from liability for the crime. We may fur-[ ther assume that the jury believed the story told by Nancy Miller, and inferred from the circumstances of the case that Combs, while drunk, was shot and killed by Allen Miller with the advice and assistance of his wife. But however this may be, the direct and circumstantial evidence in the case was, as we think, sufficient to justify the jury in returning the verdict, although, as we have said, the evidence is so contradictory and confusing as to leave us in great doubt as to the truth of the case. The jury, however, saw and heard the witnesses testify and were doubtless acquainted with them, and we do not feel warranted in holding, on the record before us, that their finding should be set aside and a new trial ordered on the ground that there was not sufficient evidence to support it. On this appeal, it is urged that the court committed error in the instructions given to the jury and in permitting Sallie Ann Miller to be recalled at the request of the jury and examined by one of the jurors after the case had been argued and submitted. [2, 3] There is no objection to the instructions on the subject of murder and manslaughter; but instruction No. 6, on the subject of self-defense, is criticized because it is said that this instruction left to the jury to say whether the Millers, or either of them, at the time Combs was killed, were in danger of death or great harm at his hands, in place of telling the jury that they should acquit if they believed that the Millers, or either of them, had reasonable grounds to be lieve that they or either of them were in danger of death or great harm at the hands of Combs. It is true that an acquittal on the ground of self-defense rests on what the defendant believes and has reasonable grounds to believe, and not on what the jury may believe. In other words, this instruction, in place of reading as it does: "If the jury shall believe from the evidence that the deceased, Sam Combs, had unlawfully and forcibly assaulted the home of the defend ants, and if the jury shall further believe from the evidence that the defendants, or either of them, or any member of the family, were in danger of death or the infliction of some great bodily harm at the hands of the deceased at and before the time of the shooting, then in such event the defendants, or either of them, had the right to use such force" -should have read: command as was necessary or believed by them to be necessary in the exercise of reasonable judgment to repel the assault." This instruction would have been in better form if the words we have indicated had been inserted. But the omission from this instruction at the place mentioned of the words, "they or either of them believed or had reasonable grounds to believe that they,” etc., did not prejudice the substantial rights the jury were distinctly told that they should acquit the Millers, and each of them, of the accused, because in other instructions if they or either of them believed that they, judgment to repel such assault," they should acquit. instruction is the use of the words "more The particular objection to this part of the force than was actually necessary," but we do not find any substantial error in the use of the words criticized. [5] It is further insisted that as Delilah Miller, the only witness who gave direct evidence of the circumstances under which Combs was shot and killed, testified that he violently and forcibly broke into the room in which she was sleeping, and that she shot him because she believed she was in danger have been told in substance that she had the and to protect her home, the jury should right to shoot and kill to protect her home from the violent and forcible attack of the intruder. But we think the court properly instructed the jury on this subject. The law does not authorize a person to take the life of another merely because such other is forcibly trespassing on his premises. To excuse the homicide, under circumstances like this, it is essential that the shooting and killing should be believed by the person accused necessary or reasonably necessary to protect himself or his family from danger. "If the jury shall further believe from the [6, 7] It appears that, after the jury had evidence that the defendants, or either of them, taken the case, they returned to the courtbelieved or had reasonable grounds to believe room and requested the court to permit them that they, or either of them, or any member of to question Sallie Ann Miller, who had testithe family, were in danger of death or the in-fied as a witness for the accused. In refliction of some great bodily harm at the hands of the deceased at and before the time of the shooting, then the defendants, or either of them, had the right to use such force at their sponse to this request, the court recalled Mrs. Miller to the witness stand, and Mr. Hayes, one of the jurors, in the presence of (222 S.W.) the court, the counsel for the defendant and the commonwealth, and the defendants, asked her the following questions, to which she made the following answers: "Q. We want to ask you if counsel for the defendant asked you on the trial if App Eversole and Andy Williams threatened to put your son in the penitentiary unless you produced evidence against Allen Miller? A. They was talking to me, said I had better know something against Allen; they said it would be a heap better for me if I knowed something. Q. The point we were after was whether the witness was threatened that, unless she produced evidence against Allen Miller, her son would be sent to the penitentiary? A. They said it would be better. That's the way I stated it at the first start. They said it would be better turn to the courtroom and ask that a witness, who has testified, be recalled if he is present or so convenient as to be quickly secured and in the presence of the court, the parties to the case and their attorneys ask the witness any pertinent, competent questions relating to matter brought out on the examination of the witness. After a careful consideration of the case, we have reached the conclusion that no error prejudicial to the substantial rights of the defendants was committed during the trial, and the judgment is affirmed. BURN. if I did know something against Allen Miller; CHESAPEAKE & 0. RY. Co. v. BLACKit would be better on my boy if I did know something against Allen Miller. I think that's the way I stated it the first time. I don't think (Court of Appeals of Kentucky. June 11, 1920.) I have forgot. The Court, to the Jury: Is that. Damages 138-$700 held excessive for all you wanted to ask her? The Jury: Yes." Counsel for the defendants objected and excepted to this evidence, and moved the court to have the stenographer's notes of the evidence given by the witness read to the jury upon the point she was inquired about, which motion was overruled. In order to understand the purpose of the jury in asking these questions, it should be stated that Cager Miller, a son of Sallie Ann, was indicted in connection with Allen and Delilah Miller, but the indictment against him was either dismissed or the case continued as to him; it does not appear which. At any rate, he was not put upon his trial with Allen and Delilah Miller; and counsel for the defendants endeavored to show that the prosecution procured the indictment of Cager Miller in order to force his sister, Nancy Miller, the principal witness for the commonwealth, to give the evidence that she did by the threat made to her mother, Sallie Ann Miller, as well as herself, that unless she did connect Delilah and Allen Miller with the murder her brother, Cager, could be prosecuted and sent to the penitentiary; and on the examination of Nancy and her mother, Sallie Ann Miller, counsel for the defendants endeavored to show by them the state of facts stated, but failed to do so, except that Sallie Ann Miller, when first introduced as a witness, testified substantially as she did when recalled by the jury. injury to property by fire. In an action against a railroad company for damages from fire, where there was no standing timber burned, objections being sussatisfactory evidence as to the value of the tained to questions as to the injury to the property per acre and to the timber destroyed, and there being no evidence as to the value of the timber before and after the fire, a verdict for $700 was excessive, notwithstanding testimony that the injury to fences was $500, where the damages for that item were laid at less than $200. CLAY, C. Rufus Blackburn, who owned tract of land in Floyd county, adjoining the right of way of the Chesapeake & Ohio Railway Company, brought suit against the We do not find any objection to the course pursued by the trial judge in permitting Sal-company to recover damages for injury to lie Ann Miller to be recalled and examined by the jury in the presence of the accused and their counsel. Any member of the jury has the right, during the examination of a witness, to ask any competent, pertinent question, and, after the jury has retired to consider their verdict, they have the right to re his property caused by fire. The acts of negligence relied on were defective spark arresters, negligent operation, and permitting combustible material to accumulate on the right of way. In his petition the damages were itemized as follows: Injury to timber, $720; burning about 200 panels of rails, $100; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes burning 25 panels of partnership fence, $12.50; burning and injuring 500 yards of wire fence, $50. The company filed an answer, denying the allegation of the petition. A trial before a jury resulted in a verdict and judgment for plaintiff for $700. The company appeals. [1] The first contention of the company is that the verdict is excessive. Plaintiff testified that he owned 90 acres of young timber, consisting of black oak, white oak, chestnut, yellow locust, beech, and hickory. A large amount of the timber was completely destroyed, while a considerable portion of it was burned enough to kill it. After stating that he had handled timber for a number of years, and was familiar with the value and price of growing timber in that community, and that he was well enough acquainted with the timber in question to state what it was worth per acre, and how much of it had been injured, he was asked the following ques tion: "What, in your opinion, Mr. Blackburn, was the reasonable amount of injury to the property per acre, to the timber that was growing there, that was burned, destroyed, or injured?" An objection was sustained to this question. Two other witnesses were also asked to state the extent of the damage to the timber, but a similar objection was sustained to their testimony. The result was that no witness gave the value of the timber before and after the fire, or stated any facts from which the jury could find the extent of the damage. True, there was evidence by plaintiff tending to show that the reasonable cost of replacing the 200 panels of rail fence was $500; yet plaintiff fixed his damages on this item at $100 and the entire damage to the fencing at $162.50. On the item of fencing, therefore, his recovery was limited to that amount of damages asked, or $162.50, and there being no satisfactory evidence tending to show the extent of the damage to the timber, it is clear that the verdict for $700 is excessive. C. & O. Railroad Co. v. Coleman, 184 Ky. 9, 210 S. W. 947. HAZEL v. McCULLOUGH et al. (Court of Appeals of Kentucky. June 8, 1920.) 1. Limitation of actions 25 (3)-Action on note must be commenced within five years. Under Ky. St. § 2515, an action on a promissory note placed on the footing of a bill of exchange must be commenced within five years next after the cause of action accrues. 2. Limitation of actions 25 (3)-Notes negotiated before maturity become bills of exchange within five-year statute. Notes which were not only negotiable, but were actually negotiated before maturity, were placed on the footing of a bill of exchange to bring them within the five-year statute of limitations, Ky. St. § 2515. 3. Limitation of actions 167(1)-Lien securing notes barred with them. Where notes were barred by limitations, the lien by which they were secured also was barred. 4. Limitation of actions 172-Defense of statute, though personal, can be set up by grantees or mortgagees. The grantees or mortgagees of property subjected to liens by the owner with respect to the property, and notes secured by liens thereon, stand in his shoes, and can set up any defense, as the statute of limitations, that he might himself have set up, either to defeat recovery of the property or its sale on foreclo sure. Appeal from Circuit Court, Logan County. Browder & Browder and Miriam O. Stev- CLAY, C. On June 6, 1906, J. W. Cottrell and wife, by deed which was recorded on June 19, 1906, conveyed to D. N. Combs certain land located in Logan county. The consideration was $500 cash and three notes of D. N. Combs for $291,66% each, payable to the order of J. W. Cottrell and due in two, four, and six months after date, and secured by a lien on the land conveyed. In due course, for value and before their maturity, the notes were sold and transferred to the Owensboro Savings Bank & Trust Company, and were afterwards purchased by W. S. Hazel. [2] Another contention is that the recovery on each item of damage should have been limited by the instruction. The point is well taken. Since there was evidence tending to show that the damage to the fencing was largely in excess of the amount claimed in the petition, the jury had the right under On July 29, 1907, D. N. Combs and wife the given instruction to exceed that amount, conveyed the land to J. S. Cottrell, who in and it is altogether probable that they did so. turn sold the land to J. W. McCullough on Clearly, where the damages are itemized, and January 24, 1913, for a consideration then the amount of each item is fixed in the pe-paid in full. Neither Cottrell nor McCultition, the instruction should limit the re-lough assumed the payment of the notes in covery on each item to the amount claimed. question, and since its purchase, McCullough Judgment reversed, and cause remanded has been in possession of the land. for a new trial consistent with this opinion. Hazel brought suit against D. N. Combs, the (222 S.W.) maker of the notes, to recover on the notes and to enforce his vendor's lien. Combs made no defense. In addition to a personal judgment against Combs, plaintiff was awarded a lien on the land, and the land was ordered sold. The judgment directing a sale of the property was afterwards set aside, and an amended petition filed, making J. W. McCullough a party defendant. McCullough answered, and pleaded the five-year statute of limitations. His plea was sustained, and it was adjudged that plaintiff has no lien on the land. Plaintiff appeals. [1-3] Under our statute, an action upon a promissory note, placed upon the footing of a bill of exchange, must be commenced within five years next after the cause of action accrued. Section 2515, Kentucky Statutes; Southern National Bank v. Schimpeler, 160 Ky. 813, 170 S. W. 178. The notes in question were not only negotiable, but were actually negotiated before their maturity, and were therefore placed upon the footing of a bill of exchange. As the suit was not brought within five years after the notes matured, they were barred by limitation, and, that being true, the lien by which they were secured was also barred. Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181; McCracken County v. Mercantile Trust Co., 84 Ky. 344, 1 S. W. 585, 8 Ky. Law Rep. 314; Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682. Indeed, the foregoing rules are conceded by counsel for appellant, but it is insisted that they are not applicable to the facts of this case, because the plea of limitation is a personal one, and as Combs, the debtor, did not rely on the statute, McCullough, his vendee, cannot rely on it. In the case of Lord v. Morris, 18 Cal. 482, Chief Justice Field used the following language: HOPKINS et al. v. DICKENS et al. (Court of Appeals of Kentucky. June 1, 1920.) I. Statutes 181(1)—In interpreting a statute, intention of the Legislature should be ascertained. To interpret a statute, it must be ascertained and determined what the Legislature meant and intended, as the intention of the Legislature is what statute law is. 2. Statutes 190-Where the language is plain and unambiguous, there is no room for judicial construction. Where the language of a statute is plain and unambiguous and only one meaning can fairly be deduced from it, there is nothing for the courts to do but to give it such meaning, and there is no room for judicial construction. 3. Statutes 181(1)-Where ambiguous intent ascertained from entire act and objects to be accomplished. Where a statute is ambiguous and uncertain, the legislative intendment may be ascertained from a consideration of all of the provisions of the act, and in ascertaining such insion of the enactment of the statute, as well tent the objects to be accomplished, the occaas other existing legislation upon the subject may be considered. 4. Statutes 183-Not given a literal construction defeating intent. A statute will not be given a literal construction, where such construction will defeat the intention of the Legislature or lead to an absurdity, and in such cases the real purpose of the Legislature will prevail over the literal import of the words. 5. Schools and school districts 42(2)—Petition for graded school district need not be signed by twenty-five per cent. of voters. "But it is said that the plea of the statute Ky. St. Supp. 1918, § 4464, declaring that is a personal privilege of the party, and can- it shall be the duty of the county judge in each not be set up by a stranger. This, as a gen- county, on the written petition signed by at eral rule, is undoubtedly correct with respect least 25 per cent. of the legal voters who are to personal obligations, which concern only the taxpayers in the justice's district, town, or party himself, or with respect to property city, etc., to make an order fixing the boundawhich the party possesses the power to charge ries of any proposed graded common school or dispose of. But with respect to property district, etc., a petition for establishment of a placed by him beyond his control, or subject-graded common school district in a justice's ed by him to liens, he has no such personal district need not, in view of section 4468a3, privilege. He cannot at his pleasure affect the providing for the establishment of graded cominterests of other parties. His grantees or mortgagees, with respect to the property stand in his shoes, and can set up any defense that he might himself have set up to the action, either to defeat a recovery of the property or its sale." [4] This view has been generally adopted by the courts (17 R. C. L. § 331, p. 963), and prevails in this state. Tate v. Hawkins, supra; Duvall v. Parepoint, 168 Ky. 11, 181 S. W. 653. It follows that the court did not err in sustaining McCullough's plea of limitation. Judgment affirmed. mon schools in cities of the first, second, third, and fourth classes, be signed by 25 per cent. of the voters of the entire justice's district, but the requirement should be construed as merely prescribing qualification of the petitioners, and the article "the," preceding justice's district, may be construed as "a." 6. Schools and school districts ~42(2)—Petitioners for graded school district may sign separate petitions. Where four petitions for a graded common school district, which were exact copies of each other, were circulated, and more than 25 per cent. of the legal voters who were taxpay. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 7. Schools and school districts 42(2)-Approval of board and superintendent of graded common school district must be secured before county judge can act. ers within the boundaries of the district signed | trict is situated within the bounds of the some one of the petitions, those petitions may same justice's district. The pleadings admit be treated as a single petition, sufficient basis that the election, held within the proposed for an election to establish the district. graded common school district by the legal voters thereof, to determine whether they would vote an annual tax upon the property and polls of white persons and corporations within the district for the purpose of maintaining a graded common school and for the erection, purchasing, or repairing of suitable buildings therefor, if necessary, and for the selection of trustees, was held on April 19, 1919, and resulted in a majority in favor of the imposition of the tax and the establish8. Schools and school districts 48 (6)-ment of the district. Thereafter another County board of education is corporation election was held in the district upon the and must act as such. The written approval of the county board of education and the county superintendent of schools of a petition for the establishment of a common graded school district must be secured before the county judge can act on the petition and order an election. The county board of education is a corporation as the trustees of a school district are a corporation, and must act as such, or else its acts are ineffectual. 9. Schools and school districts 48 (6)-To act, quorum of county board must be present, and all members must have notice. To act, the county board of education must have present a quorum of its members, and all must have had notice and opportunity to be present. proposition whether or not the trustees should be authorized to issue bonds of the district in an amount not exceeding the limit provided by sections 157 and 158 of the present Constitution of this state, for the purpose of providing suitable grounds, school buildings, furnishing, and apparatus for the district, and that at such election two-thirds of the voters voting at the elec tion voted in favor of the issue of the bonds. The latter election, as we presume, was held under the provisions of section 4481, Ky. Stats., and in accordance with the requirements of that statute. At least there is no complaint made of any irregularity touchWhere the county board of education adopt-ing that election. The appellants, who were ed a resolution approving a petition for the the plaintiffs below, however, assail the vacreation of a common graded school district, lidity of both elections upon the grounds which was duly entered upon its records and was subscribed by chairman and secretary, and each member of the county board indorsed on petition for establishment his approval, held that, as the board had adopted a resolution of approval, the written approval will be deemed sufficient; the matter being only one of intellectual approval. 10. Schools and school districts 42(2)—Approval of petition for school district sufficient, though members of county board signed as individuals. that the district was not established in accordance with the law, and that the county court had not jurisdiction of the subjectmatter when it entered its order defining the boundary of the district and directing the sheriff to open a poll and hold an election in the district as provided in section 4464, supra, the appellants alleging that both of the elections were void, and that the trustees, or pretended trustees, of the district were proceeding to levy and collect taxes though the establishment of the district was valid, and sought to have them restrained from any further levies or collection of taxes upon the property or polls of the district, Bertram & Bertram, of Monticello, for ap- and to declare the entire proceedings null pellants. and void. A statement of facts was agreed Duncan & Bell, of Monticello, and J. G. upon by the parties to the following effect: Smith, of Albany, for appellees. Appeal from Circuit Court, Clinton County. Suit by G. D. Hopkins and others against W. A. Dickens and others, trustees of a graded common school district. From a judgment for defendants, plaintiffs appeal. Affirmed. as (1) That the proposed graded common school district is within the boundaries of the First HURT, J. This appeal involves the valid- justice's district of Clinton county, and that ity of a proceeding which was instituted and the boundaries of the school district interminated in the year 1919 under the pro- cludes the whole of the town of Albany, visions of section 4464, Ky. Stats. Supp. 1918, which is a town of the sixth class; (2) that to establish a graded common school dis- two-thirds of the territory included in the trict, which includes within its boundaries proposed graded common school district is the town of Albany, which is of the sixth without the corporate limits of the town of class, and a certain portion of the adjacent Albany; (3) that less than 25 per centum of territory, but all of the territory included the legal voters and taxpayers residing in in the proposed graded common school dis- the First justice's district subscribed the pe |