64 Ky.

Volume 64 — Kentucky Reports

129 opinions

64 Ky. 1Gentry v. Doolin (1866)
1. In an action for the services of a slave, although the time at which the services were rendered seems to be in 1864 instead of 1863, as charged by plaintiff, this discrepancy was not sufficient to have authorized the court to instruct the jury to find as in case of a non-suit. The evidence was sufficient to authorize the verdict of the jury in favor of plaintiff, 3, A paper referred to in an answer, and not with it, or .otherwise filed, so as to allow the adverse party an opportunity to inspect it before the trial, cannot be read as evidence on the trial without proof of its execution. (Section 588, Civil Code.) 3. Doolin recovered a judgment in the quarterly court for eighty dollars against Gentry. Gentry appealed to the circuit court, and reduced the judgment against him to sixty dollars. The circuit court erred in adjudging to Doolin liis costs against Gentry. As the result in the circuit court was more favorable to him, Gentry would, have been entitled to recover his costs against Doolin, according to the VUh section of chapter 25 of the Revised Statutes; but section 850 of the Givil Code modifies the above section of the Revised Statutes, and, as in this case, confers upon the circuit court the discretionary power to adjudge to, or withhold from, Gentry his own costs — not, in such a case, to authorize the court to give judgment in favor of Doolin for his costs against Gentry.
64 Ky. 4Agnew v. Williams (1866)
1. A slave claimed by the wife being attached by the creditors of her husband, the mother of the wife advanced $300, and D. advanced $260, and thereby released the slave from the attachment. The husband and wife then conveyed the slave to D., who, on the same day, conveyed him to the wife, reserving a lien for his advances. The husband thereafter died insolvent, and his creditors attempted to subject the slave to the payment of his debts, which was resisted by the widow, who asserted her ownership of the slave. The widow after-wards married, and her husband paid off the lien of D., and D. notified him that the wife’s mother looked to him for her advances, which he promised to pay, but afterwards refused. The mother sued both husband and wife, in an ordinary action, for the amount she had advanced. Held by the Court — 1. that it was error to give personal judgment against the wife. 2. A personal judgment against the husband was erroneous, there being no allegation or proof that he had received sufficient estate by the wife to pay the debt. (See. 3, art. 2, chap. 41, 2 Rev. Stat., 8.) 2. A promise made by the husband before marriage to pay a debt against his intended wife, for which the creditor had no lien on her estate, is without a legal consideration.
64 Ky. 9Burton v. White's Adm'r (1866)
Demtrrerj on the ground that the petition, in describing the note payable sis months after date, “failed to state specifically when it became due,” was properly overruled. The omission to allege when the note was payable was supplied by the note itself, as effectually as if it had been literally copied in the petition as a portion of its allegations.
64 Ky. 11Hensley v. Commonwealth (1866)
1. A conviction on an indictment for stealing Stephen Daniel’s hog, upon proof that the defendant stole Philip Daniel’s hog, held to be erroneous. The offense charged and that proved being essentially different, the indictment was not legal notice of the crime intended to be proved. The conviction for stealing Stephen’s hog would not bar another prosecution for stealing Philip's hog, even though the same hog and the same offense.
64 Ky. 12Egard v. Chearnly (1866)
CASE 5 — PETITION EQUITY APPEAL PROM HENDERSON CIRCUIT COURT. CITED— 3 Dana, 619; Forman Sf Dana vs. Hunt, SfC. 3 Metcalfe, 546; Taylor vs. Gilpin. 2 Metcalfe, 552; Vanbussum. vs. Maloney. 2 Ben. Mon., 411; Busly vs. Hardin. 14 Vesey, 151; White vs. Wilson. CITED— 3 Dana, 622; Forman, fyc., vs. Hunt, fyc. 2 B. Mon., 411; Busly vs. Hardin. 2 Met., 552. 3 Met., 546. MSS. Op. Ky., Oct., 1860; Martin vs. Powell's heirs. Rev. Stat., chap. 26.
64 Ky. 15McBride v. McBride (1866)
I. As a general rule, the father is entitled to the custody of his infant child; but the chancellor, having in view the welfare of the child, will bestow the custody on the mother, in preference to the father, when, from the relative habits or other circumstances, it shall appear most beneficial to the child to do so.
64 Ky. 17Withrow v. Commonwealth (1866)
1. The arrest and imprisonment in another State of one who is charged with crime, and on bail in this State, is not a good defense or a good plea in bar to an action on the forfeited recognizance against the bail. 2. The bail has the friendly custody of the prisoner, and if he permits him to go to another State where he is arrested and imprisoned, he does so at his peril, and for his failure to appear at his trial the bail will be held responsible on his bond.
64 Ky. 20Dean v. Commonwealth (1866)
1. A commitment of a defendant to jail, on a charge of a felony, is sufficient evidence to show the fact that bail was required, and that, in default thereof, the defendant was ordered to jail. 2. Money deposited with the committing officer in lieu of bail, in order to secure the release of a prisoner who had been committed by his order, and by him paid over to the trustee of the jury fund, after the release of the prisoner, will be forfeited by the failure of the defendant to appear and answer, as required by law.
64 Ky. 23Scott v. West (1866)
CASE 9 — PETITION ORDINARY APPEAL FROM NICHOLAS CIRCUIT COURT. CITED— Sec. 10, Criminal Code; lb., 366, 358. 1 Rev. Stat., 403, 415. Act of February 9, 1858. 3 Metcalfe, 314; Revill vs. Pettit.
64 Ky. 26Plummer v. Commonwealth (1866)
A suspension until the next term of the county court of the license of a tavern-keeper by the county judge, or by the county court, is ¡a nullity, unless the alleged offender had been summoned to appear before the county judge, at a time and place designated, to show cause why his license shall not be suspended as required in sections 8 and 9, article 1, chapter 99, 2 Stanton’s Revised Statutes.
64 Ky. 28Fritz v. Tudor (1866)
1. The parties having had a fnll opportunity to present all the essential facts, and having taken all needful testimony, the court of appeals will not notice unessential irregularities, if a just decision may be reached on the record as presented. 2. In the allotment of dower to a widow in land sold and conveyed by her husband, both principle and authority prescribe the value of the use at the time of the allotment, considering the land in the same condition as it was in when alienated, without amelioration or deterioration, resulting from the acts of the purchaser. She is entitled to the use of one third, ostimated according to quantity, quality, and value, when allotted to her, except so far as the purchaser had increased the value' by improvements. 3. A doweress of land, either altogether uncleared or not sufficiently cleared, has a right to clear or extend the clearing, so far as her full enjoyment of her estate as her home may require; and, to that extent, whatever it may he, she has the incidental right to remove the timber and appropriate it to the expense of her necessary improvements.
64 Ky. 32Adams Express Co. v. McDonald (1866)
CASE 12 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— Sections 482 to 489, inclusive, Angelí on Carriers. CITED— 12 B. Mon., 63; Reno, Sfc., vs. Hogan. Story on Bailments, 365. Angelí on Com. Carriers, ch. 7,p. 226; lb., 278. 8 M. and W. Rep., 461; Wyld vs. Bickford. 2 Ad. and El., N. S., 46; Hinton vs. Debbin. 19 Wend., 251; Cole vs. Goodwin. 1 Amer. Railway Cases, p. 176; Segar vs. Portsmouth S. E, Sf Railroad Company.
64 Ky. 34Jones v. Commonwealth (1866)
CASE 13 — INDICTMENT APPEAL FROM HARRISON CIRCUIT COURT.
64 Ky. 41Chandler v. Commonwealth (1866)
CASE 14 — INDICTMENT APPEAL PROM TRIMBLE CIRCUIT COURT. CITED— ' Section 670, Criminal Code. CITED— 17 Ben. Mon.; Adioell vs. Commomoealth. 12 Howard, 361; U. S. vs. Reed, <^c. Wharton's Amer. Crim. Law., 367. 1 Phil. Ev., 74. 10 Johns., 95. 19 Wendell, 377. 2 Virg. Case, 314. 2 Const. S. C., 171. Addis, 232. 2 Iredell, 402. 10 Pick., 57.
64 Ky. 44Taylor v. Ford (1866)
CASE 15 — PETITION EQUITY APPEAL PROM ADAIR CIRCUIT COURT. CITED— 7 J. J. Marshall, 289; Lyon vs. Alexander. 6 B. Mon., 540 ; Anderson's adm'r vs. Wells, S¡-c. Sec. 26, chap. 80, 2 Stanton's Revised Statutes, 230. 18 B. Mon., 836; McBrayer vs. Collins. CITED— 6 B. Mon., 541; Anderson's adm'r vs. Wells, fyc. 7 J. J. M., 289; Lyon vs. Alexander. 18 B. Mon., 652; Chapman, fyc., vs. Stockwell.
64 Ky. 48Garvin & Co. v. Mobley (1866)
CASE 16 — PETITION EQUITY APPEAL PROM HICKMAN CIRCUIT COURT. CITED— 1 Duvall, 280 ; Hubble vs. Murphy. 1 Root, 87; Babcock vs. Steelman. 5 Cranch, 351; Moss vs. Riddle. 2 Metcalfe, 608; Millett vs. Parker. 9 B. Monroe, 561; Fitzhugh's heirs vs. Tyler. 2 Starkie on Ev., 17. CITED— 4 Metcalfe, 78; Bivins vs. Helsley. 6 B. Mon., 141; McGrath vs. Balsen.
64 Ky. 54Churchill v. Terrell (1866)
A vendor supposing himself the owner of an entire tract of land, conveyed one moiety of his interest therein to C., who afterwards conveyed one half of his interest (supposing his interest to be a full half) to R., who conveyed his interest to T. . It turned out that the original vendor only owned eight twelfths of the tract, and that his deed to C. only passed four twelfths of the whole tract. After the sale and conveyance to R., and before the mistake was discovered, C. sold and conveyed to A. L. C. his remainining one half of his original purchase. A. L. C. sold and conveyed his interest to T. and Catlett in equal parts, and T. also acquired one twelfth of the whole tract from one of the owners of the residue, and C. afterwards acquired another one twelfth of the residue. All the conveyances were by general warranty deeds. On suit for partition among the owners — Held by the court — That the one twelfth which C. acquired after his sales and conveyances to R. and A. L. C., passed, under the combined doctrine of privity and estoppel, to T. and Catlett.
64 Ky. 59Commonwealth v. Branch (1866)
One charged with a felony and admitted to bail, by an examining court, gave bond to appear at the next ensuing May term of the circuit court. No court was held in May, hut an indictment was found at the succeeding October term, and the defendant not appearing, a bench warrant was issued on which he was arrested; but he made his escape from the sheriff. Held — That these facts did not release the surety in the bail bond, although no order of forfeiture was made until after the arrest and escape.
64 Ky. 62Estill v. Rogers (1866)
CASE 19 — MOTION APPEAL PROM MADISON CIRCUIT COURT. CITED— 3 A. K. Marshall, 368; Dumarsly vs. Fishly. 5 Dana, 530 ; Bryant vs. Sheely. Section 2, art. 1, chap. —, title Husband and Wife, Rev. Stat. Act Feby., 1866, Myers’ Sup., 734. CITED— 3 Monroe, 143; Hawkins vs. Robinson. 7 B. Mon., 132; Euhl vs. Knauer. 2 Salkeld, 119; Myers, 735. Act Feby. 14, 1866. CITED— 5 Litt,, 330; Free Frank and Lucy vs. Denham's adm’r. 3 Dana, 232; Stover vs. Boswell’s heir, SfC. 3 Marshall, 70 ; Fly vs. Thompson. 8 B. Mon., 113; Donnelly vs. Donnelly’s heirs. 4 Johnson’s Rep., 52 ; Fenton vs. Reed. 3 Marshall, 369 ; Dumarsly vs. Fislily. 17 B. Mon., 209; Stevenson vs. Gray. Rev. Stat., chap. 37, art. 2, sec. 3. 4 B. Monroe, 357; Cotton vs. Taylor.
64 Ky. 66Farmer v. Lewis (1866)
The right of a military commander to seize and destroy or appropriate private property never exists, except as the consequence of actual emergency. To justify or excuse the exercise of this extraordinary power on the ground of necessity for subsistence or otherwise, the necessity must be urgent for the public service, and such as will not admit of delay, and when the civil authority would be too late in providing the means required by the occasion; and, if the power is claimed as a necessity to prevent the property from falling into the hands of the public enemy, the danger must be immediate and impending. (Mitchell vs. Harmony, 13 Howard, 135.)
64 Ky. 70Miller v. Rice (1866)
Rice contracted to pay the president, directors, and company of the Dan-ville, Dis River, and Lancaster turnpike road company for two shares of stock in said company. Miller, &c., sued on this contract in their own individual names. Plaintiffs must allege that the party with whom Rice contracted had .transferred the benefit of the contract to plan tiffs.
64 Ky. 72Vinsant v. Auditor (1866)
It is the official duty of a jailer to keep prisoners safely, without a guard. If the jailer be directed, by order of court, to summon a guard to assist him, it is Ms official duty to superintend the guard so summoned. He cannot summon himself, or be legally appointed by the court, to act as guard, and he is entitled to no compensation for such services.
64 Ky. 74Epling v. Epling (1866)
A husband, seeking to obtain a decree for a divorce from his wife, on the ground of abandonment or separation by the wife from the husband for one year, must allege in his petition, and. prove, that the wife had abandoned or separated from him without his fault.
64 Ky. 76Plummer v. Commonwealth (1866)
CASE 24 — INDICTMENT APPEAL FROM PENDLETON CIRCUIT COURT. CITED— Section 334, Criminal Code. 15 B. Monroe, 554. 17 B. Mon., 409. Amor. Grim. Law, 332-3.
64 Ky. 80Lyne v. Cleveland's adm'r (1866)
CASE 25 — PETITION EQUITY APPEAL FROM WOODFORD CIRCUIT COURT. CITED— 2 Hawks, 613; Turner vs. Whitled, cited in U. S. Equity Digest, 377, sec. 640. 2 Williams on Executors, 881-882. 5 Ves., 522 ; Montgomerie vs. Woodley. Ambler, 448; Shepherd vs. Ingram. 2 P. Wms., 419; Nichols vs. Osborn. 1 Brown's Ghy. Rep., 81; Chaworth vs. Hooper. 1 P. Wms., 504; Taylor vs. Johnson.
64 Ky. 83Thomas v. Newcom (1866)
CASE 26 — APPRENTICING APPEAL PROM MARION CIRCUIT COURT. CITED— Act of Feb. 16, 1866, Myers’ Sup., 729. Art. 1, chap. 64, Rev. Stat., sections 1 to 5. 2 Marshall, 497; Roberts vs. Desferges. 2 Marshall, 585; Payne vs. Long, fyc, 6 J. J. M., 592 ; Mendall vs. Ricketts. 6 B. Mon., 281; Rachel, fyc., vs. Emerson. 15 B. Mon., 504; Bakers vs. Winfrey, <§-c.
64 Ky. 86Foster v. Grigsby (1866)
1. A conveyance in fee, of all the real and personal estate of the grantor, by deed dated May 2,1855, in consideration of the grantee’s assumpsit to pay certain specified debts and liabilities of the grantor, held to be fraudulent and void, on the grounds of inadequacy of price, non-delivery of possession, and other badges of fraud. 2. N. T. Grigsby, a failing debtor, on the 2d day of May, 1855, conveyed to his brother John, in fee simple, the whole of his estate, including the unexpired term of two hired slaves, reserving only the property exempted by law from sale under execution, upon the consideration that John Grigsby had assumed to pay certain specified debts, upon apart of which John was security; also, including a small debt due to himself, and a debt due to the estate of Lewis Grigsby, deceased, the father of said John and Nat., the former being the administrator, amounting in the aggregate to nine thousand five hundred dollars. The property was afterwards sold by the commissioner of the court, and brought fourteen thousand four hundred and forty-seven dollars. The deed was recorded on the day of its date, and contained the following clause: “It is understood that the party of the first part has the right to retain the possession of the above named property until the first day of January next. ’’ JSeld hy the court — That, at the date of the deed (2d day of May, 1855), a failing debtor had the right, by a sale of his property or other disposition of it, to prefer one or more creditors over his other creditors, provided it was done in good faith. That, although the debtor might intend, by the sale of his property, not only to prefer one creditor over another, but to hinder and delay other creditors, yet, if the preferred creditor, in good faith, purchased the property at a full and fair consideration, for the purpose of saving his own debt, or protecting himself only, the sale would not be invalid as against other creditors on account of the fraudulent intent of the vendor, notwithstanding the fraudulent intent of the vendee at the time. But when the fraudulent purpose of the vendor was Icnown to the vendee, or when he had good grounds even to suspect such fraudulent purpose, the strictest regard for fairness on his part will he required, and the transaction will receive close scrutiny. He must not concur in, or give the slightest aid to, the fraudulent purpose of the vendor. And any provision therefor inserted in the deed, having the effect of hindering or delaying other creditors, not necessary to save his own debt, renders the sale to him fraudulent as against the unpreferred creditors, although the debtor required the provision to be inserted as the only condition upon which he would consent to secure the debt of the vendee. 3. An absolute sale of personal property, without the possession accompanying and following the title, is, in the judgment of law, fraudulent per se as against creditors and purchasers, and without deciding whether the recording of the deed containing the reservation of the right of possession of the property until the first of January, 1856, had the effect of relieving the sale of the personal property mentioned in the deed from the imputation of fraud per se by the force of the fourth section of the statute against fraudulent conveyances and devises, chapter 40, Revised Statutes, the court say that the reservation of the right to retain the possession of the property, being inconsistent with the title, was at least a badge of fraud, and, when taken in connection with other facts and circumstances in the case (which the court enumerates), authorizes the conclusion that the deed was made to hinder and delay the other creditors of N. T. Grigsby, and was therefore fraudulent as to them.
64 Ky. 102Dillingham v. Mudd (1866)
1. The exoneration of the principal to a note, on a plea of non est factum, would not, per se, exonerate his surety against whom judgment was authorized by the sheriff’s return. 2. A cause once properly adjudged should never be opened at the instance of one of the defendants on the ground of imputed omission of defendant’s own counsel and fraud of his co-defendant.
64 Ky. 103Horsfall v. Commonwealth ex rel. Hamilton (1866)
The city jail of Newport being appropriated to municipal uses, and under the care and supervision of a special keeper, independent of the county jailer, if a prisoner is committed, as he may be, to the city jail, the county jailer will neither have control over such prisoner nor be responsible for his safe-keeping.
64 Ky. 104Meadows v. Campbell (1866)
Motion for a new trial on grounds filed — being overruled by the court— excepted to by the defendant, and time given him until the first day of the next term to file his bill of exceptions. The bill of exceptions must be filed on the first day of the next succeeding term, or further time given on that day. If that day be passed without any notice being taken of the subject, it will be too late to file them at any subsequent day. If, on a subsequent day of the term, the court shall extend the time and permit the filing, the exceptions will be / disregarded by the court of appeals.
64 Ky. 107Webb v. Wright (1866)
CASE 31 — PETITION EQUITY APPEAL FROM MADISON CIRCUIT COURT. CITED— Civil Code, sec. 93. Rev. Stat., 230, chap. 80, sec. 26. 18 B. Mon., 650; Chapman vs. Stockioell. CITED— 14 B. Mon., 489; Devine vs. Mitchell. 1 J. J. Mar., 500; Boyce vs. Watson, 9 Dana, 412; Savage vs. Carter. 17 B. M., 211; Black vs. Bush. 12 B. M., 357; Peyton vs. Lewis. 8 Dana, 298; Connell vs. Sandridge's adm'i. 6 B. M., 130; Pearson vs. Kelly. Hardings Rep., 535; Reading vs. Metcalfe.
64 Ky. 108Shay v. Richmond & Lancaster Turnpike Road Co. (1866)
To authorize a peremptory instruction to the jury to find as in ease of a non-suit, it should appear that, admitting the testimony to be true, and every inferenco that is fairly deducible from it, the plaintiff has still failed to support his claim.
64 Ky. 110Anthony, A. C., & Co. v. Wade (1866)
1. Although an absolute sale of personal property, which remains in the possession of the vendor, is constructively fraudulent as to his creditors, yet, if the property was exempt from levy and sale under execution, the vendee may recover the value of the property, against a creditor of his vendor, who has it levied upon and sold. 2. An avowed intention of a debtor to leave the State, and a packing up for that purpose, will not deprive him of the character of a housekeeper if he had it before, and he will be entitled to the property exempted from execution in favor of bona fide housekeepers with a family; and this protection continues while he is in transitu.
64 Ky. 113Kirby v. Commonwealth (1866)
CASE 34 — FORFEITED RECOGNIZANCE APPEAL PROM BOURBON CIRCUIT COURT. CITED— 3 B. Monroe, 349; Alguire vs. Commonwealth. Section 90, Criminal Code. 3 Marring., 333 ; Canby vs. Griffin. 5 Met. (not Ky.), 380; Way vs. Wright. 2 Humph., 258; State vs. Allen. CITED— 3 Ben. Mon., 350. 44 Barbour, 118. 3 Hill, 570; The People vs. Bartlett. 8 Cowan, 297. Coke on Littleton, 206a. CITED— 3 B. Mon., 349; Alguire vs. Commonwealth. 3 Harrington, 333; Gantry vs. Griffin. 5 Met., 380 ; Way vs. Wright.
64 Ky. 116Turley's Executors v. Johnson (1866)
CASE 35 — PETITION EQUITY APPEAL PROM 0ALLATIE CIRCUI® OO0RT, CITED— Rev. Stat.f 693, chap. 106, sec 2. 18 B. M., 64 ; Overton vs. Overton. 5 Johnson’s R., 158 ; Jackson vs. Vandusen, 1 Peters’ Circuit C. R., 163. Washington Circuit C. R., 582. 110 New Hampshire R., 515, 2 J. J. M., 331; McDaniel’s Will Piatt’s Will; MSS. Opinion. 7 Dana, 92 ; Allison vs. Allison. 2 B. M., 74; Watson vs. Watson. 2 B. M., 79 ; Reed’s Will. 4 Met., 164 ; Sechrest’s Will. 5 John. Ch. R., 184; Van Alst. vs. Hunter. 1 Brad. Surro. R., 458; Bleeker vs. Lynch. 2 J. J. Mar., 340 ; Elliott’s Will. Ray’s Med. Jour., secs. 342, 343, 344. 6 Georgia, 353; Potts vs. House. 4 McChord’s R., 183; Mason Lee’s Will. 1 Williams on Executors, 42, 43. Strobhart Co. Ca. R., 53; Floyd, vs. Floyd. 6 Georgia R., 324; Fotts and others vs. House's Ex. CITED— 1 Cop., 355; Eyre C. B., 40; Mountain vs. Bennett. 5 J. J. Mar., 91, 92; Shropshire vs. Reno. 33 Barbour, 49; Luke vs. Raney. 1 Jarman on Wills, 52. 1 B. M., 353; Harrison’s Will. 1 Duvall, 203-205; Harrell vs. Harrell.
64 Ky. 125Curtis v. Commonwealth (1866)
The presiding judge of a county court has no jurisdiction to try and impose a fine of one hundred dollars upon a defendant on a charge of peddling without license.
64 Ky. 129Trabue v. Sayre (1866)
1. Certain actions shall be commenced within Sve years after the cause of action accrued. (Nee. 2, art. 3, chap. 63, 2 Stant. Rev. Stat., 127.) Such actions are deemed to have been commenced at the date of'the first summons or process issued in good faith from the court or tribunal having jurisdiction of the cause of action. (Sec. 1, art. 4, chap. ■ 63, 2 Stant. Rev. Stat., 132.)' 2. The notarial protest, under the notarial seal, of non-payment of a bill, is made evidence of its dishonor. (Sec. 12, chap. 22, 1 Stant. Rev. Stat., 274.) And proof of the habits and custom of the notary, banfc officers, and clerks, is competent evidence to show that legal notice of the protest was given to the drawer of the bill.
64 Ky. 133Commonwealth v. Davidson (1866)
W. being indicted and admitted to bail, failed to appear; his recognizance was forfeited, and summons issued thereon, and served; at the next term of the court a motion to quash the summons and a demurrer were overruled, and pending a motion for a judgment on the forfeiture, W. came into court and surrendered himself, and moved the court to remit the recognizance, which was done. Meld — I. While section 94, Criminal Code, does not confer on the court an arbitrary and unlimited discretion, it vests the court with a broad legal discretion, not to be restrained by this court, unless flagrantly and manifestly abused, and that the remission was right. 2. That although the accused is not a competent witness to prove facts excusing his noncompliance with his bail bond, his oral statement, under oath, might be heard in lieu of a written affidavit, as a foundation on which to hear the application to remit.
64 Ky. 135Miller v. Rucker (1866)
1. Judges appointed, for the purpose of holding elections and determining the rights of the elector to exercise the elective franchise, are, to all intents, for such purposes, judicial, fully vested with the power, and under a solemn duty, to adjudicate whether the vote proposed be legal or illegal, and if illegal, to reject it. If the judgment of these officers, in either receiving or rejecting a vote, be pure and honest, however erroneous, they are neither liable to the Commonwealth nor the party refused. 2. In an action against judges of election for refusing the vote of plaintiff, the defendants, in their answer, denied that plaintiff was, at the time, a citizen, or legally entitled to vote. On this issue the plaintiff had a right to show with what intention, and for what purpose, he left the State, and his statements made at the time of departure were competent to go to the jury for their consideration.
64 Ky. 139Ashbrook v. Commonwealth (1866)
CASE 40 — INDICTMENT—NUISANCE APPEAL FROM KENTON CIRCUIT COURT. CITED— Roscoe’s Criminal Ev., s. p., 792. 1 Russell on Crimes, p. 320. 7 Blackford, 534; Ellis vs. State. 1 Duvall, 256; Ray vs. Sellers. Section 226, Criminal Code; lb., sections 334, 335. CITED— 1 Bishop, sections 54.0-2 and 1032. 8 Inch, 494, 495; Hackney vs. State.
64 Ky. 145Gibson v. Belcher (1866)
CASE 41 — PETITION ORDINARY APPEAL PROM BALLARD CIRCUIT COURT. CITED— 2 Rev. Stat., 123. 3 Metcalfe, 258; Hedges vs. Rennaker. 4 Metcalfe, 73; Chiles, <fc., vs. Monroe. Act of February 4, 1858. 2 art., chap. 63, Rev. Stat. Act of May 31, 1865, Myers' Sup., 295. 9 B. Monroe, 300; Wickliffe vs. Enser. 5 B. Mon., 564; Lewis vs. Hardin. 3 Peters, 290; Jackson vs. Lampshire. 4 Metcalfe, Berry Johnson vs. Ransdall. Smith's Com. on Con. and Stat. Construction, 388, 4 Wheaton, 207; Sturgis vs. Crowningshield. 2 Greenleaf, 294; Proprietors Sf Co. vs. Laborn, fyc. 8 Mass., 430; Carl vs. Hagger et al. 7 B. Mon., 168; Pearce's heirs vs. Patton, Spc. CITED— Act of February 4, 1858, amending ch. 63, R. S. 3 Met., 90; Fenwick vs. Phillips. CITED— 3 Littell, 20; Smith's heirs vs. Rockbridge. 4 Metcalfe, 75; Chiles Sf Thomas vs. Moore.
64 Ky. 149Cornellison v. Cornellison (1866)
X. Parol contracts' respecting lands are not void, but are, on the contrary, in many cases efficacious as a shield to those claiming and in possession of land under such contracts; and, although not enforceable as a right of action in the purchaser, such parol contract may be an available defense in bar<of an action to recover the land. 2. A tenant in possession for years, who has not sought to shelter himself under an adversary title, must be notified of the termination of the tenancy before an action is commenced against him for the recovery of the possession of the land. But if such an action is dismissed for want of notice, in a subsequent action for the same purpose the court will regard the prosecution of the former action as dispensing with notice to terminate the tenancy of the defendant. Note by Reporter. — This action was commenced in the circuit court February 18th, 1864, and decided by the court of appeals January 7th, 1867.
64 Ky. 154Watts v. Pettit's heirs (1866)
CASE 43 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT, CITED— 5 /. J. M., 618; Wilborne vs. Commonwealth. 1 Dana, 514; Johnson vs. Fuquay. Act of 1797; 1 Statute Law, 770. Sec. 15, art. 1, chap. 43, Revised Statutes. Sec. 3, chap. 97, Revised Statutes. Act of March, 1856. Sec. 10, art. 2, chap. 43, Revised Statutes. Sec. 25, art. 1, chap. 37, Revised Statutes. CITED— 1 Revised Statutes, pp. 581-2. CITED— 5 /. J. M., 618. 1 Dana, 514. 1 Morehead <f Brown's Digest, 664. CITED— 5 J. J. M., 618; Wilborne vs. Commonwealth. 1 Dana, 514; Johnson vs. Fuquay. ■ Act of 1856; Revised Statutes, 581-2.
64 Ky. 161Doughty v. Moss (1866)
1. An error in not directing the commissioner to sell only as much of the land as would satisfy the judgment, is a defect in the decree which will not be available when the entire tract of land did not sell for as much as the debt; nor will a slight error in the amount of interest in such a case be. available to set aside a sale. 2. The commissioner’s report of sale at the court-house, on a county court day, after sufficient notice, cures the alleged defect in the judgment in not prescribing the time and place of sale, even if such omission could be deemed error.
64 Ky. 162Woodward v. Fels (1866)
CASE 45 — PETITION ORDINARY APPEAL FROM m’CRACKEN CIRCUIT COURT.
64 Ky. 164McKenzie v. Pendleton's adm'x (1867)
CASE 46 — PETITION ORDINARY appeal from henry circuit court. CITED— 1 Marshall, 19; Benton vs. Homes’ ex’r.
64 Ky. 166Offutt v. Bank of Kentucky (1866)
CASE 47 — PETITION ORDINARY APPEAL FROM WOODFORD CIRCUIT COURT. CITED— 10 Wheaton, 333; U. S. Bk. vs. Bk. of Georgia. Story on Bills, secs. 450 and 451. 4 Dallas. 1 Brun., 27. CITED— Story on Promissory Notes, sec. 297.
64 Ky. 173Wilson v. Jones (1866)
A lease of real estate with a reserved right “to re-enter and annul the, lease for non-payment of any month’s rent within ten days after it became due,” by the consent of the landlord, was let to a sub-tenant. Failing to pay the rent for thirteen days, the landlord induced the sub-tenant to attorn to him. The prior tenants paid the rent due, and brought an action to be relieved from the forfeiture. Held — The landlord’s entry and retention of possession were legal rights; but equity .considers such general stipulations for entry by the landlord as intended for securing the r.ent, and not for forfeiting the lease, if the tenent shall have acted in good faith, and shall promptly pay the rent when demanded, or before the landlord suffered loss or inconvenience from the delinquency. The decision of the chancellor remitting the forfeiture was affirmed.
64 Ky. 176Tompert v. Lithgow (1866)
1. The board of aldermen ‘of the city of Louisville, acting as a court to try charges preferred against a city officer, is a court of limited jurisdiction, and every thing essential to make it such a court must appear affirmatively. 2. The clerk of the board of aldermen of the city of Louisville is not authorized to administer oaths. 3. A notary public is not-authorized to administer official oaths to the board of aldermen, sitting as a court of impeachment. 4. The board of aldermen of the city of Louisville, as organized, not being legally sworn, was not a legal court authorized to try Mayor Tompert; and the message, charges, and specifications preferred, made out no charge of official delinquency, and their proceedings, by which he was ousted, were illegal and void. There was, therefore, no vacancy in the office of mayor for the general council to fill, and Lithgow, the appointee of the council, became a usurper in legal contemplation.
64 Ky. 189Gould v. Bonds (1866)
CASE 50 — PETITION ORDINARY APPEAL PROM M'CRAOKEIÍ CIRCUIT COURT. CITED— Secs. 145, 155, Civil Code; lb. 409. 14 B. Mon., 86; Hill vs. Barrett. 14 B. Mon., 254; Collins vs. Blackburn.
64 Ky. 192Huggins v. Toler (1866)
CASE 51 — PETITION ORDINARY APPEAL EKOJC LYON CIRCUIT COURT. CITED— See. 153, Civil Code. CITED— 1 Rev. Stcit., chap. IQ, page 223.
64 Ky. 196Robinson v. Mobley (1866)
CASE 52 — PETITION ORDINARY APPEAL prom henry circuit court. CITED— Secs. 577, 578, Civil Code.
64 Ky. 198Worstell v. Ward (1866)
CASE 53 — ATTACHMENT FOR RENT APPEAL FROM WOODFORD CIRCUIT COURT. CITED— 56 chapter Revised Statutes, art. 11, sec. 30. 2 Blackstone, 40. 7 J. J. M., 140; Nelson’s heirs vs. Clay’s heirs. 2 Cruise’s Digest, p. 473. 9 Dana, 194; Clark vs. Fox. 3 Hawks, 232; Chambers vs. Chambers. 1 Marshall, 334. 2 J. J. Mar., 52. 2 Bibb, 33.
64 Ky. 200Anderson v. Rogers (1866)
The plaintiffs alleged in the petition that the note sued on was executed and delivered to the plaintiffs, which was admitted by a failure to deny it in the answer. The court will not assume, on the face of the record, that the judgment was erroneous, because there was a variance between the name of one of the plaintiffs and that of the note. If this was an available defense, it ought to have been made in the answer.
64 Ky. 201Cox v. Kash (1866)
1. If two of the officers who constitute the board to compare the polls at any election have been candidates at the same election, their places on the board are to be filled by the tuto justices residing nearest the court-house. If only one of said officers has been a candidate at that election, the other two constitute the board as to him; but it is his duty to act as to all other officers except himself. But in no case can one justice lawfully sit and act on said board. 2. If a single justice sits and acts as one of the board to compare polls, the determination, certificate of election given by such board, and the commission issued thereon by the Governor, are all illegal. 3. In comparing the polls for county judge, it is the duty of the county clerk to act as one of the board, although he may have been a candidate for clerk at the same election; and if he refuse or decline to act on said board, a mandamus may be sued out to compel him and the county judge and sheriff to proceed in the comparison of the polls, and to award the certificate of election to the one who obtained a majority of the legal votes.
64 Ky. 203Trustees of Flemingsburg v. Wilson (1866)
CASE 56 — INJUNCTION APPEAL PROM PLEMIKG CIRCUIT COURT. CITED— 1 Marshall, 7 ; Buckner, ¿¡-c., vs. Trustees of Augusta. *3 B. Mon., 440; Trustees of Augusta vs. Perkins. Sec. 12, title 1, Civil Code. Sec. 117, Civil Code. 15 B. Mon., 172; Trustees of Lebanon vs. Forcet. CITED— 12 B. Mon., 616-18; Dudley vs. Trustees of Frankfort.
64 Ky. 205Huston v. Duncan (1866)
1. A levy on movable property puts the thing levied on in the possession of the officer, either actually or constructively, and, consequently, invests him with a special property. 2. A levy on land gives the officer no possession, and, consequently, no title. 3. The death of the owner of land levied on before a sale of the land by the officer passes the whole title to his heirs, and without a revivor against them there is no title subject to sale by the levying officer, who could not pass any title to the purchaser. Such a sale, therefore, must be void.
64 Ky. 208Morris v. Hazelwood (1866)
CASE 58 — PETITION ORDINARY APPEAL PROM OREEN CIRCUIT COURT. CITED— 3 Conn., 250, page 611. 1 Bouvier’s Diet., 581. 4 Wash. C. C. R., 729. 14 Sergeant Sf Rawle, 275. 21 How. St. Tr., 535. 6 East., 193. 1 Phil, on Ev., 31, 229-30. 1 Greenleaf on Ev., secs. 54-55, 124, 334-335. Barker vs. Dixie, cas. temp., Hardw., 264. 1 Yesey, 10. 5 City Hall Record, 141, 153, 154. 1 Wheeler’s Crim. Cases, 479. Willis, 577. 6 T. R., 680. 3 Yes. 4" Beam, 165. Bull, N. P., 28. Caines, 120; Ruan vs. Perry. 7 Parsons on Con., 586, note. 2 Bosanquit 4’ Pullen’s Rep., 530, note. 16 Wend., 653 ; Gough, fyc., vs. St. John. 6 Cowen, 673 ; Fowler vs. JEtna Fire Insurance Co. 7 Conn., 116; Humphrey vs. Humphrey. Swifts Ev., 140. 2 Starkie's Ev., 366. Kirby, 62; Woodruff vs. Whittlesey. 2 Barb. Sup. Court Rep., Houghtaling vs. Kelderhouse 1 Comstock, 630, 4 Comstock, 493 ; Pratt vs. Andrews. 5 Ala. Rep., 383; Ward vs. Porter. 10 Serg. Sf Rawle, 55 ; Anderson vs. Long, fyc. 7 Ind. Rep., 19 ; Church vs. Drummond. 1 Strobhart, 377 ; Sneet vs. Plunket. 5 Sergt. Sj- Rawle, 354; Nash vs. Gilkeson. 24 Penn. Rep., 401; Lickey vs. Bloser. 6 Greenleaf, 9; Potter vs. Webb. 30 Maine Rep., 475; Thayer vs. Boyle. 23 Missouri R., 172; Gutxmiller vs. Lochman. 2 Blackford, 155. 3 Penn. R., 49. 1 Camp., 460. 1 Camp., 518. 9 Barr., 137. 1 Starkie ,303. 2 Saunders' PI., 785. 1 Selwyn's N. P., 35, note a. 2 Philips' Ev., 456 to 458; Cowan <§• Hill's Notes. 3 Bibb, 192; Givens <$f Bradley. 2 Barbour's Rep., 150-1. CITED— 3Caines, 121; Rúan vs. Perry. Anthon's Law Student, 177. 6 Cowan, 673; Fowler vs. JEtna Ins^Co. 3 Paige, 454; Townsend v. Graves. Green, 59. Low vs. Jolxffe, 1 he. rep., 395, doc. 4, dem. Stephenson vs. Walker, 4 esp., 50. Anthon, N. P., 21. n. a. Bishop on Marriage and Divorce, sec. 451. Greenleaf, 65. Lord Chancellor Erskine in Mclllville’s case, 29. Hon. Lt. Trials, 764. 3 Littell, 292.
64 Ky. 211Fisher v. Commonwealth (1866)
CASE 59 — INDICTMENT APPEAL FROM KENTON CIRCUIT COURT. CITED— Sec. 177, Crim. Code. 1 Bishop's Criminal Law, secs. 530-, 531, 532, 536, 551, 683, 686. 4 Dana, 518; Hinkle vs. Commonwealth. 2 McMullan, 382 ■ State vs. Thurston. 10 Humph., 101; State vs. Williams. 7 Miss., 55; Lorton vs. State. 2 Cor. Sf R., 765; Reg. vs. Bleasdale. 29 Maine, 329; State vs. Nelson. 4 Cor. Sf R., 386; Rex vs. Birdseye. 2 Met., 413 ; Plumbly vs. Commonwealth. 12 Ala., 840 ; State vs. Johnson. 14 Ga., 8 ; Roberts vs. State. Bishop's Criminal Law, sec. 691. • 2 B. fy. H. Leading Crim. Cases, p. 556. 2 Russell on Crimes, s. p. 127. 17 Wend., 385; People vs. McGowan. Archibald's Plead, and Practice, 363, 362, 366. CITED— 1 Bishop’s Criminal Law, 893.
64 Ky. 217Pusey v. Meade County Court (1866)
The county judge of Meade county had no authority to bind the county to pay for the general treatment of small-pox in Brandenburg.
64 Ky. 220Griswold v. Peckenpaugh (1866)
1. Circuit courts have no jurisdiction in an action to recover on a note for fifty dollars, and it was erroneous to give judgment instead of dismissing the petition. 2. A service in Indiana, as provided in section 86, Civil Code, of a copy of the petition, summons, &c., in a case in which the court has jurisdiction, authorizes a personal judgment, as provided in section 87, Civil Code. 3. A judgment by default against a garnishee who is not a party to the action is erroneous.
64 Ky. 221Laha v. Daly's Adm'r (1866)
vA clerk of a court is authorized to administer oaths and certify the affidavits of claimants to demands against decedents’ estates. (1 Slant. Rev, Stat., chap. 37, sec. 35; Civil Code, sec. 611.J
64 Ky. 223Watters v. Patrick (1866)
CASE 63 — APPEAL—MOTION APPEAL FROM MAGOFFIN CIRCUIT COURT. CITED— 2 Duvall, 76; Adams vs. Settles. CITED— Sec. 847, Stanton’s Civil Code.
64 Ky. 225Leisman v. Otto (1866)
CASE 64 — PETITION ORDINARY APPEAL PROM THE JEFFERSON COURT OF COMMON PLEAS. CITED— 22 Maine R., 395 ; Blake vs. Paulin. 36 Maine R., 113 ; Moses vs. Martin. (1 Heath.) 3 Monroe, 45; Armstrong vs. Fora. 1 Rich. S. C., 223 ; Kinlock vs. Brown. 6 Rand., 516, 518 ; Cutter vs. Hinton. Brown on Statute of Frauds, 198. 1 Greenleaf, note to sec. 118. Statutes at Large, vol. 3, p. 799. CITED— Section 118, Civil Code. Section 4, 1 Stant. Rev. Stat.,p. 264. 13 B. Mon., 357; Jones vs. Walker. 15 B. Mon., 445-6; Smith vs. Tab. MSS. Op., June, 1858; Taylor vs. Taylor. 3 Monroe, 45; Armstrong vs. Flora. 1 Rich. S. C. Rep., 223; Kinlock vs. Brown. Brown on Statute of Frauds, 198. 1 Duvall, 73 ; North vs. Robinson. 1 Greenleaf, sec. 118. Roberts on Frauds, pp. 210, 211, 212, 222, <SfC. CITED— • 3 Burrows, 1866; Williams vs. Leper. 7 Johnson, 463 ; Stingerland vs. Morse. 3 Strdbhart, S. C., 177; Tindal vs. Touchberry. 2 Bibb., 63 ; Porter vs. Langhorn. 7 Harris Johnson, 391 ; Elder vs. Warfield. 12 B. Mon., 506; Brannin Smith vs. Foree's adm’r. 1 Rawle, 152; Mechanics'1 Bank vs. Borasp. 1 Greenleaf s Ev., p. 469, and cases quoted.
64 Ky. 229Miller v. Hall (1866)
CASE 65 — PETITION EQUITY APPEAL FROM HICKMAN CIRCUIT COURT. CITED— 1 Duvall, 202; Commonwealth vs. Roberts. 4 Dana, 98-9; Cleary, SfC., vs. Marshall’s heirs. 10 B. Mon., 449-50. 3 Metcalfe, 455; Earle, SfC., vs. Couch. 9 B. Mon., 228; Debell vs. Foxworthy. CITED— 2 Duvall, 426; Jackson vs. Speed.
64 Ky. 239Hunter v. Cobb (1866)
CASE 66 — PETITION ORDINARY APPEAL PROM LYON CIRCUIT COURT. CITED— 1 Espinasse's Nisi Prius, part 1, s. p. 43-45. ■ Chitty on Bills, 2d London ed., s. p. 188, 194, 195, 200 to 208. Story on Bills, secs. 243 — 246. Kid on Bills, pages 68-80. 3 Kent's Commentaries, p. 85. Thompson on Bills, p. 369. Chitty on Bills, p. 324, and note. Sec. 8, art. —, Constitution of U. S.
64 Ky. 242Coburn v. Currens (1866)
CASE 67 — PETITION EQUITY APPEAL FROM MASON CIRCUIT COURT.
64 Ky. 248Skillman v. Hamilton (1867)
CASE 68 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT.
64 Ky. 250Louisville & Nashville Railroad v. Commonwealth (1866)
1. The revenue laws apply equally to both classes of persons, natural and artificial, subject to certain specified exemptions. 2. The Louisville and Nashville Railroad Company was subject to assessment and taxation, according to the value of its corporate estate, ever since it owned such estate, until the specific ta.x at the rate of $20,000 per mile of road was substituted by the act of February 20th, 1864. (Myers' Supplement page. 480.) 3. For a failure or refusal to give in a true list of taxable property, the county court has jurisdiction to enforce the penalty and fix the value of taxable estate. The circuit court of Franklin county has no jurisdiction of such a proceeding. 4. When an assessment has been made by the agent of the Auditor in the manner prescribed, and reported to the Auditor, he may then proceed in the Franklin circuit court against a delinquent corporation, by motion or ordinary proceeding, to coerce the payment of the amount so assessed. (Act of February 20th, 1864, Myers’ Supplement, p. 12.) 5. No right of action exists for the non-payment of taxes until after the assessment has been made as prescribed by law. The right to assess or coerce assessment is not affected or barred by the statute of limitations.
64 Ky. 263Roberts v. Armstrong's Adm'r (1866)
CASE 70 — PETITION ORDINARY APPEAL FROM BOONE CIRCUIT COURT. CITED— Hardin, 301. 1 Bibb, 443.
64 Ky. 266Walrath v. Viley (1866)
1. In order to bring before the Court of Appeals for adjudication the question whether the court below had properly or improperly rejected depositions, the record and bill of exceptions must show — that the rejection of the depositions was excepted to as required by the Code; the objections to the depositions and the grounds upon which they were rejected; and the rejected depositions must themselves be incorporated in the bill of exceptions, or be referred to and described therein, and made part thereof, as certainly as if they had been copied therein — all of which must be certified by the judge who presided on the trial. 2. If rejected depositions are copied in the record, and noted as such by the clerk, such depositions will not be considered as part of the record, unless they are incorporated in, or made part of the bill of exceptions, together with the objections and grounds of rejection.
64 Ky. 270Hutchen v. Gibson (1866)
An undertaking to pay money to H., in consideration that he was, by reason of his actual or supposed influence with the military authorities, to induce them to allow G. to avail himself of certain privileges to which he was lawfully entitled, is against public policy, and illegal.
64 Ky. 272Davis v. Gardiner & Co. (1866)
H. obtained money from the bank on a bill drawn on him by E., and indorsed by D., on the 14th September, 1865. On the 9th of January, 1866, H. made a mortgage to D., and borrowed from him a sum sufficient to pay the debt to the bank. The mortgage was attacked by creditors of H., as in contravention of the statute of 1856. It appeared that the mortgage was made in contemplation of insolvency, but it was held, that the remotely contingent liability'of D. on the bill did not constitute him a creditor, and that the mortgage was not within the act of March 10, 1856. (1 Slant. Rev. Slat., 553.)
64 Ky. 275Weisenger v. Taylor (1866)
CASE 74 — PETITION ORDINARY APPEAL PROM DAVIESS CIRCUIT COURT. CITED— Story's Bail., 499-500. B. ¿f A., 803. 2 Kent, sec. 40. 9 B. M.; Kister vs. Hildebrand. CITED— 2 Met., 442; Packard vs. Northcraft.
64 Ky. 278Righter v. Forrester (1866)
1. In construing the legal meaning and effect of the words “bodily heirs," as used in the will of George Palmer, the court say — “ Looking to the entire will to ascertain the testator’s intention in using the words ‘bodily heirs,’ whether in their technical sense or more popular signification as synonymous with the word children or descendants, our conclusion is, that the latter is the true construction.” 2. A mortgage on an interest in a tract of land was duly executed and acknowledged. After the acknowledgment of the mortgage, but before it was lodged for record in the county in which the land was situated, an execution was issued, and by the sheriff duly levied on the same interest in the land which was embraced in the mortgage. The land, in pursuance of the levy, was sold by the sheriff after the mortgage had been properly recorded. Held by the court — That the lien of the mortgagees was prior to that of the purchaser under the execution sale by the sheriff.
64 Ky. 292Cessna v. Thurman (1866)
CASE 76 — PETITION ORDINARY APPEAL PROM LARUE CIRCUIT COURT.
64 Ky. 294Ward's adm'rs v. Robinson (1866)
CASE 77 — PETITION EQUITY APPEAL PROM BOURBON CIRCUIT COURT. CITED— 1 J. J. Mar., 306; Dana vsl Brown, ¿yc. 2 B. M., 373; Robertson vs. Stewart. 3 B. M., 116; Bullitt vs. Stewart. 1 Duvall, 206; Parsons vs. Meyburgh. 7 B. M., 463; McCauley vs. Rodes. 3 Atlcins, 356; JEdgell vs. Haywood. 1 Littell, 309-10; Scott vs. McMillen. 4 Johnson's C. R., 690-93; McDermott vs. Strong. 2 Met., 358-61; Jones vs. Luck. Civil Code, secs. 40,474. 16 B. M., 181; Nixon vs. Jack. CITED— 1 Duvall, 206; Parsons vs. Meyburgh. Civil Code, secs. 474, 875.
64 Ky. 297Corbin v. Mulligan (1866)
CASE 78 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. CITED— 1 Rev. Stat., 460, chap. 34, art. 3, sec. 3. 1 Rev. Stat., chap. 34, art. 2, sec. 1, subdivision 1 7 Mon., 273 ; Combs vs. Castleman. 2 Dana, 35; Jones vs. Chiles. 1 Rev. Stat.,pp. 226, 470. 1 Rev. Stat., 227, sec. 7. 1 Rev. Stat., 461, chap 34, art. 3, sec. 4. Greenleaf s Evidence, sec. 164. Acts u/1836 — 7, p. 449. Acts of 1845-6, p. 18.
64 Ky. 306Hendrix v. Money (1866)
CASE 79 — PETITION EQUITY APPEAL FROM FLEMING CIRCUIT COURT. CITED— Civil Code, sec. 562. CITED— 4 Littell, 412; Rust vs. Larue. Civil Code, secs. 54, 586-7. 1 B. M., 247,
64 Ky. 311Salter v. Dunn (1866)
1. A defendant constructively summoned may prosecute an appeal in the court of appeals, and have the judgment of the lower court reversed, for errors in the record. (Payne vs. Witherspoon, 14 B. Mon., 272 ; Gill vs. Johnson, 1 Met., 649; Allen vs. Brown, 4 Met., 342). ,2. The prosecution of an appeal in the court of appeals by a defendant constructively summoned will be an appearance in the action, and will preclude him, upon all questions adjudicated by the court of appeals, from proceeding, under section 445, Civil Code, in the lower court, to reopen and retry the case. Having his election whether to appear and prosecute an appeal or to proceed in the court which rendered the judgment, to reopen and retry the cause, and having chosen to proceed by appeal [Dunn, §c., vs. Salter, $c., 1 Diwall, 342), he is precluded by the adjudication thereon, as much as though originally served with process, because the privilege to reopen and retry is only secured to defendants “ constructively summoned, and who did not appear." The judgment of the court of appeals on the validity of the attachments was conclusive on the lower court; but had there been no judgment of the court of appeals on the validity of the attachments, the case would have had a different aspect. 3. The judgment for the sale of lands under attachments being reversed by the court of appeals, it was proper for the court below to set aside all the sales of land purchased by the parties to the action, and also a sale to Lusk, who was attorney for one of the parties to the action. Lusk having conveyed the land purchased by him to his minor children, in consideration of natural love and affection, did not make them bona fide purchasers, but they must be regarded as volunteers, subject to all the equities available against their vendor. [Miller vs. Sail and wife, ante,p. 229.) 4. An attorney in a case is privy to his client, and as much bound, if not indeed more, to take notice of all the errors as the client; and where he becomes the purchaser at a judicial sale, made for the benefit of the client, every error and equity which would avail against him had he been the purchaser, growing out of the errors and irregularities of the record, would affect the attorney’s purchase. 5. Purchasers of lands at an erroneous sale which was set aside, made under an erroneous judgment which was reversed, having paid the purchase money, are entitled to a return of the same from the parties by whom it was received.
64 Ky. 325Louisville & Nashville Railroad v. Glazebrook (1866)
CASE 81 — TRAVERSE APPEAL EBOM TAYLOR CIRCUIT COURT. CITED— Redfield on Railways, pp. 137-8,368. 18 Pick., 443. 1 Starkie on Evidence, p. 363. Sedgwick on Measure of Damages, p. 620. 14 B. Mon., 76; Louisville and Frankfort Railroad vs. Milton. 2 Metcalfe, 177-84; Louisville and Frankfort Railroad vs. Ballard. CITED— 1 Starkie on Ev., sec. ed.,page 363. Redfield on Railways, 138, 369. Sedgwick on Damages, 620. 1 Cushing, 559; R. R. Co. vs. Clapp. 14 B. Mon., 76 ; Louisville and Frankfort R. R. vs. Milton. 2 Clark's Rep., 288; Henry vs. Dubuque R. R. 12 Barb., 227. 4 Ohio Rep., 308; Gusey vs. Cin., Wil. and Zanesville R. R. Co. 6 Ohio, 182; Little Miami R. R. vs. Cottell.
64 Ky. 327Martin, Cobb & Co. v. Curd's adm'r (1866)
1. Acceptors of bills who hold the property of the drawer to pay the bills or for reimbursement, are lien creditors to the extent of the property so held. If the drawer should die insolvent before the property is disposed of, and if, after it is disposed of, there should be a balance due them, such balance will be postponed until the other creditors without liens have been paid out of the residue of his estate- the same proportion of their debts which was realized by the lien creditors. (Section 3i, chapter 37, Revised Statutes, 1 volume, 509.) 2. A wife holding a note on her husband which was given to her by her father, as her separate estate, is entitled to the same rights and privileges, to the extent of such note, as his other creditors.
64 Ky. 335Sandford v. Farmers' Bank (1866)
CASE 83 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. CITED— Section 1, art. 15, 1 Slant. Rev. Stat., 327. 2 Met., 196; Forrest vs. Phillips. 7 Dana, 296, 301; Stapp vs. Phelps. CITED— 7 Dana, 233 ; Yancy vs. Halladay. 5 J. J. M., 569; Lyne vs. Bit. of Kentucky. 10 B. Mon., 263 ; Beall vs. Barclay. 10 B. Mon., 157; Grace vs. Mercer. 8 B. Mon., 542 ; Tom Davis vs. Tingle. 6 B. Mon., 113; Brothers vs. Porter. 4 J. J. M., 588; Major vs. Deer.
64 Ky. 348Riley's ex'or v. Sharp (1866)
CASE 84 — PETITION ORDINARY APPEAL PROM MERCER CIRCUIT COURT. CITED— Act of Congress of Feby. 25, 1862.
64 Ky. 350Short v. Wilson (1866)
CASE 85 — PETITION ORDINARY APPEAL PROM m'lEAN CIRCUIT COURT. CITED— Act of Congress of March 3, 1863, sec. 5. 3 Peters, 112 ; Browne vs. Keene. 3 Peters, 148 ; Jackson vs. Ashton. 5 Cranch, 364 ; Owens vs. Norwood. 13 Howard, 135 ; Mitchell vs. Harmony. 12 Wheat., 119 ; Williams vs. Norris. 12 Wheat., 129 ; Montgomery vs. Hernandez. 1 Mon., 204 ; Shepherd's heirs vs. Young. 3 Johns., 105 ; Smith vs. Elder. CITED— Act of Congress of March 3, 1863.
64 Ky. 355Beck v. Ingram (1866)
A captain of the Confederate army held responsible for mules seized and converted by him, “because there was no ground to apprehend that the destination of the mules was contraband, and more materially because, at the time of the seizure and conversion, the appellant ( defendant in the circuit court) was a paroled prisoner of the United States, denuded of all belligerent,rights of capture, and had neither order nor other authority to take the males for Confederate use.”
64 Ky. 357Ward v. George (1866)
CASE 87 — PETITION ORDINARY APPEAL FROM FLOYD CIRCUIT COURT. CITED— Civil Code, secs. 106, 108, 109. 14 Ben. Mon., 647; Pottinger vs. Mayfield. 3 Metcalfe, 459. CITED— Civil Code, sec. 108. 3 Metcalfe, 460; Fernold vs. Speers. CITED— • Civil Code, sec. 108. 13 Ben. Mon., 167; Kennedy's adm’r vs. Davenport, <fc.
64 Ky. 359Bank of Kentucky v. Herndon (1866)
CASE 88 — PETITION EQUITY APPEAL FROM CLARK CIRCUIT COURT. CITED— 19 Vermont, 288; Washburn vs. Bk. of Bellows Fall. 46 Maine, 258; Croolcer vs. Crooker. 7 B. Mon., 210; Black vs. Bush. 1 Parsons on Contracts, p. 20á, fifth edition.
64 Ky. 361Berry v. Hamilton (1866)
CASE 89 — PETITION EQUITY APPEAL PROM BATH CIRCUIT COURT. CITED— 10 B. Mon., 129 ; Berry vs. Hamilton.- 14 B. Mon., 31; Hamilton vs. Berry. 1 B. Mon., 270; Rogers vs. Thomas. 11 B. Monroe', Fairthorne vs. Wigginton. CITED— 4 Dana, 189 ; Black vs. Means. 6 J. J. M., 331; Charles vs. French. 2 Blackstone, 190. 1 jB. M., 270; Rogers, fyc., vs. Thomas. Civil Code, sec. 37. 6 Dana, 155; Nancy vs. Suttle. CITED— ■ 8 B. Mon., 343 ; Singleton vs. Singleton. Sec. 11 of Actof-Feby. 24, 1797. CITED— Civil Code, sec. 15. 15 B. Mon., 45; Lexington R. R. Co. vs. Punnett, fyc. 17 B. Mon., 146 ; Overby vs. Gray. . 2 Met., 326. CITED— 10 B. Mon., 129. 14 B. Mon., 31. 1 J. J. Mar., 329. 9 B. Mon.; Wood’s adm’r vs. Nelson’s adm’r. Civil Code, sec. 15. 15 B. Monroe. 2 Met., 619. 17 B. Mon., 146; Overby vs. Gray. MSS. Opinion, Oct., 1857 ; Christian vs. Pinckney. MSS. Opinion, Oct., 1857; Rankin vs. Eastin. 6 J. J. Mar., 353 ; Helm vs. Boone <f Talbot. 3 Met., 593. 8 B. Mon., 544; Davis vs. Tingle, <fc. Chief Justice Peters and Judge Robertson could not sit in the trial of this cause, and the Governor, pursuant to the statute, appointed the Hon. G. W. Craddock and the Pión. T. N. Lindsey special judges in their stead, to assist in the trial of the cause. The court was composed of Judges Williams, Hardin, Craddock, and Lindsey.
64 Ky. 368Wilhoite v. Hancock (1866)
CASE 90 — PETITION ORDINARY APPEAL PROM OWEN CIRCUIT COURT. CITED— 14 Ala., 235 ; Roberts vs. Connelly. Section 2, chap. 1, 1 Slant. Rev. Stat., 170. 1 Duvall, 313. 2 Greenleaf s Ev., sec. 577. 4 Bacon's Abr., title Limitations. 2 Car. Sf P., 303; 13 Mes. Sf Wei, 738. 31 Barb., 279; White vs. Nellis. 18 Barb. (N. Y.), 212 ; Knight vs. Wilcox. 2 Penn. (8 Harris), 354; Phealing vs. Kenderlain. 4 Conn., 38; Bartley vs. Richtmyer. 7 Iredell, 408; McDavid vs. Edwards. 23 Vt. (8 Washb.), 108; Haynes vs. Sinclair. 3 Gil., 583; Anderson vs. Ryan. 8 Black, 123; Hill vs. Wilson. CITED— 3 Greenleaf, p. 564, sec. 579. 5 Cowan, 106; Sargent vs.-.
64 Ky. 371Cole v. Palmer's ex'r (1866)
CASE 91 — PETITION EQUITY APPEAL PROM CLARK CIRCUIT COURT. CITED— Sec. 17, chap. 30, Rev. Stat. 1 Duvall, 8; Miller vs. Miller, Sfc. CITED— Sec. 17, chap. 30, Rev. Stat. 1 Duvall, 8; Miller vs. Miller, SfC. CITED— 1 Duvall, 340; Tuggle vs. Gilbert.
64 Ky. 375Phelps v. Quinn (1866)
1. The general principle that the purchaser of property cannot rescind the contract on account of the misrepresentations of its quality or condition by the vendor, unless it be made to appear that the vendor knew his representations to be untrue, does not extend so far as to protect a party from the consequences of his false representations in regard to visible defects when, assuming to know the nature or extent of such defects, he deceives or misleads the purchaser by a false explanation, however ignorant he may be of the real condition of the property. (Robertson vs. Clarkson, 9 B. Monroe, 507.) 2. In a sale of six mules which were not seen by or delivered to the purchaser, notwithstanding the execution and delivery of a note for the agreed price, and the assent of the vendor that the purchaser might take possession or control of the mules where they were, on a farm of a neighbor, there was still an implied undertaking on the part of the vendor that the mules were there ready to be received, in such condition as the vendor had represented in making the sale; and if, without fault or negligence in the purchaser, it turned out that one of the mules was already dead or could not be found at the place of acceptance, or that the purchaser had been deceived as to the soundness of the mules, or part of them, by the vendor’s misrepresentations or false explanations of their condition, the purchaser had a right to decline to receive the mules and rescind the contract in toto, whether the vendor was guilty of fraud or not. (Parsons on Contracts, 451.) /
64 Ky. 381City of Louisville v. Henning (1866)
CASE 93 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— City Charter of Louisville, sec. 1, art. 6, Act of March 24, 1851. CITED— 14 B. Mon., 651; Johnson vs. City of Lexington. 2 Metcalfe, 228; City of Covington vs. Powell. 30 Mo. Rep., 550. 11 American Law Register, 664.
64 Ky. 384Bank of Kentucky v. Harrison (1866)
1. A sheriff who fails to return process to another county, as required by law, is not liable to an action in that county for a breach of his official bond. 2. An action against a sheriff and his sureties on his official bond, for failing to return an execution from another county, and for failing in part to pay over money collected by him on said execution, is restricted to the county of which be is sheriff. In such a case the • breach of the bond is limited, by the 94th section of the Civil Code, to the county in which the sheriff qualified.
64 Ky. 387Price v. Poynter (1866)
1. The capture of horses for the public use of the Confederate army under military authority, express or implied, however wrongful in fact, was excusable as a lawful exercise of a belligerent right. A citizen of Kentucky was not more liable than others in the Confederate army who were not citizens. 2. In the late war the Federal government was the sovereign, and only sovereign, for recognizing and regulating belligerent rights, and on that subject no single State had any sovereignty, and Kentucky could not control or qualify belligerent rights by State legislation.
64 Ky. 401Louisville & Nashville Railroad v. Young (1866)
A railroad was responsible for the wanton or negligent transportation ob slaves so that they thereby escaped from, and were lost to their owner, and was liable to the owner for the value of slaves so escaping. But if the slave returned again to his. home, the railroad was only liable to his owner for the value of his services whilst gone.
64 Ky. 404Bell v. Louisville & Nashville Railroad (1866)
CASE 97 — PETITION EQUITY APPEAL ÍIIOÍL LOUISVILLE CHANCERY C0ÜRT. CITED— Civil Code, secs. 105, 106, 93, 94, 251, 440. Act of .March 11, 1862; Sess. Acts, 1862, p. 70. Act of Dec. 23, 1861; Sess. Acts, pp. 55-6, Myers, 39. Sec. 5, act of March 15, 1862; Myers' Sup., 42. 4 Metcalfe, 342; Allen vs. Brown. Act of March 27,1862, sec. 2, Sess. Acts, 102. 14 Ben. Mon., 271; Payne vs. Witherspoon. MSS. Opinion, Sept., 1854; Miles vs. Watson. MSS. Opinion, Oct., 1857; Bodley's heirs vs. Morris. 2 Black's U. S. Prize Cases, 695, 666, 669. Act of Congress of July 13, 1861. 1 Duvall, 233-4; Bland vs. Adams Express Company. 2 Black's United States Prize Cases, 665 to 699. 3 Vattell, chap. 18, section 294. Lawrence's Wheaton, part 4, chap. 1, page 521. Ib., note 171, page 522, et seep 7 Wheaton, Santissima Trinidad. Lawrence's Wheaton's Int. Law, Supplement, p. 18. Halleck's Int. Law, and Laws of War, p. 464. CITED— 1 Duvall, 233 ; Bland vs. Adams Express Company. Halleck, chap. 19, sec. 22, p. 464. Lawrence's Wheaton's Int. Law, Sup., pp. 18, 20, 32, and cases cited. CITED— Act of Oct. 1, 1861, Myers' Sup., 381. 6 Wheaton's Reports, 193. 1 Bax's Rep., 14; Whitaker vs. English. 12 Howard, 115; Mitchell vs. Harmony.
64 Ky. 412Newman v. Hazelrigg (1866)
An execution issued upon a replevin bond was returned by the sheriff satisfied, by the sale of land in 1861. After this sale was made, the land was recovered from the purchaser and subjected to the payment of the execution-defendant’s debts, under- the provisions of the act of 1856. (1 Revised Statutes, 553.) On notice and motion of the purchaser, who was the plaintiff in the execution, the court, at the November term, 1865, set aside the sheriff’s return of the sale of the land, and ■ thereupon execution issued on the replevin bond, which was enjoined by the sureties therein. The judgment of the court setting aside the return affirmed, and the injunction ordered to be perpetuated, upon the ground that the liability of the sureties in the replevin bond was extinguished by lapse of time.
64 Ky. 419Lewis v. King (1866)
A horse branded “U. S.” was repeatedly traded and held in private hands as private property for more than three years, and afterwads taken by Federal soldiers because of the brand. This brand was not alone sufficient to authorize the taking, and not sufficient evidence under the circumstances that the horse was the property of the government.
64 Ky. 421Slayden v. Boswell (1866)
CASE 100 — PETITION EQUITY appeal prom graves circuit court. CITED— 1 A. K. M., 326; Broadhead, Sfc., vs. McAlister, fyc. S A. K. M., 1093 ; Steel’s heirs vs. Taylor. 2 A. K. M., 798; Miller vs. Humphries, <^c. 4 J. J. M., 138 ; Saunders vs. Green. 4 Bibb, 426.
64 Ky. 423Chatham v. Pointer, Fisher & Co. (1866)
1. It is against the policy of the law to permit the officers and agents of the court to employ their authority as such for purposes of speculation or gain to themselves. 2. A combination between a commissioner appointed by the court to sell property whereby the commissioner becomes a partner, with other persons, in the purchase of the property sold by him, is fraudulent. In such a case, the commissioner and his partners are liable for the profits realized by them by such fraudulent transaction.
64 Ky. 427Wickliffe's v. Breckinridge's heirs (1866)
CASE 102 — BILL IN CHANCERY APPEAL FROM FAYETTE CIRCUIT COURT. CITED— 7 Mon., 56 ; Saunders’ heirs vs. Morrison’s ex'or, SfC. Brightly's Digest, p. 102, head, Virginia Land Warrants. CITED— 1 Parson's Cont., 35, 36. 3 Dana, 68; Buford vs. Francisco. Sedgwick on Damages, p. 304. Ckitty Con., 814. Bouvier's Inst., 1 vol., 335, sec. 861. 10 B. Mon., 88 ; Dudley vs. Price's aclm'r. 6 J. J. M., 229; Jeeter's adm'r vs. Durham, SfC. Chief Justice Peters and Judge Robertson could not sit on the trial of this cause, and the Governor, pursuant to statute, appointed the Hon. A. J. James and the Hon. G. W. Craddock special judges in their stead. The court was composed of judges Williams, Hardin, James, and Craddock.
64 Ky. 452Cassity v. Storms (1866)
When the right to take an appeal has been barred by the statute of limitations, the quieting effect of the statute has been perfected and exhausted, and neither the modification nor repeal of the statute will be construed so as to extend the time of taking' an appeal, or as embracing such actions, without express provisions to that effect.
64 Ky. 455Keith v. Amende (1866)
In bills of lading the expression that the goods were shipped “in good order and well conditioned,” should be considered as referring to the exterior and apparent condition of the boxes; and to their internal condition, only so far as it might be inferred from appearances.
64 Ky. 460Eifort v. Bevins (1866)
CASE 105 — PETITION ORDINARY APPEAL PROM UREENUP CIRCUIT COURT. CITED— Act of Congress, March 3, 1863; Edwards and others vs. Zeb. Ward, post. CITED— Act of Congress, May 11, 1866; Edwards, <fc., vs. Zeb. Ward. CITED— Acts of Congress of March 3, 1863, Feby. 20, 1863, May 11, 1866 ; Edwards, fyc., vs. Ward. 16 Peters, 101; Garden vs. Longest. 3 Or., 427; State of Ohio vs. Bliss.
64 Ky. 463Musselman v. Marquis (1866)
CASE 106 — PETITION EQUITY APPEAL EROM GRANT CIRCUIT COURT. CITED— Civil Code, section 299.
64 Ky. 466Beazley v. Maret (1866)
1. An action was brought against an absent defendant, who was constructively summoned; the petition was improperly taken for confessed, and real and personal estate were sold under the judgmeut. An appeal was prosecuted by an attorney employed by the defendant’s wife; the judgment ordering the sale was reversed. On the day the mandate of the court of appeals was entered in the court below the sale previously made under the judgment was confirmed, and an appeal was again prosecuted by the wife in the husband’s name, he still being absent; the order confirming the sale was affirmed. But a few days before the confirmation of the sale was affirmed in the court of appeals, the defendant appeared in person in the court below, and, on filing an affidavit, asked and obtained leave to answer in sixty days. At the next term of the court he presented and offered to file an answer presenting a valid defense to the action; but leave to file the answer was refused. Held — The answer ought to have been allowed. 2. One who has been constructively summoned and appears for the first time by appealing from the judgment rendered against him, will only be hold to have appeared in the court below on the day the mandate is entered, as if the citation had been served that day, and no judgment can be rendered against him at that term.
64 Ky. 472White v. Crutcher (1866)
CASE 108 — MOTION FOR NEW TRIAL APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Civil Code, sec. 371. 15 B. Mon., 631; Harris vs. Ray. 1 Metcalfe, 533; Batman vs. Megowan.
64 Ky. 474Joyce v. Joyce's adm'r (1867)
CASE 109 — PETITION EQUITY APPEAL PROM BULLITT CIRCUIT COURT, CITED— 2 Stant. Rev. Stat.,sec. 8,page 398, sec. 16, p. 402. 5 Dana, 241 to 250; Patterson vs. Pope. 9 J?. Mon., 291; Schoolfield’s adm’r vs. Rudd, fyc. 2 J. J. M., 121 ; Buckner vs. Morris. 1 Monroe, 249; Mason County vs. Lee. 9 Dana, 191; Grider vs. Payne. 9 Dana, 433 ; Morrison vs. Page. 5 B. Mon., 394; Dunlap, <^c., vs. O’Bannon. 8 B. Mon., 419 ; Taylor vs. Taylor. 12 B. Mon., 45; Rice vs. Downing. 1 Story’s Equity, 478. 2 John. Ch. Rep., 560. 4 John. Ch. Rep., 123. CITED— 1 Metccdfe, 407; Alexander vs. Lewis, 9 Dana, 483; Morrison vs. Page. 2 B. Mon., 86; Morris vs. Evans.
64 Ky. 477Rowlet v. Eubank (1866)
CASE 110 — PETITION EQUITY APPEAL FROM HART EQUITY AND CRIMINAL COURT. CITED— Civil Code, sec. 328. 2 Rev. Stat.j 140, chap. 65, p. 343, sec. 14. Littell’s Select Cases, 449. 2 A. K. Marshall, 63. 4 Bibb, 585. 3 J. J. Mar., 613. 5 Littell, 208. 7 Johnson, 159, 319. 8 Johnson, 98. 14 Johnson, 233. 1 Met., 389, 390, 393. 6 Mon., 579. 4 J. J. Mar., 456. 6 Mon., 579. 5 J. J. Mar., 267. 4 Mon., 41. 4 J. J. Mar., 386. CITED— Civil Code, chap. 5, secs. 331, 328, 874, 875. 4 J. J. Mar., Hildreth vs. Forrest. 5 B. M.; Bhultey tf- Co. vs. Johnso?i’s adm’r. 2 B. M.; Thompson vs. Thompson. 2 Rev. Slat., 140.
64 Ky. 482Troutman v. Vernon (1866)
CASE 111 — PETITION EQUITY APPEAL EROM HARDIN CIRCDIT COURT. CITED— 6 Mon., 195; Blight’s heirs vs. Banks. 7 Mon., 595; Nants vs. McPherson. 3 B. Mon., 17, 459. 3 Mon., 386; McClain vs. French. 7 Mon., 571; Speed, SfC., vs. Braxdell. 5 Littell, 186; Mattox vs. Helm.
64 Ky. 489Greer v. Powell (1866)
CASE 112 — PETITION EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT. CITED— Civil Code, sec. 571. CITED— 1 Slant. Rev. Stat., sec. 3, chap. I, p. 180. Drake on Attachments, secs. 582, 679, 680, 681, 683, 651, 548, 550. 3 Leigh (Va.), 113; Glassed vs. Thomas. Story on Sales, sec. 302, SfC. 18 B. Mon., 61; Francis vs. Francis. Sedgwick on Damages, s. p. 480-1, top p. 506-7,3d ed. 24 Barbour, 295; Wilson vs. Matthews. 3 Bibb, 92-3; Lillard vs. Whittaker. 3 Littell, 25-6; Sproule vs. Ford. CITED— Civil Code, secs. 560, 561, 562, 564, 568, 569, 571, 473. jRev. Stat., secs. 35, 36, art. 2, chap. 37. 13 B. Mon., 178; Thomas vs. Thomas. 1 Met., 22; Rogers vs. MitcheU. 1 Met., 597; Trabue’s ex’rs vs. Harris.
64 Ky. 500Baker v. Wright (1866)
The occupation of Bowling Green and the surrounding country by a Confederate army, and the installation of a temporary civil government under its military cover, suspended, co-extensively with their potential range, the government and laws of Kentucky, and not only compelled, but legalized submission to the authority, however spurious, of the do facto power.
64 Ky. 504Vance v. Vanarsdale (1866)
1.. An officer may levy on so much property as he may deem necessary to pay the debt and costs; but if, by reason of willfulness, ignorance, or want of proper care, he should levy on property having an extra value on account of some peculiarly valuable quality, as of blood in horses or cows, and, for this reason, make an excessive levy, he would, nevertheless, be responsible. 2. An officer levying upon stock and taking it into his possession, if he ' neglects it, or does not take at least as good care of it as an ordinarily prudent man would of his own, is responsible for accruing damages, whether such was the result of mere negligence or willfulness.
64 Ky. 508Hieronymous v. Mayhall (1866)
CASE 115 — PETITION EQUITY APPEAL FROM MERCER CIRCUIT COURT. CITED— 1American Leading Cases, p. 84. 1 Monroe, 106 ; McKinley vs. Combe. 1 Monroe, 232; Allen, Spc., vs. Camp. Revised Stat., chap. 63, art. 3, secs. 1-2. 1 Littell, 305. 5 J. J. M., 73. 7 Dana, 496. 3 Monroe, 31 and 158. 5 B. Mon., 305 and 310. 2 B. Mon., 239. 4 B. M., 299, 429. 3 B. M., 550. 6 B. Mon., 19 and 609. CITED— 1 Rev. Stat., 545, 546; 2 R. Stat., 129, 127, 230. Civil Code, secs. 167, 168, 4. 3 Stat. Law, 116 7 Ben. Monroe, 369. 1 American Leading Cases, 50 to 85. 4 Monroe, 122. . 1 Dana, 540 ; Doyle vs. Sleeper. 5 Dana, 331; Whitney, SfC., vs. Whitney. 7 Dana, 391; Howell’s heirs vs. McCreery’s heirs. CITED— 11 B. Monroe, 370. 7 Monroe, 479. 9 Dana, 450 and 103. 2 Johnson’s Chy. Rep., 35.
64 Ky. 511Faucett v. Faucett (1866)
1. A purchase, made by a trustee or guardian of the trust property, or by an executor of the estate of his testator, from himself, during the continuance of the fiduciary character of the purchaser, will not be sanctioned or allowed to prevail, unless it be made under the authority of the court and consent of the persons beneficially entitled to the property, who are competent to consent, and even then it will be regarded with suspicion. Such a purchase, however fair in itself, is voidable, at the option of the cestui que trust. Nor is it necessary to show that the trustee has made any profit or obtained any advantage , by his purchase; but it will be supported if found to be beneficial to the trust estate. ' 2. A trustee or executor will not be permitted to create in himself an interest opposite to that of the party for whom he acts, nor to traffic in the estate for his own emolument. This principle applies also to administrators.
64 Ky. 515Flournoy's devisees v. Flournoy's (1866)
CASE 117 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. CITED— 1 Story’s Equity, secs. 64, 80. Acts of 1849-50, page 43, sec. 1. Story’s Eq. Pleading, sec. 297, 392. Story’s Eq. Jurisprudence, sec. 824. Adams’ Equity, page 402, 17 B. M., 572; Flint vs. Spurr. 18 B. M., 855, 865 ; Driskil vs. Hanks. Loughborough, pages 242-3, secs. 5, 7. Civil Code, secs. 93, 96, 97, 1Met., 593 ; Frazer vs. Naylor. 1Dana, 170; Haskin vs. Spiller. 6 Dana, 374; Overton vs. Woolf oik. 14 B. M-, 172 ; Phillips vs. Johnson. 1 Jarman on Wills, 288, 43, 44. 6 Mon., 524; Robertson vs. Barber. 3 Call., 264, 289 ; Allen vs. Morrison. 8 Cranch, 66; Smith vs. Edrington. 6 Dana, 195; Warner vs. Van Swearingen. 10 B. M., 1; Marshall vs. Porter. 12 B. M., 437-8-9 ; Ross vs. Ross. 4 Met., 290; Broadwellvs. Broad-well. 2 Washburn on Real Property, 491, 493, 496. 18 B. M., 402-3 ; Burns vs. Ray. 1 Dana, 574; Simrall vs. Graham. Angelí on Limitation, sec. 384,385, 392, 399, 410, 3d ed. 3 Dana, 289 ; Miller vs. Shackelford. 4 Kent’s Com., 319, 635. 4 Watts Sergeant, 331; Hall vs. Matthews. 2 Watts Sergeant, 27; Cook vs. Nicholas. Angelí on Limitations, sec. 413 (3d ed.), 437 (2d ed.). 2 Dana, 30; Jones vs. Chiles. 3 Washington’s C. C. R., 475; Potts vs. Gilbert. 13 B. M., 482; Breeding vs. Taylor. Original Code of 1857, sec. 664. Amended Code of 1854, sec. 763. Acts establishing Cir. Courts (1802), see. 7, 1 M. and B., 488. 1 Dana, 247; Walker vs. Ogden. 2 B. M., 202; Caufman vs. Sayers. 5 B. M., 155; Sharp vs. Pike. 3 Littell, 103 ; Owings vs. Beall. Loughborough, 186-7, 242-3. Sec. 1, Act Mar. éth, 1850; Acts 1849-50, p. 43. Story’s Eq. Pleading, sec. 297 (5). 2 Story’s Eq. Jurisprudence, sec. 824 Adams’ Eq., 402. Civil Code, sec. 35. 17 B. Mon., 572; Flint vs. Spurr. 2 Smith’s Leading Cases, 563, 5th ed. CITED— 7 J. J. Mar., 58 ; Walton vs. Walton's ex. 12 B. M., 407 ; Ross vs. Ross. Civil Code, secs. 93-4-7. CITED— 2 B. M., 282; Moore vs. Webb. 9 Dana, 347; Caleb vs. Field. 7 J. J. Mar., 58 ; Walton’s hrs. vs. Walton’s ex. 12 B. M., 432; Ross vs. Ross. Civil Code, secs. 9, 96-97. 17 B. M., 513; Fleet vs. Speer. 18 B. M., 865; DriskeU vs. Hanks. 1 Johnson’s C. R., Ill; Wilkins vs. Wilkins. 3 Johnson’s C. R., 305; Phelps vs. Green. 6 Dana, 372 ; Overton vs. Woolfolk. 1 Met., 594 ; Frazier vs. Naylor. 2 J. J. Mar., 458; Tucker vs. Vance. 5 J. J. Mar., 15; Shields vs. Bolts. 1 Met., 496 ; Maddon vs. Allen. 4 B. M., 605; Farrow's hrs. vs. Edmonson. 8 B. M., 186; Gill and Simpson vs.. Fauntleroy. 18 B. M., 481; Burns vs. Ray. 1 Dana, 574; Simrall vs. Graham. 1 Dana, 170; Speller vs. Haskins. 14 B. M., 132; Phelps vs. Johnson. CITED— 7 J. J. Mar., 58; Walton vs. Walton's ex. 12 B. M., 438; Reporter's note.
64 Ky. 527Ellis v. Carr (1866)
CASE 118 — PETITION ORDINARY appeal prom henry circuit court. CITED— 2 Stant.'Rev. 8tat.,p. 140. Civil Code, secs. 328 to 332. CITED— 2 Stant. Rev. Stat., 140.
64 Ky. 530Kendall v. Coons (1866)
By the law of comity, a lien created by the law of Louisiana in favor of a wife, upon the estate and future acquisitions of her husband, will be enforced in this State. This lien inures to the benefit of the children of such wife; and when her personal property, which came to the hands of her husband, exceeded the value of the estate left by him at his death, a second wife of such husband is not entitled to any distributable share or dower in his estate.
64 Ky. 533Beazley v. Harris (1866)
1. A guardian of an infant married woman cannot be held responsible to her for her money which he paid to her husband who was of full age, in’good faith, without any notice or presumption of her non-concurrence. This fund vested absolutely in the husband and cannot be reclaimed. 2. The guardian of an infant married woman, with' her consent, paid the money of his ward on the purchase of a tract of land, for the conveyance of which her husband, who was also a minor, held a bond. After arriving at full age the husband exchanged this tract of land for another with his uncle, who -was familiar with all the circumstances, and caused a deed to be made to his uncle for the land. The husband became apparently insolvent, and thereupon the wife brought an action to assert her equity in the land, which was pro tanto purchased with her money. Held — That she had a lien upon the land for the amount of her money which was thus appropriated to its purchase.
64 Ky. 538Hahn v. Pindell (1866)
CASE 121 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— 1Hilliard, 383. 1 B. M., 307; Gates and wife vs. Jacob. 2 Rev. Stat., 230. ■ 3 Mar., 489. 2 Dana, 345. 5 Ves., 678, 681-6. 13 Ves., 601. 10 Ves., 423. 6 Ves., 629. 8'Fes., 348. 3 Ves., 740. 3Mar., 200.
64 Ky. 544Daniel v. McManama (1866)
A devise of land to J. S. D., in trust for R. M. D., qualified by a provision, that “should he not have a legitimate heir from his body living at his death," the estate to be divided between certain trustees for other children of the testator, gave to R. M. D. a defeasible fee, subject to be defeated by his dying without such heir. 1. The widow of R. M. D., he having died leaving “heirs from his body,” was entitled to dower in the land. 2. On the death of R. M. D., the land passed to the heirs of his body by descent from him, and not by devise from the testator.
64 Ky. 548Ferguson v. Landram (1866)
CASE 123 — PETITION EQUITY APPEAL ERO& eAIAAffl CÍRCUIT COURT. APPEAL FROM BOONE'CIRCUIT COURT. CITED— Stanton’s Code,p. 220, sec. 528, and p. 219. 2 Hill’s R., 159; Delafield vs. State of Illinois. 23 Howard’s R.,,400; Zabriskie ' vs. Cl. Co. and Cin. R. R. 21 Howard’s R., 539 ; Com. of Knox Co. vs. Aspinwall. 2 Black’s R., 722; Moran vs. Com. of Miami Co. 5 Dana, 18; Arnold, <fc., vs. Shields. 4 Wheaton’s R., 472; McCulloch vs. State of Md. 9 Wheaton’s R.,1; Gibbon vs. Ogden. 16 Peters’ R., 541; Prigg vs. Commonwealth-of Pa. 7 Howard’s U. S. R., 283 ; Passenger Cases. 16 B. M., 598; Dry den vs. Commonwealth of Ky. 21 Howard, 506; AMeman. vs,- Booth. 45 Pa. Rep., 275; 6.Kneedler vs. Lane et ah 1 U. S. Statutes at Large, 424. 8 Mass. Rep., 549. 12 Wheaton’s Rep., 19 ; Martin vs. Moth. 7 Niles’ Register, 137-9. 9 Wright’s Pa., 272, 291-2. 5 Wheaton’s Rep., 1; Houston vs. Moore. 4 Wheaton’s Rep., 22-3-4. 12 U. S. Statutes at Large, 731. 4 Wheaton’s Rep., 122; Sturgis vs. Crowninshield. 4 Wheaton’s Rep., 487. 9 Wheaton’s Rep., 758 ; Osborne vs. Bank of U. S. 16 Peters’ Rep., 435; Dobbins vs. Erie Co. 22 Howard’s Rep., 227; Smith vs. Davenport. 22 Howard’s Rep., 245; Foster vs. Same. 2Black’s U. S. R., 620; Bank of Commerce vs. N. Y. City. 24 Howard’s U. S. R., 169; Mmy vs. State of Cal. 5 Wheaton’s Rep., 23. 4 Am. Law Reg. {new series), p. 673. 9 B. M., 345-6; Chaney vs. Hooser. 5 Dana, 23 ; Sutton’s heirs vs. Louisville. 9 Dana, 23 ; Lexington vs. McQuillan’s heirs. 7 B. M., 167; Pearce’s heirs vs. Patton. 15 B. M., 491; City of Covington vs. Southgate. 2 Met., 350 ; Cypress Pond Draining Co. vs. Hooper. 17 B. M., 181; Waller vs. Martin. 9 B. M., 343. 14 Gray’s Mass. Rep. 2 vol. Law Reg. {new series), 621. 2 J. J. Mar., 576; Davis vs. Ballard. CITED— 4 Met., 213; Millet vs. Pottinger. 1 Met., 403; Short vs. Quinby. 4 B. M., 430 ; Bank of U. S. vs. Heath. 1 J. J. Mar., 358; Gully vs. Grubbs. 3 Mon., 186; Mitchell vs. Maupin. 3 B. M., 554; Ford vs. Williams. 7 B. M., 357-9 ; Brown vs. Foree. 7 B. M., 362; Brown vs. Smith. 5 B. M., 311; Young vs. Stalling. 1 Met., 405-6; Short vs. Tinsley Z' 4 Met., 80; Ward vs. Crotty. 6 B. M., 609. 6Dana, 185. 1 Dana, 269. 3 Dana. 571. 5 J. J. Mar., 574. 5 B. M., 306; Marshall vs. Hutcherson. 4 Met., 86; Mar aman vs. Mar aman. CITED— 2 Bouvier’s Law Die., 364. 1 Greenleaf on Evidence, 668, sec. 491. 3 M. Sf S., 67-69; Rex vs. DeBeringer. 17 Howell’s St. Tr., 637; Rex vs. Lranklin. AM. S., 532. 1 Phillipps’ Evidence, 239. 2 Russ, on Evidence, 720. 1 Mon.,p. 5; Com. of Far. and Mech. Bank of Shelby-ville vs. W. <§c R. Jarvis. 13 B. M., 16; Slack vs. Maysville and Lex. R. R. Co. 13 N. Y. Rep., 143 to 147; Town of Guilford vs. Supervisors of Chenango, Co. 19 N. F. Rep., 116 to 122; Bruster vs. City of Syracuse. 9 B. M., 534; Talbot vs. Dent. 11 B. M., 150; Justices of Clark Co. vs. Paris and Winchester Turnpike Road Co. 9 B. M., 343 ; Cheaney vs. Hooser. 34 Barbour, 69 to 79; The People vs. Howes. 36 Barbour, 179 to 192-3; The People vs. Lawrence. Am. Law Reg., Sep., 1865; Speer et al. vs. The School Directors of Blairsville. 2 Met., 351; Cypress Pond Draining Co. vs. Hooper. 2 vol. Acts 1865, p. 348. 9 Dana, 513, 521; City of Lex. vs. McQuillan’s heirs. 1 Rev. Stat., 295. 2 Rev. Stat., 258. 4 Met., 72 ; Chiles vs. Thomas. 6 Cranch; 87 ; Fletcher vs. Peck. 9 Harris, 164. 32 Conn. Rep.; Booth vs. Town of Woodbury. Am. Law Reg., Jan., ’67, p. 164; Taylor vs. Thompson. Story's Com., p. 425, sec. 593. CITED— 5 Dana, 19, 20, 21; Arnold Parish vs. Shields. 9 B. M., 532, 534; Talbot vs. Dent. 18 B. M., 426, 427; Goheen vs. Myers. 6 B. M., 160, 164, 167; Gorham vs. Luckett. 18 B. M., 852; Anderson Co. C. vs. Stone <§■ Son. 2 Bouv. Law Die., 167 — “Ministerial.” 1 Bouv. Law Die., 681 — “Judicial.” 3 Dana, 600; Isaacs vs. Taylor. 18 B. M., 674; Sasseen vs. Hammond. 9 B. M., 343, 346, 347 ; Cheaney vs. Hooser. 2 Met., 556, 557; Shields vs. Maltas. 2 Met., 353 ; Cypress Pond Draining Co. vs. Hooper, ¿fC. Am. Law Reg., Feb., 1866, 211. 32 Conn. Rep.; Booth vs. Town of Woodbury. 1 Rev. St'at., chap. 27, art. 21, sec. 2, subdiv. 4, p. 328. Civil Code, secs. 526, 528. ,13 B. M., 22, 26; Slack vs. Maysville and Lex. R. R. 13 art., sec. 14, Constitution of Ky. 1 art., U. S. Constitution, sec. 10, 2d subsec. 9 Wheaton, 203 ; Gibbons vs. Ogden. 6 Cranch, 87; Fletcher vs. Peck. 9 Harris, 164. 4 Wharton, 316. CITED— 13 B. M., 26-7; Slack and others vsi Maysville and Lex. R. R. 9 B. Mon., 534; Talbot vs. Dent. 11 B. M., 150; Justices Clark Co. vs. Paris and Winchester Turnpike Road Co. 9 B. M., 343-4; Cheaney vs. Hooser. ■ Am. Law Reg., Sep., 1865; Speer and others vs. School Directors of Blairsville. Am. Law Reg., Feb., 1866; Booth vs. Town of Wood-bury. 9 Harris, 164. CITED— 9 Dana, 524; Lexington vs. McQuillan. 9 B. M., 343 ; Cheaney vs. Hooser. 4 Peters, 514 ; Providence Bank vs. Billings. 4 Wheaton, 428 ; McCulloch vs. State of Md. 4 Comstock, 419 ; People vs. Brooklin. 19 N. Y., 5 Smith, 116; Brewster vs. Syracuse. 3 Kirnan, 143 ; Town of Guilford vs. Chenango Co. 13 B. M., 1; Slack vs. Maysville. 34 Barb., 69 ; People vs. Hawes. 36 Barb., 92; People vs. Lawrence. 4 Met., 72 ; Chiles vs. Monroe. 4 Met., 33 ; Ycaker vs. Ycaker. 1 Gray (Mass.), 22; Fisher vs. McGirr. 4 Met. (Mass.), 288; Norris vs. Boston. Sedgwick on Constitutional Law, 489. . Federalist, No. 32. 5 Wheaton, 1; Huston vs. Moore. 16 Peters, 53.9; Prigg vs. Pennsylvania. 5 Howard, 410; Fox vs. Ohio. 14 Howard, 13 ; Moore vs. Illinois. 50 Penn., 150; Speer vs. Blairsville. 32 Conn., 118; Booth vs. Woodbury. 2 Black’s U. S. Rep.,l\h, 732; Moran vs. Commissioners Miami Co. CITED— 2 Acts of 1865, 348. Story’s Com. on Con.,p. 425, sec. 593. Law Reg. for Jan., 1867, p. 174; Taylor vs. Thompson. CITED— ■9 B. M.; Cheaney vs. Hooser. 13 B. M.; Slack vs. Maysville and Lex. R. R. 2 Met. {Ky.); Maltas vs. Shields. ■ 4 Met. {Ky.); Yealcer vs. Yeaker. 34 Barbour (N. F.); People vs. Hawes. 36 Barbour (N. Y.); People vs. Lawrence. 9 Harris {Pa.)) Sharpless vs. Mayor of Phi’a. Am. Law Reg., Sep., 1865; Speer vs. School Trustees of Blairsville. These cases, involving mainly the same questions, were heard together, and separate opinions were delivered by Chief Justice Peters and Judges Robertson and Williams, respectively.
64 Ky. 602Burr, McGrew & Co. v. Woodrow (1866)
1. The same plaintiffs prosecuted two separate actions against the same defendants — the first for the recovery of the possession of land and damages — the second for the recovery of damages for the unlawful cutting of timber, wood, &c., on the same land. In the first action the plaintiffs recovered a verdict and judgment for the possession and one cent damages. On the trial of the second action, the first recovery was not a good plea in bar of the claim for damages committed before the recovery of the first judgment, and evidence showing that the plaintiffs’ claims for damages were not litigated in the first action was admissible. 2. Although, as declared in section 111, Civil Code, the plaintiff may unite in the same petition “claims for the recovery of specific real property, and the rents, profits, and damages for withholding the same,” this is a privilege of which he may or not avail himself in his discretion. ( Walicer vs. Mitchell, 18 B. Monroe, 544.)
64 Ky. 607Pettit's adm'r v. Johnson (1866)
CASE 126 — PETITION EQUITY APPEAL FROM CALDWELL CIRCUIT COURT. CITED— Acts of September 30,1861, and March 1, 1862, Myers, Sup.,pp. 424-5. Rev. Stat., chap. 86, art. 2,pp. 592-3. 1 Met., 282; Todd vs. Dowd’s heirs. 5 Dana, 21 to 24; Arnold, fyc., vs. Shields, fyc. 3 Met., 525; Mattingly’s heirs vs. Read. 2 Met., 515; 'Wells vs. Cowherd’s heirs. 2 Met., 574; Bell vs. Clark. 18 B. Mon., 780 ; Wyatt vs. Mansfield’s heirs. 18 B. Mon., 387 ; Barrett vs. Churchill. 16 B. Mon., 216; Carpenter, fyc., vs. Strother’s heirs. 5 Dana, 548 ; Johnson vs. Gresham. 7 B. Mon., 60 to 62; Lampton vs. Usher’s heirs. 10 B. Mon., 510 ; Nelson’s heirs vs. Lee. 12 B. Mon., 474; Harrison vs. Hard. 9 Dana, 533 to 541 ; McKee’s heirs vs. Hann, Spc. 2 Bibb, 597 ; Roberts vs. Wilson. 1 Duvall, 349 ; Thornton, éf-c., vs. McGrath, Sfc. CITED— Story’s Equity Jurisprudence, sec. 96.
64 Ky. 616Commonwealth v. Webster (1866)
A surety-in a bail-bond cannot be made responsible on the bond for the failure of the principal to appear and answer the charge, when the principal had been arrested and removed from the county by order of a provost marshal, an officer of the United States government.
64 Ky. 617Shinkle v. City of Covington (1866)
The city of Covington, being the proprietor of a wharf within its corporate limits, on the shores of the Ohio and Licking rivers, and keeping the same for hire, and charging for the landing and anchorage of boats at said wharf, is liable in damages for the loss of a coal-boat at said wharf, occasioned by the want of reasonable care and skill in providing proper fastenings for boats when lying at said wharf.
64 Ky. 621Williams v. Jones (1866)
CASE 129 — PETITION EQUITY APPEAL FROM BOYD CIRCUIT COURT. CITED— ' Sedgwick on Damages, p. 208. 4 Paige's C. R., 628; Everson vs. Kiriland. Parsons on Contracts, pp. 432, 441. 2 Greenleaf on Ev., sec. 253. 7 Mass., 256; Rockwood vs. Mien. Rutherforth's Institutes, ch. 18. 9 Georgia Rep., 440 ; Beverly vs. Burk. CITED— 6 Dana, 355. 3 Dana, 576.
64 Ky. 629Martin v. Hortin (1866)
CASE 130 — PETITION EQUITY APPEAL EltOM ROWAN CIRCUIT COURT. CITED— 3 Cond. Wheaton, 358, and notes. Myers’ Sup., title Limitation. 1Duvall, 20; Laughlin vs. Dean. 1 Duvall, 232; Bland vs. Adams Express Co. 1 Duvall, 182; Commonwealth vs. Holland. 4 Dana; Arnett vs. Clouds. 2 Pothier, 114, 116. 17 B. M.; Brookover vs. Hurst. 1 Acts 1863-4, chap. 507, of Session Acts. 2 Gallison, 485. 3 Washington C. C. R., 484. CITED— 1 Duvall, 20; Laughlin vs. Dean. 4 Mon., 394. Myers' Sup., 293.