seat near appellant and his counsel. Counsel for appellant moved the court to withdraw the case from the jury and to discharge it, because of the conduct of Waldon; but the court overruled the motion. It is claimed that this unusual conduct of Waldon prejudiced the appellant with the jury. Thurman and Johnson, as well as Waldon, were colored men. At most, the expression used by Waldon is of doubtful meaning and application; it is difficult to say whether it was meant to favor Thurman, or to injure him in the eyes of the jury. At any rate, he was promptly rebuked by the judge, and we do not see that Waldon's act in any way prejudiced the appellant. From the fact that Waldon took a seat near appellant and his counsel, it would seem that he was a friend of Thurman, and had intended by his action to befriend hini. No other fact has been developed in connection with this incident that would even tend to show that Waldon's action had been detrimental to the rights of Thurman. We conclude that the Circuit Court properly declined to discharge the jury. In the second instruction the jury were told that, if the defendant " in sudden heat and passion or in sudden affray, and without previous malice, and not in his necessary, or reasonably apparent necessary self-defense, so shot and wounded Sam Johnson, as that he then and there died thereby, then the defendant is guilty of voluntary manslaughter, included in the indictment herein, and you ought to so find." It is insisted that the court should have enlarged this instruction by incorporating in it the idea that, if Thurman acted upon some provocation which was reasonably calculated to excite his passions beyond the power of self control, they should not find him guilty of murder, but should find him guilty of voluntary manslaughter, as provided in said instruction. We are of opinion that the instruction as given covered the case under the evidence. Thurman had left the house where the difficulty started; had gone downstairs into the yard where he had another altercation with Alexander over the pistol, and had then gone back upstairs and renewed the difficulty with Johnson. In giving the instruction covering the effect of appellant's acts if done in sudden heat and passion, and without previous malice, and in his necessary self-defense, we are of opinion that his case was fully and fairly presented to the jury. The judgment is affirmed. 1. 2. 3 Middleton, et al v. Fields, et al. (Decided February 16, 1911.) Appeal from Harlan Circuit Court. Land-Compulsory Sle or Purchase-Not Allowable.-We know of no law to compel an adult to sell his land er to compel one to purchase it against will except in cases where the property cannot be divided without materially impairing its value. Widow Can Have Homestead or Dower-But Not Both.-A widow cannot be allotted both homestead and dower in her husband's estate. She may select either but not both. Division of Land-How Effected. In a division of land between three heirs who jointly own three-thirteenths interest therein the court should divide the three-thirteenths to each of them so that it may adjoin their other land, if it can be done without material detriment to the interest of the others. W. F. HAIL for appellants. CLAY & CARTER for appellees. OPINION OF THE COURT BY JUDGE NUNN--Reversing. Elijah Fieids, Narcissus Middleton and Robert Middleton brought this action against appellants for the purpose of having about 100 acres of land which belonged to Wm. Middleton in his lifetime, divided among them. One Turner patented the land and sold and conveyed to Walter Middleton, his son-in-law, for life, and at his death it was to go to his children, who were thirteen in number at the time of his death. Walter Middleton, however, sold the land to Wm. Middleton and made him an absolute conveyance. Wm. Middleton was a son of Walter, and he purchased and received conveyances from nine of his brothers and sisters and resided upon the land for many years. It appears that three of the interests which he never purchased, were purchased, one by his widow and the others by two of his children, after his death. The widow sold the interest she bought to one of the children. Wm. Middleton left twelve children, some of whom sold their interests. Some of the heirs attempt to defeat the interests of their uncles and aunts, which they had purchased as stated, by reason of their having been in the actual possession of the land for more than thirty years. The statute does not run in such cases, unless it be made to appear clearly that the possession of the joint owner, such as Wm. Middleton was, was adverse to the other joint owners and that they had notice or information of his claim of ownership of the whole. This does not appear in this case. The lower court decided in favor of these interests and directed that the land be divided among the parties in interest, giving the widow a homestead. It appears that three of the children now own, by separate purchase, the three interests of their uncles and aunts, children of Walter Middleton,and that the court did not take this into consideration in ordering the division, but directed the commissioner to take proof as to the amount they paid for each of the interests and directed the other parties in interest to refund to them the amount they paid therefor, when the owners of the interests were seeking to have their interests allotted to them adjoining their other interests in their father's estate, and some of the other heirs objected to this because they did not want to buy and pay for land they did not want. This was error of the court. We know of no law to compel an adult to sell his land, or to compel one to purchase against his will, except in cases where property cannot be divided without materially impairing its value. In one place in its judgment, the court allowed the widow a homestead and in another it speaks of it as dower. The petition asked that she be allotted dower. A widow cannot be allotted both homestead and dower in her husband's estate. She has a right to select either, and on a return of the case the court should have her select which she wants and adjudge it to her. The court should also allot the three one-thirteenths to the parties to whom they belong adjoining their other interests, if it can be done without material detriment to the interests of the others. For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith. 1. National Bank of the Republic v. Current, et al. (Decided February 17, 1911.) Appeal from Jefferson Circuit Court Statutes-Revision of Previous One-Construction-Presumption -Omitted Clause-Inference. In construing statutes not only the language used must be looked to, but where it is a revision of a previous one on the same subject it is proper to examine the old as well, to see what change, if any, has been made. It must Vol. 142-12 2. be presumed the legislature meant something in making the change. So where an entire clause relating to a particular one of a class of subjects has been omitted, it is a reasonable inference that it was not intended that the omitted clause should be embraced in the terms of the statute. Licensed Peddlers Notes-Endorsement-Meaning- Intendment --Assumption. In the Act of 1906 ("Revenue and Taxation") omitting the clause as to venders of patent rights, was intended to conform to the decision of the court, so as to require only licensed peddlers to have their notes endorsed "Peddlers Notes," as required by Sec 4223, Ky. St. So the phrase in sec. 4216, "anything not hereinafter specially exempt," means anything to sell for which a license is required by section 4215. This construction gives some meaning to the legislative action. The converse would be to hold that nothing was intended by it. That we ought not to assume. HENRY BURNETT and WILLIAM ENGLISH for appellant. HINES & NORMAN for appellee. OPINION OF THE COURT BY JUDGE O'REAR-Reversing. Current and Wood executed two promissory notes to the American Automatic Advertising Co. for $706.25 each, which before maturity were discounted to appellant for value. The notes were given for the price of certain rights to the exclusive use of patented articles in territory in Kentucky. Appellees the makers defended on the ground that the notes were given to itinerant persons, and for the rights named, and, as they were not indorsed "peddlers note," as required by section 4223, Ky. Stats., they were void. They also pleaded that the consideration for the notes had failed. Appellant demurred to the answer. The demurrer was overruled. Appellant elected to stand on its demurrer and the petition was accordingly dismissed. By section 4215, Ky. Stats., all persons who are by that article deemed peddlers are required to pay a license for plying their vocation. Section 4216, Ky. Stats., then reads: "All itinerant persons vending lightning rods, goods, wares, merchandise, clocks, watches, jewelry, gold, sil ver, or plated ware, spectacles, drugs, perfumery and any other thing not hereinafter specially exempt shall be deemed peddlers." By section 4218, Id., no person shall be deemed a peddler for selling tinware, agricultural implements, sewing machines, portable mills, books, pamphlets, papers, 12 1-2 meat, stoneware, or farm or garden products, nor merchants or their agents, for selling by sample. Section 4216, Ky. Stats., supra, is a re-enactment of section of same number in a previous edition if the Ky. Stats. It is contained in the chapter on revenue and taxation. Prior to 1906 that section was in the same language as present section 4216, except that following words "lightning rods" there was the clause "patent rights, or ter ritory for the sale, use or manufacture of patent rights." In 1906 the law of the State relating to revenue and taxation was revised, and an entirely new act substituted for the old chapter on that subject. Section 4216 was reenacted in the same language first above quoted, omitting the clause last quoted. In construing statutes, not only the language used must be looked to, but where the statute under consideration is a revision of a previous one on the subject, it is competent to examine the old as well to see what change, if any, the Legislature has made. Any material change between the two can not be passed over by the courts as insignificant. It must be presumed that the Legislature meant something by being at the pains to make the change, else it is most likely that they would have left the enactment alone as it was. So when an entire clause, relating to a particular one of a class of subjects has been omitted, it is a reasonable inference that the Legislature did not intend that the subject omitted should thereafter be embraced in the terms of the statute. Under section 4216, Ky. Stats., as it existed prior to 1906, this court had construed that a note given as consideration for the use of a patent right in this State, not endorsed as required by section 4223, Ky. Stats., was void. (Bohon's Assignee v. Brown, 101 Ky., 354; Bugg v. Holt, 29 Ky. Law Rep., 1208, 97 S. W., 29; Rumbley v. Hall, 107 Ky, 349, 21 Rep., 1071, 54 S. W., 4.) It had also been held that section 4215 requiring the taking out of a license by venders of patent rights was unconstitutional. (Hays v. Commonwealth, 107 Ky., 655; Commonwealth v. Petty, 96 Ky., 452.) The statute subdivision 3, of article 12, chapter 108, Ky. Stats. (Revenue and Taxation), defining the duties and liabilities of peddlers, had a two-fold object; one to produce revenue from itinerant merchants and venders of merchandise; the other, the protection of the public against imposition and fraud by such. It is not certain that the Legislature would have enacted the statute as to either of its aspects without the other. So when this court had decided that |