals of Kentucky. Sept. 21, 1905). 1. TRESPASS-TITLE-EVIDENCE.

One cannot maintain an action for trespass; he showing no title from the commonwealth, but only a sheriff's deed on sale under execution against one not shown to have had title.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trespass, §§ 18, 19.]

2. ADVERSE POSSESSION-INTERRUPTION—EVIDENCE.

Interruption of plaintiff's adverse possession, so that it will date only from recommencement of possession, is shown; plaintiff, while testifying that his tenant was on the premises all the time after he went there, also stating that he thought he moved away, and the tenant, testifying for him, stating that he did move away after he had been on the premises nine or ten years, that he was away two years, and that the place was vacant while he was away, and this not being controverted by any other testimony.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 278.} 3. SAME DIFFERENT POSSESSIONS.

One entering on a tract on which there are others claiming it as their own, and who so continue thereon, acquires no right by adverse possession beyond his close.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 590, 591.] Appeal from Circuit Court, Lee County. "Not to be officially reported." Action by T. J. Phillips against the Beattyville Mineral & Timber Company. Judgment for defendant. Plaintiff appeals. Affirmed.

J. B. White, Gourley & Redwine, C. A. Gourley, and J. K. Roberts, for appellant. J. M. Beatty, and Beckner & Jouett, for appellee.

HOBSON, C. J. Appellant, T. J. Phillips, instituted this action against the appellee, Beattyville Mineral & Timber Company, alleging, in substance, that he was the owner and in the possession of a large body of land on the waters of Contrary and Miller's creeks in Lee county, and that the defendant had entered on the land and cut from it timber belonging to him of the value of $5,000. He alleged that he and those under whom he claimed had been in adverse possession of the land for more than 20 years next before the trespasses complained of. The suit was filed on February 26, 1897, and the trespasses were alleged to have been committed between the preceding June and that date. The defendant by its answer denied that Phillips owned the land or was in the possession of it, or that he or those under whom he claimed had held it in adverse possession, but alleged that the land was in its possession and had been held by it and its vendors for 50 years in adverse possession. It set up its title to the land, and pleaded in bar of the action a judgment of the Lee cir

did move away after he had been there 9 or 10 years, and that the place was vacant while he was away, is not controverted by any other testimony in the record. We regard the vague statement of Phillips as not sufficient to overthrow the testimony of his own witness, which is definite and certain and uncontroverted. In addition to this, B. F. Phillips only owned an interest in the 29,000acre survey. Those under whom appellee claims owned other interests in this survey. When a man without title enters upon the land of another, he acquires no right by adverse possession beyond his close against the true owner, unless the possession is then vacant. The plaintiff introduced no proof to show that the land was vacant when Warner entered or when Warner returned, and the proof introduced by the defendants, uncontradicted, showed that the defendant and those under whom it claims had tenants on the land, claiming it as their own, at the time he so entered. So, at most, under the evidence, any possession by Warner would be confined to his close. On the whole case, we are satisfied that the plaintiff showed no right to the land, and that the judgment dismissing his petition should not be disturbed. Judgment affirmed.

DARRELL v. COMMONWEALTH

(Court of Appeals of Kentucky. Sept. 22, 1905.)

The

ly, and a rule issued against the clerk to produce the lost indictment. It was found later in the day, and the case assigned for trial the following day. Appellant claims that all the witnesses had been discharged when it was discovered that the indictment was lost. But, however that was,on the next day, when the case was called again for trial, appellant asked for a continuance on account of the absence of his witnesses. His affidavit gave their names and stated that they all resided in Daviess county, Ky., about 18 miles from the courthouse. attorney for the commonwealth consented that the affidavit might be read as the depositions of the absent witnesses, whereupon the trial was ordered to proceed; the defendant still protesting. One of his absent witnesses, the affidavit stated, would testify that, shortly before the date of the alleged rape, he had sexually known the prosecutrix with her consent, and that she was a woman whose reputation for chastity was then bad. After this affidavit had been read to the jury as the deposition of the absent witness, the commonwealth was allowed to prove over appellant's objections that the absent witness was dead, and had been for more than a year. The Constitution, confirming the very spirit of our regard for human liberty, guaranties to every one accused of crime that he shall have com

UANCE-ABSENCE

AS EVIDENCE.

OF WITNESSES EFFECT

Where the court allowed the affidavit for a continuance of a criminal case to be read as the deposition of the absent witness, it was error to permit the commonwealth to prove that the absent witness had been dead for over a year, and that the statement that he would testify as alleged was false.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1364, 1365.] 2. RAPE-EVIDENCE-INSTRUCTIONS.

Where, on a trial for rape, there was no evidence of threats of violence by the accused toward the prosecutrix, except that immediately after the act accused told the prosecutrix that he would kill her father if she told him, an instruction that force necessary in rape need not be physical force applied to the person of the prosecutrix, but that force was used if she yielded through fear caused by threats of injury, was misleading.

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Estill Darrell was convicted of rape, and appeals. Reversed.

See 82 S. W. 289.

Watkins & Birkhead, for appellant. N. B. Hays and C. H. Morris, for the Commonwealth.

O'REAR, J. This appeal is prosecuted from a judgment convicting appellant of rape. When the case was called for trial the indictment had been misplaced and could not then be produced. The case was passed indefinite

his witnesses; that his accusation shall not be tried upon one-sided evidence without his having an equal chance to produce the other side. To facilitate trials, while preserving this ancient and invaluable guaranty of process to the accused, it is provided that the court may, in its discretion, after the first term, allow the defendant's affidavit to be used as the deposition of his absent witnesses, where otherwise the presence of the witness could not be promptly had. When the affidavit is so admitted, its authenticity is beyond question in that trial. It must be accepted as if it were the duly signed and certified deposition of the identical witness named. It was error to have admitted evidence tending to show that the affidavit was false in its statement that the witness was there living within the jurisdiction of the court and would testify as stated.

There was no evidence of threats of violence by the accused towards the prosecutrix, or any one else, made in her presence before the criminal act. There was evidence, however, that immediately afterward, and before their separation, accused said to the prosecutrix, if she told her father, "he would kill him," evidently meaning that accused would kill her father. This evidence was admitted to explain the silence of prosecutrix for some three months afterward. In instructing the jury the court said, in part: "The court further instructs the jury that force, as used in this instruction, does not

mean exclusively physical force applied to the person of the prosecutrix; but that force was used, if the prosecutrix was made to yield through fear caused by threats of violence and injury then made." The threats proven were not claimed by the prosecution to have been made to induce her submission. No threats of violence to her to coerce her will were made before the act. In view of the evidence, we think the language of the instruction was misleading, and prejudicial error. Undoubtedly it is the law that, if the rapist coerces the female into yielding through fear caused by what he threatens or does, her will is as completely subdued by force as if he violently took hold of her and held her against her will. The use of the word "force" has reference solely to the will of the female. Though force was used, if she does not object, being conscious of the act and purpose, or finally consent without coercion, it is not criminal. If she declared "she'll ne'er consent, yet consenting," no force or threats being used to override her own will, the act is not rape.

The judgment must be reversed, and the cause is remanded for another trial, under proceedings not inconsistent herewith.

COMMONWEALTH v. WOELFEL. (Court of Appeals of Kentucky. Sept. 22, 1905.) 1. WITNESSES-HUSBAND AND WIFE-COM

PETENCY.

On a trial under Cr. Code Prac. § 156, on the issue of the sanity of one indicted for crime, the wife of the accused is not a competent wit

ness.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, § 124.]

2. CRIMINAL LAW

ERROR. Where, on a trial under Cr. Code of Prac. § 156, on the issue of the sanity of one indicted for crime, every fact testified to by the wife of the accused was shown by witnessess whose testimony was uncontroverted, the error in permitting the wife to testify was not prejudicial. [Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3138.]

3. SAME TRIAL OF DEFENDANT'S SANITYTESTIMONY OF PHYSICIANS-COMPETENCY.

On a trial under Cr. Code Prac. § 156, on the issue of the sanity of one indicted for crime, physicians who had examined or treated the accused, or who had sufficient facts before them to make their opinion of any value, were competent witnesses.

[Ed. Note. For cases in point, see vol.14, Cent. Dig. Criminal Law, § 1069.]

from a judgment adjudging him insane the commonwealth appeals. Affirmed.

M. L. Galvin, N. B. Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

HOBSON, C. J. Appellee was indicted for the crime of malicious shooting with intent to kill; and, an affidavit being filed by a physician to the effect that he was of unsound mind, the court ordered a jury impaneled to inquire as to his sanity under section 156 of the Criminal Code of Practice, which is as follows: "If the court shall be of opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until a jury be empanelled to inquire whether the defendant is of unsound mind, and if the jury find that he is of unsound mind, the court shall direct that he be kept in prison or conveyed by the sheriff to the nearest lunatic asylum, and there kept in custody by the officers thereof until he be restored, when he shall be returned to the sheriff on demand, to be reconveyed by him to the jail of the county."

The rule governing this proceeding is thus stated in Bishop on Criminal Procedure, §§ 666-668:

"Sec. 666. Present insanity implies a disability to employ, control, or discharge counsel. And the doctrine is believed to be that, when the court sees a reasonable ground to institute or persevere in this defense, it will take care that the prisoner has suitable counsel therein, whom it will not permit him to reject, restrain, or dismiss. An insane man cannot even plead to an indictment. Therefore, if, at the arraignment, counsel have reason to suppose their client too insane properly to take his trial, they should make the objection. This, it is believed, can be adequately done orally to the court. the objection may proceed from a third person on affidavit. Or the court may take it on its own observations.

Or

"Sec. 667. The time to which this inquiry relates is, it is perceived, the present-what is the mental condition now, not what it was when the offense was committed. And the test of insanity is not precisely the same as on the main issue, but it is whether the prisoner is competent to make a rational defense.

"Sec. 668. The object of this inquiry being, in the main, to inform the judge, it seems that he need not limit the evidence by strict rules. The prisoner, for example, may be permitted to make statements and observations to the court and the jury, and what the latter see and hear of him they may take into the account. ** The jury's finding, on this preliminary question, that the prisoner is not insane, is not to be received as evidence against him on the trial of the main issue."

On the trial before the jury the court, over the objection of the commonwealth, allowed

the defendant's wife to testify in his behalf, and at the conclusion of the evidence on behalf of the defendant the court refused to allow the commonwealth to prove by three physicians that the defendant could on that day make a rational defense to the criminal charge against him. At the conclusion of the evidence the court instructed the jury that, if they believed from all the evidence that the defendant was a person of unsound mind at that time, they should so find, and refused instructions asked by the commonwealth to the effect that unsoundness of mind in a trial of this sort is that condition of mind where the defendant is incapable of remembering the past events of his life and presenting them to his counsel, or of appreciating what is going on about him, or of making a rational defense to the criminal charge against him. The jury found the defendant of unsound mind, and the commonwealth appeals.

A wife is not a competent witness for her husband, and, while the inquiry here is not limited by the strict rules of evidence, the result of it is to protect the defendant from trial and punishment if found of unsound mind, and his wife can no more testify for him on this issue than on any other. But every fact testified to by the wife was in effect proved by other witnesses, whose testimony was uncontroverted, and we do not see that the commonwealth was prejudiced by the admission of the wife as a witness.

The testimony of the three physicians offered on behalf of the commonwealth should have been admitted, if a proper foundation had been laid; but it is not shown that they had ever examined or treated the defendant, or that they in any way had sufficient facts before them to make their opinion of any value to the jury. The jury had before them the conduct of the defendant, and he was also before them.

The rule in a proceeding of this kind is that the inquiry is whether the accused is sane enough to appreciate his situation, to act advisedly in informing his counsel, and to rationally and intelligently conduct his case, so as to secure him a fair and impartial trial. 1 Robinson on Criminal Law, p. 33; Carr on Trial of Lunatics, p. 92; Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216; Guagando v. State, 41 Tex. 626. The principle governing where the defendant's mind is diseased is not different from that where he is suffering from disease from some other organ. He must be in a condition to conduct his case rationally and intelligently, so that he may have a fair trial. The court should have instructed the jury as above indicated; but under all the evidence we have great doubt that the instruction, if given, would have affected the result.

Under the facts shown by the record we are satisfied that the ends of justice will not be promoted by a new trial. The defendant is in an insane asylum, and when he is re

stored to his mind may be tried for the offense charged against him. Judgment affirmed.

McLEMORE et al. v. SEBREE COAL & MINING CO. et al.

(Court of Appeals of Kentucky. Sept. 22, 1905.) 1. DEATH BY WRONGFUL ACT-REFUSAL OF ADMINISTRATOR TO SUE-RIGHT OF WIDOW AND CHILDREN.

Where an administrator and one responsible for the negligent death of another conspire together to prevent a suit for the negligent death, the widow and children of decedent may sue, though Const. § 241, and Civ. Code, § 21, provide that an action for wrongful death shall be prosecuted by the personal representative for the benefit of the widow and children of the decedent, and though Ky. St. 1903, § 3582, authorizes the administrator to settle any claim for damages for a wrongful death; Civ. Code, § 24, providing that, if the consent of one who should be joined as plaintiff cannot be obtained, he may be made defendant.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Death, §§ 35--46; vol. 22, Cent. Dig. Executors and Administrators, § 1660.]

Appeal from Circuit Court, Webster County.

"To be officially reported."

Action by Nancy B. McLemore and others against the Sebree Coal & Mining Company and another. From a judgment dismissing the petition, plaintiffs appeal. Reversed.

R. L. Greene, Bourland & Hunt, Proctor & Herdman, and Jno. L. Dorsey, for appellants. C. W. Bennett, Barker & Barker, and Gordon, Gordon & Cox, for appellees.

SETTLE, J. This action was instituted in the Webster circuit court against appellee the Sebree Coal & Mining Company by the appellant Nancy B. McLemore, widow of Thomas J. McLemore, deceased, and their eight children (six of them infants, suing by their mother as next friend), to recover $25, 000 damages for the death of the husband and father from a fall in appellee's mine shaft, alleged in the petition to have been caused by its gross negligence; the decedent being at the time an employé of appellee. In addition to stating a cause of action for the death of Thomas J. McLemore, the petition further avers in substance that after his death appellee R. L. Claxton was appointed, gave bond, and duly qualified as administrator of his estate; that his appointment and qualification as administrator were procured by appellee with the wrongful and fraudulent intent to protect itself from liability for damages for its negligence in causing the death of Thomas J. McLemore; that Claxton was at the time of his appointment and qualification, and is now, in the employment of appellee, and has entered into collusion with it to prevent suit against it for the death of the decedent, and has refused to sue appellee for his death, though requested by appellants to do so; that he also re