verdict of the third jury on the ground that the verdict is not sustained by the evidence. While the evidence of the two physicians introduced as experts was entitled to very little weight, on account of the meagerness of the facts on which their conclusion was based, we do not see there was any material error in its admission. The case of Manhattan Life Ins. Co. v. Beard, 23 Ky. Law Rep., 1747, was upon a policy materially different from that before us in its provisions. A case more like this is Blackstone v. Standard Life and Accident Ins. Co., 3 L. R. A., 486.

The court instructed the jury that they might, in their discretion, allow or disallow interest on the amount, if they found for the plaintiff. The jury found for the plaintiff $2,000, without interest. But the court, on motion, disregarded so much of the verdict as did not give interest, and entered a judgment in favor of the plaintiff for $2,000, with interest from the time the money was due under the policy. This was correct; it was a suit upon a written contract. The money bore interest from the time it was due, and the court erred in submitting the question of interest to the jury. The finding of the jury in favor of the plaintiff entitled her to a judgment for the amount, with interest from the time at which, under the contract, the money was due. (Gore v. Buck, 17 Ky., 209; Carr v. Robinson, 71 Ky., 269; Reynolds v. Powers, 17 Ky. Law Rep., 1059; Cook v. Clark, 21 Ky. Law Rep., 316.)

Judgment affirmed.

LOCKE v. COMMONWEALTH.

(Filed May 28, 1903-Not to be reported.)

1. Criminal law-Local option-Construction of statutes-Appellant was indicted for a violation of a local option law, provided by special statute of 1876, which prohibited the sale of spirituous, vinous or malt liquors in Glasgow, and a conviction and fine of $100 was imposed upon him, from which he prosecutes this appeal. Prior to the commission of the offense Barren county had, by a vote of the people, adopted the provision of the general 'election law as provided by chapter 81, Kentucky Statutes, and it is insisted that the special act of 1876 was repealed by the adoption of the general local option law in Barren county. Held-That all special statutes prohibiting the sale of liquors enacted prior to the adoption of the Constitution are unrepealed, except where they have been vacated in the manner prescribed by section 2560, Kentucky Statutes, which is by a vote of the people in the district affected by the statute authorizing the sale of liquor. As this has not been done in Glasgow, the special statute of 1876 and the general prohibition law are both in force there, the former modified by the latter as to procedure, the quantity of liquor constituting the offense and the penalty.

2. Evidence-Proof of the sale of a bottle of beer authorized a conviction, as it is a matter of common knowledge that the word "beer," when used without a prefix, signifies malt liquor, and that wherever malt liquor is not intended to be expressed by the use of this word, some prefix is used, such as root beer, ginger beer, etc.; but when the word "beer" is used alone, it means either common, lager or bock beer.

Herman Morris for appellant.

C. J. Pratt and M. R. Todd for appellee.

Appeal from Barren Circuit Court.

Opinion of the court by Judge Barker.

The appellant was indicted by the grand jury of Barren county, charged with the offense of keeping a tippling house in the town of Glasgow, Ky., by selling to one Capt. Tom Allen malt liquor by the pint, to be drunk in the town of Glasgow, and which was drunk therein, contrary to the form of the statute in such cases made and provided. This indictment was had by virtue of an act, entitled "An act to prohibit the sale of spirituous, malt or vinous liquors in Glasgow, and within one mile from the outside boundary thereof," approved February 28, 1876.

Upon the trial of the case the evidence of the Commonwealth showed that appellant was the owner and in possession of a drug store in Glasgow; that within twelve months next before the finding of the indictment the witness for the Commonwealth, Capt. Tom Allen, purchased from a brother of appellant two pint bottles of beer, for which he paid, or agreed to pay, 25 cents. This purchase was made in the drug store of appellant, and the brother who made the sale was often seen attending to the ordinary business of appellant in the store. The witness drank one bottle of the beer in the store at the time of the purchase; the other he carried away with him. Nothing was said as to what kind of beer was purchased; witness experienced no intoxicating effect from what he drank. In explaining why he made the purchase he said: "I was quite tired, and thought it would help me, and I got it, as I often do in the cities; I just get a glass of beer and go ahead."

This was all the evidence introduced by the Commonwealth, and thereupon appellant moved the court for a peremptory instruction to the jury to find him not guilty, which was overruled, to which ruling of the court he excepted. The appellant then called the clerk of the county court of Barren county, whereupon the Commonwealth's attorney "agreed that the record in the Barren county clerk's office, showing that an election had been held in Barren county in 1893, to take the sense of the voters of said county as to whether or not spirituous, vinous or malt liquors should be sold in Barren county; also the record showing that said election resulted in the county voting in favor of prohibiting the sale of spirituous, vinous and malt liquors in said county, and the records showing the orders filing said report of election officers and the final order showing that said prohibition law is in effect in Barren county; and it was agreed by plaintiff that said records might be considered as read, but plaintiff objected to the competency of said evidence, and the court sustained the objection, to which ruling defendant excepted, and for the purpose of this appeal the record in the case of Miller v. Com monwealth and Locke v. Commonwealth be considered and filed as a part of this record, upon the placing of said records by defendant with this record, before its submission in the Court of Appeals, and said defendant need not file a copy of said record as a part of the testimony of N. D. Terry.' The defendant offered no further testimony. Whereupon the court instructed the jury, who returned a verdict of guilty, and fixed the punishment by a fine of $100. Appellant's motion for a new trial having been overruled, he has appealed for the purpose of reversing the judgment against him.

Appellant now insists that there was no evidence to show that he had sold malt liquors in the city of Glasgow, as charged in the indictment, and that the court should have sustained his motion for a peremptory instruction. This claim is based upon the theory that there was no evidence to support the allegation of the indictment, that he had sold malt liquors; in other words, the contention is that the word "beer," without any prefix, does not warrant the conclusion that the sale was of malt liquor. Respectable authority is cited on both sides of this proposition. We think that it is a matter of common knowledge that the word "beer," when used without a prefix, signifies malt liquor, and that wherever malt liquor is not intended to be expressed by the use of this word, some prefix is used, such as root beer, ginger beer, etc.; but when the word "beer" is used alone, it means either common, lager or bock beer. That the witness in this case used the word in this sense is shown when he said: "I was quite tired, and thought it would help me, and I got it, as I often do in the cities; I just get a glass of beer and go ahead."

The case of Hurst v. Commonwealth, 23 Ky. Law Rep., 365, is conclusive of this question. In that case Hurst was indicted for selling malt liquors in violation of a special act of the legislature, prohibiting the sale of liquor in the counties of Bell, Harlan and Leslie. The opinion shows that the evidence for the Commonwealth established the fact that the defendant sold beer at Mount Pleasant, Harlan county; no prefix to the word "beer" was used; there were other questions in the case, but it was necessary for the court to hold that the word "beer" signified malt liquor, in order to reverse the judgment granting the defendant a peremptory instruction at the close of the Commonwealth's testimony. The court said: "We think the testimony was such that the question of guilt or innocence should have been submitted to the jury under appropriate instructions."

The introduction by the appellant of the record showing that Barren county had, prior to the commission of the offense complained of, prohibited the sale of spirituous, vinous and malt liquors by an election held for that purpose under the provisions of the statute of March 10, 1894, being chapter 81 of the Kentucky Statutes, makes it necessary for us to decide whether the general prohibition law, or the special act of 1876, or both, are in force in the city of Glasgow; in other words, whether the special statute has, or not, been repealed by the election under the general law.

In the case of Stamper v. Commonwealth, 19 Ky. Law Rep., 1014, it was held that neither the adoption of the present Constitution nor the enactment of the General Statutes, concerning the prohibition of the sale of liquor in the Commonwealth, set aside, or vacated, an election prohibiting the sale of liquor under a special statute, entitled “An act to regulate the selling, procuring for, or giving of, spirituous, vinous or malt liquors, or any intoxicating drinks in the county of Carter," approved March 18, 1886, and that this special statute remained in force, modified, however, by the provisions of the general prohibition law, so as to make the procedure, amount of sale, and penalty, conform to the provisions of the latter, this being necessary to make the general law comprehensive of the whole subject, and enforced with uniformity throughout the Commonwealth.

In the case of Thompson v. Commonwealth, 20 Ky. Law Rep., 397, it was

said: "This case presents for decision the question whether section 61 of the Constitution of 1891, or the act of March 10, 1894, embodied in chapter 81, Kentucky Statutes, adopted pursuant thereto, had effect to repeal a special or local act prohibiting sale or gift of spirituous, vinous or malt liquors, such as the act in force in Rockcastle county at date of adoption of Constitution."

The court then reviewed the opinion in Stamper v. Commonwealth, supra, and held that special acts in force prior to the adoption of the Constitution, prohibiting the sale of liquors, were not repealed by the Constitution or the general prohibition law. In response to a petition for rehearing the court said: "This court held that the doctrine announced by Chief Justice Lewis in the Stamper case, as applicable to divisions of the State in which a vote had been taken against the sale of liquor in such locality, and was also applicable to localities where the legislature had prohibited such sale without submission to the popular vote, but that all local laws upon the subject were modified by the provisions of the general law as to procedure, amount of liquor permitted to be sold, and penalty. In other words, that wherever a local law was in force, either through vote of the people or by legislative will, the sale of liquor by retail remained prohibited, not according to the terms of the local act, but as if a vote had been had in such locality against the sale of liquor under the act of March 10, 1894."

In the case of Brann v. Hart, 97 Ky., 735, it was held that the "manner in which an existing prohibition statute may be repealed or nullified, as well as the manner in which the sale of spirituous, vinous or malt liquors may be hereafter prohibited in any city, county, town or precinct, is expressly provided in chapter 81 of the Kentucky Statutes, entitled local option law, which was intended to, and does, regulate the whole subject as provided for in section 61 of the Constitution. And as it does not appear that the act of March 20, 1880 (special prohibition law), has been repealed or nullified in the manner provided in chapter 81, it must be regarded in full force.”

The case of Raubold v. Commonwealth, 21 Ky. Law Rep., 1125, involved the act of 1876, prohibiting the sale of liquor in Glasgow, which we have under discussion. Raubold was indicted under this special act, after the general prohibition law had been adopted by the people of Barren county, and it was contended there, as here, that the special act was superseded by the general law, and it was sought to differentiate it from the Stamper and Thompson cases. To this argument the court said: "The effect of these cases (Stamper and Thompson) is that the laws which, by section 61 of the Constitution, were not to be repealed by that section were to be considered as continued in force in the territory to which they were made applicable, but modified as to procedure, quantity of liquor which might or might not be sold, and penalty to be imposed for violation of the law, by the general local option law to which, in those respects, they were made to conform. The section provides: 'But nothing herein shall be construed to interfere with, or to repeal, any law in force relating to the sale or gift of such liquors.' And we are of opinion that section 2560, Kentucky Statutes, containing in effect local laws in localities where the sale, etc., has been prohibited by special legislation, applies to the Glasgow statute, which is a prohibitory statute, for it prohibits the sale of liquor to be drunk in the district created

by the act. This is a limitation of the scope of the prohibition, but, so far as it goes, it is still prohibitory."

The court then proceeded to affirm the judgment of conviction had under the special act of 1876, thus holding that the special act was in full force and effect after the general prohibition law had been adopted by the people of Barren county.

In the case of Locke v. Commonwealth, 24 Ky. Law Rep., 64, the appellant (the same person who is appellant here) had been indicted by the grand jury of Barren county for violating the local option law, the evidence showing the sale of beer in the city of Glasgow. The court, in affirming the judgment of conviction, held that the local option law, under chapter 81 of the Kentucky Statutes, had been lawfully carried by the people, and was in full force and effect in Barren county.

A review of the cases decided by this court bearing upon the principles involved here leads to the conclusion that all special statutes prohibiting the sale of liquors, enacted prior to the adoption of the Constitution, are unrepealed, except where they have been vacated in the manner prescribed by section 2560 of the Kentucky Statutes, which is by a vote of the people in the district affected by the statute authorizing the sale of liquor. As this has not been done in Glasgow, it follows that the special statute of 1876 and the general prohibition law are both in force there, the former modified by the latter as to procedure, the quantity of liquor constituting the offense, and the penalty.

Although the appellant in this case was indicted under the special act of 1876, the procedure and the penalty were in accordance with the general prohibition law, which was right and proper. The question as to the guilt of the appellant was properly submitted to the jury in the instructions, and perceiving no error in the record the judgment is affirmed.