therefore, be disturbed. It was not error to refuse to allow appellant to prove that warehouse receipts of appellees were seen in his territory as this was not sufficient evidence to show there had been an actual sale of whisky in his territory. Evidence as to the reasons for employing appellant was incompetent.

Geo. S. Shanklin for appellant.

C. J. Bronston for appellees.

Appeal from Fayette Circuit Court.

Opinion of the court by Judge Nunn.

The record in this case is voluminous, and was made on a common law issue to determine the matters of account growing out of a contract for services between appellant and appellees. The trial in the lower court resulted in a verdict in favor of appellant for $1 only, and he has appealed to the court.

He alleged in his petition, in substance, that he was employed by appellee to travel and make sales of appellee's liquor, appellee being a distiller; that he was assigned the territory of the New England States, the State of New York, outside of Brooklyn and New York City, and the northern part of the State of Ohio in which to travel and make the sales; that it was agreed that he was to receive as compensation $125 per month and 50 cents for each case of whisky and each barrel sold in his territory, whether sold by himself or others, and he was also to be allowed all expenses incurred by him; that this contract was made and entered into about the 1st of May, 1899, and continued under these terms until the first of the year 1900, when he says their contract was modified in this, that his expenses were to be limited from that time to not exceeding $50 per week while he was in the city of Boston and not upon the road, and the contract continued as thus modified until about the 1st of May, 1901, when the contract was again changed. He was then to be allowed $75 per week in lieu of traveling expenses and of salary and commissions, fixed by the contract in its original form, and he was to be allowed from that date $2.50 per barrel on all whisky sold in the above territory, whether by the appellant or otherwise; and alleged that under this last contract that appellee was indebted to him in the sum of about $125, and under the previous contracts in a balance of about $5,000.

Appellee agreed to the original contract, as stated, except it denied that his expense account was to be unlimited, and alleged that it was not to exceed $30 per week, and denied that he was given the State of New York and the northern part of the State of Ohio as part of his territory in which to travel, and denied that the contract was modified in any respect, and that this contract continued until about the 1st of May, 1901; and denied any modification of this contract, except it stated that about the first of the year 1900 that it agreed that the expense account should be increased to not exceeding $50 per week. It also alleged that during the existence of this contract appellant drew many drafts upon appellee for salary, expense account and commissions on sales, which, together with what they paid him in checks, amounted to $8,750.65, which overpaid appellant about $2,300; it denied that it employed appellant, or that he labored for it after about the 1st of May, 1901, but it alleged that it had sold the whisky output from

its distillery for a number of years, beginning the 1st of May, 1901, to the J. E. Pepper Distributing Co., one Wolf being the president thereof, and that Wolf employed appellant to labor for it from that date, but that it paid to appellant for the distributing company the sum of $625, and charged the same to the distributing company, which was paid to appellee by it.

Appellant was the only witness who testified in his behalf. He proved his contract as alleged by him. Appellee introduced its president, its vicepresident and its secretary, and proved the contract as alleged by it. A great amount of correspondence between the parties was introduced as evidence, which threw but little light upon the questions at issue, but is evidence of great extravagance upon the part of appellant and by appellee for suffering it. The appellant contends that the court erred to his prejudice by refusing to give instruction "A" offered by him. The appellant is mistaken in this. The court's instruction, No. 5, was, in substance, the same as offered, except that the court did not authorize the jury to allow the appellant anything as commissions on sales after the 1st of May, 1901. The court was right in this, for there was not any proof that any whisky of appellee was sold in the territory named after the 1st of May, 1901. We understand that appellant's counsel concedes, or in effect concedes, this in his brief, but complains that the court erred to his prejudice in refusing to allow appellant to testify that while traveling in that territory after the 1st of May, 1901, he saw in the possession of two or three parties warehouse receipts for Pepper whisky which were issued by James E. Pepper & Co., which he claimed was evidence of sales of whisky of appellee in his territory on which he was entitled to commission.

If these receipts, in the possession of others, were evidence of sales made within that territory, then the receipts themselves were the best evidence, and the appellant should have produced those receipts, or have taken the depositions of those who held them. Even if it had been competent for appellant to prove that he saw some of these warehouse receipts in his territory, it was not sufficient evidence to show there had been an actual sale and delivery of liquor therein.

The president of the appellees, James E. Pepper, in giving his evidence, stated that he was induced to make the contract with his brother, the appellant, by the importunities of their sisters; in effect, that he gave the appellant the contract as a matter of charity. Appellant offered one of his sisters as a witness to prove that this was not correct. The court refused to allow her to testify on this point. Of this the appellant complains.

There was other evidence offered by both parties as to the inducement for the making of the contract, and of the reasons why the contract was made and entered into, and in this way each was endeavoring to discredit the other before the jury. This was improper, and the court should have prevented it. The parties agree that the contract was made, and the only question to be tried was the nature and extent of it, and what had been paid the appellant thereunder. Such testimony would not have elucidated the questions at issue, nor enabled the jury to arrive at a proper verdict.

Perceiving no error prejudicial to the appellant the judgment of the lower court is, therefore, affirmed.

SOUTH COVINGTON AND CINCINNATI STREET RY. CO. v. CON STANS.

(Filed June 4, 1903-Not to be reported.)

1. Street railways-Negligence-Instructions-Appellee recovered a verdict against appellant for $6,000 as damages for severe and permanent injuries received by her as the result of a derailment of one of appellant's electric cars upon which she was a passenger. Appellant relies on an error in an instruction given as grounds for reversal. Held-That said instruction was not erroneous in which the court told the jury that appellant's duty was to. prevent the car from running at a rate of speed which was dangerous, and that the failure to exercise such care was negligence.

2. Evidence—The fact that a witness for plaintiff had a suit pending against appellant was relevant, but the amount that he claimed or the amount that may have been awarded him by the jury was not relevant.

Ernst, Cassett & McDougall and L. J. Crawford for appellant.

James C. Wright for appellee.

Appeal from Campbell Circuit Court.

Opinion of the court by Judge O'Rear.

Appellee recovered a verdict against appellant for $6,000 as damages for severe and permanent injuries received by her as the result of a derailment of one of appellant's electric cars upon which she was a passenger.

Three grounds of reversal are presented. The first is: It is claimed appellant was not negligent in the operation of the car. For some distance before the point was reached where the accident occurred there was a grade down which the car was running. A number of witnesses testified that the car was run on this occasion at an unusually high rate of speed, so much so, in fact, that some of the witnesses instinctively felt, as they said, that some accident was liable to happen, and braced themselves for the shock. At the point in the grade where the accident occurred was a curve. Near this was a ravine. The car left the track at this curve and plunged down the ravine. The evidence on behalf of appellee was abundant to sustain the finding of the jury that the manner in which the car was run at the time and place the accident occurred was negligent. The amount of the verdict is not complained of. The second ground of reversal is because of the second instruction given to the jury. The first instruction told the jury that if they believed from the evidence that the car was negligently run at a rate of speed that was dangerous, and that by reason of said speed the car left the track, precipitating it into Taylor's creek, whereby plaintiff was injured, they should find for her compensatory damages for such pain and suffering, and for such destruction or diminution of her power to earn money, either or both, as resulted from the injury. The second instruction was: "The court instructs the jury that the defendant owed the plaintiff the duty to exercise the utmost care and skill which prudent persons exercise under similar circumstances, to prevent said car from running at a rate of speed which was dangerous, and that their failure to exercise such care is in law negligence."

The criticism of the instruction is that it is said to assume that the rate of speed with which the car was run was dangerous. We do not so understand

the instruction. The court was telling the jury by this instruction what was the duty of appellant in regard to the rate of speed at which it should have run its car, and the court told them that appellant's duty was to prevent the car from running at a rate of speed which was dangerous, and that the failure to exercise such care was negligence. We think this instruction correctly stated the law, although it may have been couched in language less subject to criticism.

The third ground relied upon is that the court erred in refusing the further cross-examination of witness Smyrl. This witness was a passenger upon the car at the time of the accident. It seems that he was also injured, and had brought a suit to recover damages for it. Appellant sought to show by the witness the amount of damages he had claimed in his action, as well as to show the result of the suit. It was said the purpose of this interrogation was to expose the bias of the witness. The court refused to permit it, and we think properly so. The fact that the witness had pending a suit against appellant for his injuries he claimed to have sustained in the same accident was relevant, but the amount that he had claimed, or the amount that may have been awarded him by the jury, could not be relevant upon any issue in this case.

The judgment is affirmed, with damages.

DANIEL v. BULLITT COUNTY.

(Filed June 4, 1903.)

1. Office and officer-Salaries-Evidence-Appellant was county judge of Bullitt county and after his induction into office the fiscal court of the county fixed his salary at $300 per annum which he refused to accept and prosecuted an appeal to the circuit court, where the court, on a verdict of a jury, fixed his salary at $300. On appeal appellant urges the error of the court in admitting and rejecting evidence. Held-That the court erred in confining the testimony of appellant's witnesses to reading sections of the statute prescribing the duties of a county judge, and in refusing to permit his witnesses who were familiar with, the duties and responsibilities of a county judge, to testify as to same. Only such witnesses as show themselves sufficiently acquainted with the duties of the county judge to testify understandingly thereto should be permitted to testify as to the value of his services.

2. Jurisdiction-The legislature has wisely vested in the fiscal court of each county the authority to fix and allow the salary of its county judge, but the authority thus conferred is not absolute; for its abuse there is a remedy, the right of appeal to the circuit court.

Chapeze & Halstead for appellant.

J. F. Combs for appellee.

Appeal from Bullitt Circuit Court.

Opinion of the court by Judge Settle.

1901.

Appellant was re-elected judge of the Bullitt County Court in November, His term of office, under and by virtue of his election, began the first Monday in January, 1903, and will end four years from that date.

At the March term, 1902, of the fiscal court of Bullitt county, held for the purpose of fixing salaries and attending to other business then before it, an order was entered by a majority vote of the members present fixing appellant's salary as county judge for the year 1902 at $300, payable quarterly, which sum, as shown by the order mentioned, he refused to accept. An appeal from the order and allowance of the fiscal court was thereupon taken by him to the circuit court of the county, and upon trial had in that court his salary for the year indicated was fixed by the verdict of the jury and judgment of the court at $300. A new trial was refused him by the circuit court, and the case has been brought to this court by appeal. Numerous errors are assigned for reversal, but only such of them will be considered as are deemed material. The office of county judge is one of great importance. For the performance of some of the duties required of him he is compensated by fees fixed by statute, but these are duties mainly clerical in their nature. For others of a weightier character, the value of which can not be estimated under the fee system, the law provides that he shall be paid a salary, to be fixed each year of his term of office by the fiscal court of the county. The duties and responsibilities of the office are more onerous in some counties than others, for which reason the legislature has wisely vested in the fiscal court of each county the authority to fix and allow the salary of its county judge, but the authority thus conferred is not absolute; for its abuse there is a remedy, the right of appeal to the circuit court.

It appears from the record that the appellant and his witnesses were refused permission by the lower court to enter upon a full explanation, in testifying before the jury, of the duties and responsibilities of his office as county judge, but were confined in the main to the introduction and reading of the several sections of the Kentucky Statutes relating to county judges and their duties. Indeed it appears that as many as sixty-eight sections of the statutes were thus required to be read by appellant while upon the witness stand.

This requirement of the court made the jury the judges of the law. It is not to be expected that the average jury would be sufficiently learned in the law to interpret statutes, or to distinguish between such duties of the county judge as are judicial and such as are ministerial, or to be able, unaided, to understand what services of that officer are remunerated by specified statutory compensation, or what compensation he is entitled to receive by way of salary. We think the jury were probably more confused than enlightened by the reading to them of the statute. Upon the other hand, a full explanation to the jury from the appellant and his witnesses, who were informed on the subject, in regard to the nature of such of his duties and the labor necessary to their proper performance, as are to be compensated by the salary allowed him, would have been sufficient to enable them to understand what was required of them, and it would of course have been the duty of the court to restrict the testimony of the witnesses to such statements as would have been competent under the rules of evidence.

We are of opinion that the lower court did not err in admitting testimony as to appellant's being interested as a partner in an agricultural implement store in Shepherdsville, and as to the time and attention which he gave to that business. We think the evidence competent not for the purpose of