67 Ky.

Volume 67 — Kentucky Reports

159 opinions

67 Ky. 1Overstreet v. Rice (1868)
CASE 1 — PETITION EQUITY APPEAL PROM TAYLOE CIRCUIT COURT. CITED— 1 Johnson’s Chy. R., 279-80; Parkhurst vs. VanCourt- • lant. 12 Ves., 466; Blagam vs. Bradbear. 6 B. Mon., 101-3; Curd vs. Kay; 1 Dana, 2-3. 4 Bibb, 466; Ellis vs. Deadman’s heirs. 3 Marshall, 445; Fowler vs. Lewis. 3 Littell, 262; Fugate vs. Hansford. 1 Johnson’s Chy. R., 131; Phillips vs. Thompson. 1 Bibb, 205-6; Grant’s heirs vs. Craigwiles. Revised Statutes, chap. 22, 1 Stanton, 264-5. 2 Marshall, 490; Rankin vs. Maxwell’s heirs. CITED— 6 B. Mon., 100; Kay Casey vs. Curd. 4 Bibb, 466; 3 Littell, 262. 3 Marshall 445; Fowler vs. Lewis. 3 Met., 583; Harrow vs. Johnson, fyc. 2 Duvall, 156; Warren vs. Barker <$f Co. 1 J. J. M., 76; Rowland vs. Garman.
67 Ky. 8Webb v. McCauley (1868)
1. Allowances made by county courts to jailers for fees and services as such, cannot be attached in the hands of the sheriff. 2. Fees and allowances to jailers being necessary, and provided by law, to enable them to discharge their official duties, public policy will not permit a creditor to attach these fees and allowances in the hands of the sheriff.
67 Ky. 13Stephens & Hermes v. Farrar Bros. (1868)
CASE 3 — MOTION APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Act to amend chap. 4, Rev. Slat., Myers’ Sup., 685. CITED— Act of 1866, Myers’ Sup., 685.
67 Ky. 17Champion v. Robertson (1868)
,1. Sureties are exonerated in a judgment on a note by the plaintiff’s forbearing to issue au execution for more than a year, in consideration of ten per cent, advanced to him by the principal obligor, without the consent of the sureties in the note. 2.- The obligee, when he made the contract for indulgence with the principal in the note, is presumed to have known that the other obligors were sureties, from the fact that the note was executed to himself. 3. Plaintiffs, before answer, have the right to file an amended petition alleging material facts, and the circuit court had no judicial discretion to reject it.
67 Ky. 19Hikes v. Crawford & Long (1868)
CASE 5 — PETITION ORDINARY APPEAL EK0M JEEEEBSON COUKT 03? COMMON PLEAS. CITED— 3 Metcalfe, 500 ; Bums vs. Anderson. 1 Metcalfe, 253 ; Hoskins vs. Parsons. 3 B. Mon., 8; Burrus 4* McConnoughy vs. Parrish. 2 B. Monroe, 303 ; Kouns vs. Bank of Kentucky. 8 Dana, 68; Buford vs. Francisco. Sess. Acts, 1867, page 35. CITED— 21 How., 97; 19 How., 233; 26 Barb., '614. 10 Abb., 478; 13 Abb., 268; 1 Bos., 570. 12 Barb., 215; 4 Duer, 261; 6 Bosw., 66, 154. 3 B. Mon., 8; 1 Mon., 90, 249; 1 Met., 251. 6 Mon., 190; 4 B. Mon., 305 ; 2 B. Mon., 303. 1 Bush, 474 ; Joyce vs. Joyce's adm'r. 16 B. Mon., 351; Merrett vs. Pollys. Gollyer on Partnerships, secs. 414, 473-4-5-6-8. 6 Mon., 492-5; Beard vs. Smith.
67 Ky. 23O'Neal v. Bannon (1868)
CASE 6 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— Act of Aug. 23, 1862, Myers' Sup., 426. Civil Code, secs. 34, 35, 36.
67 Ky. 25O'Bannon v. Miller & Hopkins (1868)
Each partner has a lien on the firm property. The creditors of the firm are entitled to that lien, by equitable substitution; and that lien, by subrogation, is paramount to attachment liens, created on debts which are not partnership debts.
67 Ky. 27Rutherford's heirs v. Clark's heirs (1868)
CASE 8 — PETITION EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. CITED- Act of 1797, secs. 10, 13, B. $ M., 1542. Act of 1820, M. Sp B., 1548. Act of 1842, Lough., 545. Act of 1810, M. 4- B., 671. 3 Marshall, 380; Brown vs. Hobson. 1 Dana, 304; Simpson vs. Hawkins. Revised Statutes, 1 Stanton, 513. CITED— 1 Littell, 258; Owings vs. Beall. 3 Marshall, 303 ; Embry vs. Miller. 4 Bibb, 484; Carmichael vs. Elsendorf. 3 J. J. Mar., 249, 250 ; Coleman vs. McKinney. 2 Bibb, 387; 2 Bibb, 220. 1 Metcalfe, 101-2; Coffey vs. Wilkinson’s heirs. 5 N. Y., 483; 9 N. Y., 241. 9 Johnson, 55; 12 Johnson, 488. 10 Johnson, 172 ; 13 Johnson, 406. 4 Mon., 376; Stitte vs. Jones. 1 Dana, 390 ; Swearingen vs. Fields.
67 Ky. 37Watson v. Robertson (1868)
1. In payment for the wife's lot, sold and conveyed by the husband and wife, the purchaser assigned to her a note for eight hundred and fifty dollars. The husband afterwards, without objection on her part, appropriated the proceeds of the note to the improvement of a lot for which he held the title bond of his vendor. This was suck a conversion and possession of the proceeds of the wife's properly as to vest it absolutely in the husband, and render it liable for his debts, even in opposition to his wife’s claims for an equitable provision for herself and children. 2. If the wife have a chose in action or a right to property not reduced to possession, and which cannot be reached by a creditor of the husband without the aid of a court of equity, the chancellor will not subject it to the debt of the creditor in opposition to the wife’s claim to have a suitable provision made for herself and children; yet, when it has been so reduced to possession, or converted by the husband to his use, and especially where this is done without any intention of making the wife her husband’s creditor, or otherwise preserving her individual rights, the court will not interpose to provide for her to the exclusion of the claim of creditors. ( Whitesides vs. Dorris and wife, 1 Dana, 108; Martin vs. Trigg, §c., 8 B. Mon., 529; Latimer vs. Glenn, 2 Bush, 543.)
67 Ky. 40Alfriend v. Hughes (1868)
1. Money advanced or loaned, to be bet of wagered on a horse race, cannot be recovered. The Revised Statutes provide that all such contracts and considerations “shall be mid." (Rev. Sta-t., chap. 42, sec. 1.) 2. Under the general issue, the eireuit court properly allowed and considered the special finding of the jury, to the effect that the action was based upon a gambling transaction. 3. The plaintiff is entitled to notice of every defense intended to be relied on, consisting of “new matter constituting a defense,” by a statement of such matter in the answer. This rule does not apply to a case like this, in which, from the plaintiff’s own proof of the contract he seeks to enforce, the contract is shown to be, according to express law, absolutely void.
67 Ky. 43Belknap v. Martin (1868)
CASE 11 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— Revised Statutes, sec. 17, chap. 47. 17 B. Mon., 55; Stuart vs. Wilder. CITED— 17 B. Mon., 549; Lyons vs. Fields. Revised Statutes, sec. 24, chap. 80. 1 Wheaton, 303; Story’s Equity, sec. 1065. 2 Wash, on Real Prop., 320 ; 1 Wood Conv., 498, note.
67 Ky. 45Duncan v. Headley (1868)
CASE 12 — PETITION ORDINARY APPEAL FROM MERCER CIRCUIT COURT. CITED— Civil Code, sec. 221, and, amendment of 1856. 2 Met., 405; Mills vs. Brown, <fc. CITED— 2 Met., 405; Mills vs. Brown, ¿y-c.
67 Ky. 46Detherage v. Montgomery (1868)
Motion for a new trial in the circuit court is essential in an action wherein the issue presented by the pleadings was submitted to a jury. The failure to make such motion precludes the appellant from the opportunity of having the errors complained of corrected in the Court of Appeals. [Humphreys vs. Walton, 2 Bush, 580.)
67 Ky. 47Brown, Bro. & Co. v. Martin (1868)
The right of exemption of a homestead under the act of February 10, 1866 [Myers' Supplement, 714), depends upon the present and actual purpose and intention of the debtor to use and enjoy the property sought to be exempted, as a home for himself and family, and that right does not exist where the residence of the debtor and his family is permanently located elsewhere.
67 Ky. 51Dannelli v. Dannelli's adm'r (1868)
CASE — 15—PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— 2 Jarman on Wills, 70, 140, 71, 156, 132. 2 Redf. on Wills, 336. 2 Will. Ex’rs, 989, 1001-2, 993-7, 1004-5. 15 Ves., 92; 5 Ves., 548. 2 Dow. P. C., 482; 4 Comst., 236, 238. 7 B. Mon., 130; Kuhl vs. Kauer. 5 J. J. M., 475; Snead vs. Ewing. Story’s Conflict of Laws, sec. 93, s, t, w, 114-16, 16 a, 105 a; Phillips on Ev., p. 493. 2 Greenlcaf on Ev., 3 ed., chap. 3, part 2,4th ed.,p. 95. 3 Marshall, 369-73 ; Dumarsly vs. Fishly. ■3 Mar., 327; 4 Mon., 367; 5 /. /. M., 148. Revised Statutes, 2 Stanton, pp, 1, 2. CITED— Burge, Comm, on Col. and For. Law. Jarman on Wills; Williams on Executors. Redjicld on Wills; Roper on Legacies. Story's Conflict of Laws ; Greenleaf on Evidence. Revised Statutes, chap. 30, sec. 6, etc. Phillips's Evidence; Powell on Devises, 282n, et seq. Wigram on Wills ; Briggs vs. Shaw, 9 Allen, 516. Wheeler vs. Dunlap, 18 B. M., 292. Allan and wife vs. Vanmeter's Devisees, 1 Met., 276. Skeen, etc., vs. Fishback, 1 Mar., 357. Trotter vs. Trotter, 4 Bligh N. S., 502. Gordon, etc., vs. Brown, 5 Eng. Eccl. Rep., 178. Anstruther vs. Chalmer, 2 Simons, 1. Boyes vs. Bcdale, 9 Jur. N. S., 196. Burtwhistle vs. Vardill, 5 Barn, and Cress., 438, Harrison, etc., vs. Nixon, 9 Peters, 505. Sneed vs. Ewing and wife, 5 /. J. Mar., 476. Stevenson vs. Gray, 17 B. M., 193. Jackson's ad. vs. Moore and wife, 8 Dama, 171. Birncy vs:Hann, 3 Mar., 320. Whitlock vs. Baker, 13 Ves., 514. Arayo vs. Curritt, 1 Louis, 54i. Crosby vs. Huston, l Texas Rep., 231. Gattcrall vs. Catterall, 11 Jurist, 914. Ward vs. Dcy, 1 Roberts, 759. Piers vs. Piers, 2 H. L. Cases, 331. Standcn vs. Standcn, Peake, 82. Dumarsly vs. Fishly, 3 Mar., 370. Wilkinson vs. Adam, 1 Vesey and B., 467. Metham vs. Duke of Devon, 1 P. Williams, 529. Beachcroft vs. Beachcroft, 1 Madd., 430. Gill vs. Shelley, cited in Wigram, sec. 55. Lord Woodhouselee vs. Dalrymple, 2 Mcr., 419. Steele, etc., vs. Price and wife, 5 B. M., 69.
67 Ky. 64Commonwealth for Tiffany v. Hurt (1868)
CASE 16 — PETITION ORDINARY APPEAL FROM ADAIR CIRCUIT COURT. CITED— 2 Metcalfe, 428-9 ; Goodman vs. Rout. Revised Statutes, 1 Stanton, 493. CITED— 1 J. J. M., 551; Bell vs. Commonwealth, Sj-c. 2 Mar., 107 ; Miller vs. Field. 4 J. J. M., 210 ; Taylor vs. Bradley. 3 B. Mon., 328 ; Bassett vs. Bowman.
67 Ky. 67Newman v. Metcalfe County Court (1868)
CASE 17 — PETITION ORDINARY APPEAL FROM METCALFE CIRCUIT COURT. CITED— »Revised Stat., secs. 1 and 6, art. 3, chap. 26, 1 Stant., 300, 301. Rev. Stat., sec. 3, art. 2, chapter 26, 1 Stant., 297. Myers’ Supplement, p. 126. ‘ • 18 B. Mon., 621; Todd vs. Caines. 2 Metcalfe, 203-4; Taylor vs. Nunn. 13 B. Mon., 306; Stevenson vs. Huddleson.
67 Ky. 70Jarboe v. Colvin (1868)
CASE 18 — PETITIONS ORDINARY APPEALS PROM MARION CIRCUIT COURT. CITED— 2 Met., 177; Chenoweth vs. Fielding. 3 Met., 248; Finnell vs. Cox. Civil Code, secs. 670, 728, 729, 259, 260, 145, 588. 1 Met., 489 ; Patterson vs. Caldwell. Revised Statutes, Myers' Supplement, p. 714. MSS. Opn., June, 1858; Moore's adm'r vs. Shepherd,. 4 Dana, 186; Campbell vs. Johnson. MSS. Opn., December 8, 1866; Abell vs. Park. CITED— 2 Met., 209, 211; Schwein vs. Sims. Act of 1861, sec. 11, Myers' Sup., 40.
67 Ky. 77Dedway v. Powell (1868)
CASE 19 — PETITION ORDINARY APPEAL FROM GREENUP CIRCUIT COURT. CITED— 2 Greenleaf sec. 414. 3 Blackstone, Sharswoods ed., 122, sec. 5. 4 Bibb, 99 ; Martin vs. Melton. CITED— 10 i?. Mon., 418; Mills and wife vs. Wimp. 5 Mon., 396; Wiley vs. Campbell. Cook on Defamation, pp. 9, 13, 14.
67 Ky. 80Jones v. Hood (1868)
CASE 20 — PETITION ORDINARY APPEAL PROM ADAIR CIRCUIT COURT. CITED— Civil Code, sec. 153. CITED— Revised Statutes, section 3, article 1, chapter 50. 2 Metcalfe, 122; Hardin, 539. 2 J. J. M., 310 ; Creel vs. Bell. 3 /. J. M., 391; 7 B. Mon., 123. . 7 B. Mon., 109; 8 B. Mon., 192 10 B. Mon., 256.
67 Ky. 82Morgan v. Bank of Louisville (1868)
1. Commercial paper, which was made in New Orleans, Louisiana, before the war commenced, matured, was payable, and protested for nonpayment in that city after the war became flagrant in 1861. The maker and first indorser were residents of Louisiana; the last indorser was a resident of Kentucky. The paper was held and protested by a bank in New Orleans, although it, at that time, belonged to a bank in Kentucky. Held — That in order to make the Kentucky indorser responsible, it was essential that he should have been notified of the protest at the earliest reasonable practicable moment after mail communications were re-established from New Orleans after the raising of the blockade of that place in 1862. 2. Indorsers, resident in the jurisdiction of one belligerent, of commercial paper which matures, is payable, and protested for non-payment in the jurisdiction of the other, whilst the war is flagrant, are entitled to notice of the protest at the earliest reasonable practicable moment after mail communications are re-established. If such notice is not given, such indorsers are exonerated from liability.
67 Ky. 89Hoglan v. Carpenter (1868)
1. The office of postmaster is incompatible with the office of county judge. 2. By accepting or continuing to hold any office of trust or profit under the United States, the incumbent thereby vacates any civil office in Kentucky which he holds, or to which he may be elected. (Constitution of Kentucky, sec. 18, art. 8; Patterson vs. Miller, 2 Met., 293.) 3. Whilst the acts of a de facto officer are good and binding as to third parties, as to himself they are null, and may be questioned by any kind of proceedings, and in all proceedings. 4. A certificate of election, or even a commission, is not prima facie evidence of eligibility to the office.
67 Ky. 92Smith v. Wells' adm'x (1868)
1. On a motion for judgment on a bond suspending a sale of property levied on to satisfy an execution under section 713 of the Civil Code, in determining its sufficiency the notice should be considered in connection with the bond. 2. A landlord does not waive his exclusive lien for rent upon his tenant's property by taking personal security for the rent. The acceptance of such personal security is not inconsistent with the lien conferred by the statute. 3. A surety in a tenant’s bond for rent may take up the bond, and have it assigned to him, so as to substitute him to all the rights and liens of the landlord. 4. Sale under an execution-levy, on property of a tenant upon which his landlord has a lien for rent, may be suspended by the landlord, or by the surety of the tenant in his bond for the rent, by executing bond as provided in section 7] 3 of the Civil Code. On such bond, when the property levied on is not sufficient to pay the rental, the plaintiff in the execution is not entitled to any judgment. 5. A judgment for damages is erroneous in ordering the payment of damages by reference to the bond — “ and also the ten per cent, in damages, as agreed to, in the bond herein" — without ascertaining any specific sum to be recovered.
67 Ky. 98Commonwealth v. First National Bank (1868)
CASE 24 — PETITION APPEAL FROM FRANKLIN CIRCUIT COURT. CITED— Act of Congress of June 3, 1864, 2 Brightley’s Digest, 51, sec. 41. 3 Wallace, 573 ; Van Allen vs. Assessors. Bradley vs. People of Els.; People vs. Commissioners N. Y. Wright, SfC.,vs. Stilz; Frazer vs. Siebern, Ohio; and Markoe vs. Hartrauft — the last four cases being re-reported in Law Register for June, 1867. CITED— Act of Congress of Feb. 21, 1862. 2 Peters, 449; Weston vs. City of Charleston. 2 Black., 628; Bank of Commerce vs. New York. 2 Wallace, 200; Bank Tax Case. Act of Congress as amended in 1864, sec. 41. 3 Wallace, 573 ; VanAllen vs. Assessors. Act of March 11, 1867, Ky. Act of Feb. 9, 1865, Ky. 4 Wallace, 459; Bradley vs. People. 4 Wallace, 244; People vs. Commissioners. Revised Statutes, 2 Stanton, pp. 239, 266. Revised Statutes, Myers’ Supplement, p. 482. National Currency Act of Congress, Feb. 23, 1865. 23 Ind., 331; Whitney vs. City of Madison. 4 Wheaton, 316; McCullough vs. Maryland. 9 Wheaton, 738; Osborne vs. U. S. Bank. 16 Peters, 435; Dobbins vs. Commissioners. 23 N. Y. R., 204; People vs. Commissioners. Markoe, fyc., vs. Auditor General of Pennsylvania. MSS. Opn.- — probably reported in last Pennsylvania Reports.
67 Ky. 107Hayden v. Moore (1868)
CASE 25 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. CITED— Myers’ Civil Code, secs. 373, 379, 299, 584, and notes 488 and 491. CITED— Civil Code, 4th sub-section of section 579. 11 B. Mon., 219.
67 Ky. 110Jacob v. Jacob (1868)
1. “All my estate, real and personal, * * ® shall be equally divided among my children. * * * The share of my estate allotted to my son William R. Jacob, shall be retained by my executors, paying to him during life, quarter-yearly, the net proceeds of the rents and profits thereof; * * * but he shall have no power to sell or encumber any part of the estate allotted, or the profits thereof, or lo anticipate its receipt; nor shall the same be in any way liable for his debts. After his death the property, with the unexpended avails, shall be conveyed and paid to bis descendants, * * * in the same manner as it would pass by the law of descents, if the same were to descend from him. If there be no such descendants, then the same shall be conveyed and paid to his heirs.” Wm. R. Jacob died, leaving a widow and one child. In construing the foregoing clauses, &c., of the will of John I. Jacob, the court held that the legal title of W. R. Jacob’s share remained in the executors as trustees, and that the testator intended to carve out a life estate only to him; that he did not take a fee by implication, but only a life estate, with remainder, which passed by the will, and not by the law, to his descendants or heirs; but these devisees in remainder, though taking under the will, and not as descendants or heirs of W. R. J., still take precisely the same as though the property had descended by law from him; and his widow took a dower interest as legatee by implication, and the child took the other estate in fee, just precisely as though the property had been owned in absolute fee by its father, and he had died intestate. 2. A widow is entitled to dower, as legatee by implication, in the life estate which was devised to her husband, with remainder at his death to pass by the law of descents to his descendants. 3. Previous clauses of a will must be construed as harmonious with subsequent clauses, and if inconsistent therewith, they must give way under a familiar rule, that the last will must prevail.
67 Ky. 121Pack v. Carder (1868)
CASE 27 — PETITION EQUITY APPEAL PROM GRANT CIRCUIT COURT. CITED— 3 Bibb, 183; Cox vs. Fenwick. 3 Littell, 192; McGee vs. Beall. 5 J. J. Marshall, 324; Richardson vs. Baker. CITED— Revised Statutes, sec. 26, 2 Stanton, 230. 3 J. J. Marshall, 178; Stewart vs. Hutton. 6 B. Mon., 71, 72; Honoré'1 s ex'r vs. Bakewell. 1 Star ¡tie's Evidence, page 549.
67 Ky. 135Thomas v. Mason County Court (1868)
CASE 28 — TAXATION APPEAL PROM MASON COUNTY COURT. CITED— Revised Statutes, Equalization Act of 1852. Revised Statutes of Ohio, vol. 2, pp. 1441-42, sec. 4. CITED— Revised Statutes, sec. 12, 2 Stanton, 253. 7 Dana, 343; Johnson vs. Commonwealth. Loughborough, Statutes 1837-8, p. 511. Acts of 1845,80. 8 B. Mon., 2; Commonwealth vs. Hays.
67 Ky. 138McMahon v. Lewis (1868)
CASE 29 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. CITED— Revised Statutes, sec. 1, art. 2, chap . —, 2 Stant., 8. 2 Met., 252 ; Pell vs. Cole. 8 Met., 335; Marshall vs. Miller. CITED— 2 Stanton, page 8.
67 Ky. 139Todd v. Caplinger (1868)
CASE 30 — PETITION ORDINARY APPEAL PROM SHELBY CIRCUIT COURT. CITED— Act of March 6,1854, sec. 1, 1 Stanton, 568. 18 B. Mon., 122; Love vs. Harris. CITED— Session acts, 1853-4, page 72. 18 B. Mon., 122; Love vs. Harris.
67 Ky. 145Moorman v. Beauchamp (1868)
1. A denial in an answer, which is not such as the Code requires, dispenses with extraneous proof. 2. An affirmative allegation in an answer, that the lien attempted to be enforced by the plaintiff, had been waived, is not of itself proof of such alleged waiver.
67 Ky. 146Harrison v. Griffith (1868)
1. A widow is entitled to dower in what remains of the proceeds of the sale of a house and lot, to which her husband held an equitable title at his death, after satisfying a vendor's lien, and also satisfying an execution lien in favor of the Commonwealth against him as sheriff, to satisfy which he had surrendered the house and lot in writing. 2. A surrender in writing of real estate, to be levied upon and sold to satisfy an execution, must be regarded as so far an alienation of the equitable title. 3. Dower in money is directed to be set apart by requiring the widow to give bond for its return at her death, or by paying her absolutely the present value of her dower interest, to be estimated according to the American annuity and life tables, taking into consideration her age, health, and probable duration of life.
67 Ky. 149Johnson v. Parker (1868)
1. A citizen of Ohio made to another citizen of that State a voluntary-deed, assigning all liis estate, debts, &c., everywhere, for the payment of all his own debts, without discrimination or preference, according to the laws of Ohio regulating assignments by “insolvent debtors." After the date of the assignment, Kentucky creditors, in the courts of Kentucky, attached a debt due by a citizen of Kentucky to the non-resident insolvent. The attaching creditors never acceded to the assignment. Held — That in the courts of Kentucky the attachment liens have preference over the title and claim of the assignee. 2. Resident creditors, having attached a debt due by a citizen of Kentucky to an insolvent debtor of Ohio, have preference in the courts of Kentucky over the assignee of such insolvent debtor, although the assignment was made in Ohio before the attachments were sued out in Kentucky. 3. The principle of comity does not require the courts of one State to recognize and enforce, to the prejudice of its own citizens, assign-ments made by insolvent debtors under the laws of another State; but they will secure justice to domestic creditors, without regard to the foreign law and assignment.
67 Ky. 154Clay v. Nicholas County Court (1868)
CASE 34 — PETITION EQUITY APPEAL FROM NICHOLAS CIRCUIT COURT. CITED— Session Acts, 1865-6, page 64. Session Acts, 1863-4, page 358. Act of February 9, 1864. Session Acts, 1866-7, vol. 2, page 198. 9 B. Mon., 330; Chcancy vs. Hooscr. 13 B. Mon., 33; Slack, Spc., vs. Lex. and M. R. R. Co. CITED— Acts of 1867, vol. 2, page 198. Session Acts, 1864, page 358. Session Acts, 1865 — 6, pages 411, 412.'
67 Ky. 157Blair v. Carlisle (1868)
A sheriff, who collected money by illegal taxation on a void subscription to turnpikes, holds the same as a trust fund for the beuefit of the taxpayers who contributed that fund. (See case next preceding this.)
67 Ky. 158Wells v. Newton (1868)
CASE 36 — PETITION EQUITY APPEAL FROM OHIO CIRCUIT COURT. CITED— 5 /. J. M., 353 ; Luke vs. Marshall, fyc. 11 B. Mon., 32; Lochland's heirs vs. Downing's ex'rs.
67 Ky. 161Ramage v. Clements (1868)
CASE 37 — PETITION EQUITY APPEAL PROM FULTON CIRCUIT COURT. CITED— Civil Code, secs. 55, 14, 421, 579. 1 Duvall, 349 ; Thornton vs. McGrath. 18 B. Mon., 558; Pond vs. Doneghy. 3 Met., 424; Smith vs. Ferguson. MSS. Opn., June, 1857 ; Tribble vs. Chilton. 1 Duvall, 254; Beverly vs. Perkins.
67 Ky. 164Green v. Johnson (1868)
CASE 38-PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. CITED— 'Williams on Executors, page 88, and note v. 14 B. Mon., 554; Loughborough vs. Loughborough. 6 B. Mon., 37 ; Christlcr’s cx’r, <$-c., vs. Meddis, adm’r, 3 Met., 372; Hooker, fyc., vs. Gentry, SfC. 1 Jarman on Wills, 524, 525, 756. 2 Bush, 158; Rawlings’ ex’r, fyc., vs. Landes. CITED— Story’s Equity Juris., sec. 1214. 4 B. Mon., 253; Samuel vs. Samuel, SfC. 7 Dana, 11; Clay <4 Craig vs. Hart. 3 Wheaton, 564; Craig vs. Leslie. 9 B. Mon., 323 ; Burnside’s adm’r vs. Wall.
67 Ky. 168Worley v. Tuggle (1868)
CASE 39 — PETITION EQUITY APPEAL PROM WHITLEY CIRCUIT COURT. CITED— 1 Met., 359-61; Scales vs. Ashbrook. 1 Story's Equity, sec. 134. 9 B. Mon., 210; Wolfe vs. Bate. 3 B. Mon., 513; Ray <Sf Thornton vs. Bank of Kentucky. 4 Paige, 355; Gates vs. Green.
67 Ky. 198McCasland v. Martin (1868)
CASE 40 — PETITION EQUITY APPEAL EROM OLDHAM CIRCUIT COURT. CITED— 2 Marshall, 217; Baird vs. Rowan. 'Williams on Executors, 928, 931. 3 /. ./. Mar., 321; Berry vs. Readington. 2 B. Mon., 462; Pattie vs. Hall.
67 Ky. 204Hubbard v. City of Hickman (1868)
CASE 41 — PETITION EQUITY APPEAL FROM FULTON CIRCUIT COURT. CITED— Act of March 10, 1854, to reduce into one the various acts concerning Town of Hickman, and by-laws of Hickman. 14 B. Mon., 648; Johnson vs. City of Lexington. 2 Met., 226; City of Covington vs. Elliston. Revised Statutes, section 12, Revenue and Taxation, 2 Stanton, 252. 2 Met., 228; City of Covington vs. Powell, SfC.
67 Ky. 207Payne v. Richardson (1868)
1. The owners of slaves, who voluntarily put them in the Federal army as substitutes in 1864, thereby waived their right to compensation for their value, and emancipated them by their own acts. 2. Slaves, voluntarily put in the Federal army in 1864, as substitutes, by their owners, thereby became free and able to contract.
67 Ky. 210Chaudet v. Stone (1868)
CASE 43 — APPRENTICING APPEAL PROM MARSHALL COMMON PLEAS COURT. [Brief missing.] CITED— Revised Statutes, secs. 1, 2, art. 1, chap. 64, 2 Stanton, 136. Revised Statutes, secs. 1, 2, art. 3, chap. 86, 2 Stanton, 304. Revised Statutes, sec. 1, art. 2, chap. 37, 1 Stanton, 502. Revised Statutes, sec. 27, chap. 106, 2 Stanton, 465. Hardin, 442; Davis vs. Ditto. 4 Bibb, 336; Watson vs. Morrison. 4 Bibb, 86; Mcllvoy vs. Speed. 4 Bibb, 510 ; Wallace vs. Usher. 1 Met., 282; Todd vs. Dowd’s heirs. 1 Duvall, 350 ; Thornton vs. McGrath. Civil Code, sec. 543. 2 Duvull, 83; Robinson vs. Redman. 15 B. Mon., 502; Bakers vs. Winfrey. Lit. S. Cases, 220; Parsons vs. Hand, 2 Mon., 151; Bell, SfC., vs. Chapcll. 4 Dana, 336 ; Venable vs. McDonald. 13 B. Mon., 306-11 ; Stevenson vs. Huddleson. 2 Met., 452 ; Harvey vs. Payne. 3 Mar., 254; 6 Dana, 87-8. 4 /. J. Mar., 639 ; 4 Dana, 436. Act of 1793, M. 4- B., 1161. 6 Dana, 283 ; Freeman vs. Strong. 2 Bush, 46; Small vs. Small.
67 Ky. 213Lamb v. Lamb (1868)
in apprenticing negro or mulatto orphan children, it is the duty of the county court under the act of February 16, 1866 (Myers' Supplement, 729), to give the preference to the former owner, if he requests it, provided he is a suitable person.
67 Ky. 215Humphrey v. Burnside (1868)
CASE 45 — PETITION EQUITY APPEAL FROM GARRARD CIRCUIT COURT. CITED— Revised Statutes, 1 Stanton, 236, 465-6. 9 B. Mon., 19; -7 B, Mon., 481. CITED— 7 Dana, 195; 8 B. Mon., 77, 78. 7 B. Mon., 490; Gibson, fyc., vs.- Armstrong, SfC.
67 Ky. 228Lewis v. Watson (1868)
CASE 46 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— 7 B. Mon., 489-90; Gibson vs. Armstrong. Book of Discipline M. E. C., South, pages 43, 53, 107, 262. 8 B, Mon., 78; Hadden, fyc., vs. Chorn, S,-c. 5 Wright, 12; McGinnis vs. Watson. 6 Wright, 512; Sutter vs. Dutch Church. 2 Denio, 540; Miller vs. Goble. 4 Wheaton, 603 ; Commonwealth vs. Green. Revised Statutes, chap. 107, 2 Stanton, 407. Civil Code, secs. 37, 153; 11 Peters, 584. 3 B. Mon., 258 ; Shannon vs. Frost, Syc. 11 B. Mon., 287 ; Berry vs. Rees. 14 B. Mon., 55; Harper vs. Straws.
67 Ky. 234McDaniel v. Watson (1868)
CASE 41 — PETITION EQUITY APPEAL PROM BALLARD CIRCUIT 00 CRT.
67 Ky. 239Speers v. Sewell (1868)
1. The fact that, for a few years before his death, the intestate, who was about eighty years old, had occasional fits of nervous disturbance, which required some guardian care of himself and his business by an affectionate son, is altogether insufficient, against a multitude of established facts, to show that he was not competent to dispose of his estate, by contract and conveyances, rationally, justly, and prudently. 2. The father made an oral contract with his son John, whereby he agreed to convey to John his homestead tract of land, in consideration of John’s living with him, attending to his business, and taking care of him and his wife during their lives. Held — As there was no written memorial of the contract, John could not, by suit, enforce a specific performance, although he had faithfully complied with his part of the contract; but he has a resisting equity not affected by the statute of frauds and perjuries. Por his services, he has an equitable lien on the land, aud cannot justly be required to surrender his rightful possession until he shall have been indemnified. Before decreeing dispossession and distribution of the homestead tract of land, the circuit court ought, through its commissioner, to have ascertained the value of John's services in his care and support of his father and mother, and of attention to his father’s affairs, over and above his (Jolm’s) own maintenance; and, after such finding, John should be protected in the possession until the amount assessed shall have been paid.
67 Ky. 242Baer v. Phœnix Insurance (1868)
1. If the assured procures another insurance on the same property without having it indorsed on the first policy as therein required, the first insurer may avoid his contract and policy. 2. “Fbid," as recited in an insurance policy — that if the same property had been or should be insured by any other company, without an indorsement thereof on this policy, Us guaranty should be void, l¡c. — “void,” in such connection, means voidable, or to be treated as void by the insurer at his own exclusive option. Such violation of the policy by the insured did not render the policy an absolute nullity as to either party. The insurer might, by contract or conduct, waive the right to exoneration and become estopped from enforcing the conventional condition of forfeiture. 3. The assessment of a loss cannot be construed as more than a prelude to the ulterior decision by the insurer to pay or not to pay on full knowledge of all the preliminary facts, &e. The simple assent to the appraisement could not consistently imply a waiver of forfeiture, and especially as the ground of it was not then known to the insurer.
67 Ky. 248Marshall v. Marshall (1868)
CASE 50 — PETITION EQUITY APPEAL EROH LOUISVILLE CHANCERY COURT. CTTED— Act of February 26, 1868, to enlarge the jurisdiction of the Louisville chancery court, Scss. Acts, 24. 1 Duvall, 349 ; Thornton vs. McGrath. 2 Duvall, 508; Woodcock, ¿fe., vs. Bowman. Revised Statutes, chap. 86. Sugdcn on Vendors, p. 419, secs. 9 and 15 to 21. United States Equity Digest, 322, 506 — “Special Performance" and “Rescission." Constitution of Kentucky, sec. 40, art. 4, and sec. 37, art. 2. 2 Peters, 380; Satterlee vs. Matthcioson. 8 Peters, 88; Watson vs. Mercer. 3 McLean, 212 ; Milne vs. Huber. 2 Peters, 413 ; 11 Peters, 420, 439. 1 Bush, 607 ; Pettit's adm'r, fyc., vs. Johnson. CTTED— Act of February 26, 1868, Scss. Acts, p. 24. Revised Statutes, chap. 86; also, Myers' Sup., 368. Constitution of Kentucky, sec. 32, art. 2.
67 Ky. 252Samuels v. Trustees of Poplar Plains (1868)
CASE 51 — PETITION APPEAL FROM FLEMING CIRCUIT COURT. CITED— Scss. Acts, 1859-60, vol. 2,pp. 400, 401. 9 B. Mon., 338-9 ; Chcancy vs. Honscr. 18 B. Mon., 711; Morgan vs. Dudley. 1 Parsons on Contracts, p. 66. Story on Agency, sec. 302. 2 Kent's Com., sec. 41, p. 633. 3 Brod. Sf Bing., 275. 1 Met., 77 — 8; Murry, fyc., vs. Carothers, SfC.
67 Ky. 255John H. Barret & Co. v. City of Henderson (1868)
CA.SE 52-PETITION EQUITY APPEALS PROM HENDERSON CIRCUIT COURT. CITED— Act of Jñn. 29, 1867, Scs. Acts, vol. 1, pages 146, 153. Act of March 9, 1867, Scs. Acts, vol. 2, page 553. 2 AIcl., 355; Cypress Pond D. Co. vs. Hooper. 14 B. Mon., 661; Johnson vs. City of Lexington. 1 Kent, 4(53; Rutherford, 416. Revised Statutes, chap. 83. Act of Jan. 31, 1814, 2 M. $ B., 1371. Act of Feb. 31, 1833, 2 M. B., 1388. Act of Feb. 29, 1836, Loughborough, 599. Act of Jan. 4, 1840, Loughborough, 514. Act of 1845, sec. 2, page 81. 2 B. Mon., 149; Collins vs. City of Louisville. Acts of 1835-6, page 287. Act of Congress June 30, 1864, “An act to increase duties on imports," dgc. Act oj Congress July 1, 1862, “ An act to provide internal revenue," <^-c., secs. 87 to 92. 4 Jacobs' Law Die., “ Merchant." 3 Mon., 335 ; Landsdale vs. Brashcar. 6 J. J. M., 543-4 ; Dyolt vs. Letcher Sf McKee. Act of 1792, Littcll's Laws, page 64. 1 Met., 624; Overficld vs. Sutton; 24 Wendell, 47. 9 B. Mon., 35 ; Ghcancy vs. Hooser. 15 B. Mon., 498 ; City of Covington vs. Southgate. CITED— Ses. Acts, 1867, vol. —, pages 147, 323, 347 ; vol. 2, 330, 553; 1853-4, vol. I, page 375. jRev. Stat., 2 Stanton, 248, 253-4; 1 Stanton, 262. 8 B. Mon., 1; Commonwealth vs. Hays. 7 Dana, 343 ; Johnson vs. Commonwealth. 14 B. Mon., 648; Johnson vs. City of Lexington. 2 Met., 227 ; City of Ci wing ton vs. Powell. 1 Bush, 381; City of Louisville vs. Henning Sp Speed. Bouvier’s Law Die., “ Estate,” “ Personal Property.” ' Mass. Revision, page 75, “ Personal Estate.” 14 i>. Mon., 266; Nazareth L. <§• B. Institution vs.Commonwealth. Acts 1851-2, page 588; 1850 — 51, vol. 2, pages 51, 386. 2 Bush, 596; Trigg vs. Glasgow.
67 Ky. 261Calhoun v. Atchison (1868)
3. A contract made by telegrams is binding on the parties. 2. In the lease of a plantation in Mississippi by parties in Louisville, Kentucky, by telegrams, nothing being said as to the time at which the rental was to be paid for the year 1866, the time of payment of rental is determined and fixed by the laws aDd customs of Mississippi. 'By these laws and customs, as proven in this case, the rental is required to be paid at the beginning of the yearly lease, unless expressly covenanted otherwise. 3. The landlord having leased his land, the lessees falling to cultivate the same, the landlord cultivated a portion thereof. The lessees are entitled to a credit for the pro rala value of that portion which was cultivated by the landloid.
67 Ky. 268Carlisle v. Chambers (1868)
1. Promissory notes made negotiable and payable at a bank in tbe State of Ohio, by the laws of that State, have the legal character of bills of exchange. 2. Promissory notes made negotiable and payable at a bank in Kentucky, if negotiated by a bank chartered by Kentucky, have tbe legal character of bills of exchange; but if not so negotiated, they are simple promissory notes only. 3. When-the law of tbe, place of payment (lex loci solutionis) mulcts negotiable notes bills of exchange, the universal law of comity requires their recognition as such between the original parties. 4. A negotiable note, being a bill of exchange in the State, where it is made and executed, being indorsed in another State where it is by law a simple promissory note, by one citizen to another citizen of such State, such indorsement implied only an assignment of a simple promissory note. The citizens of the latter State should be presumed to have ascribed to the note the character stamped on it by their local law. 5. A promissory note made negotiable and payable at a bank in Ohio, passed in that State to a citizen of Kentucky, tvho afterwards, in Kentucky, indorsed it to another citizen thereof. This note was not negotiated in a Kentucky bank. The indorsement was made, intended, and treated as an assignment of the note. The indorser is responsible only as assignor of the note, and not as an indorser of a bill of exchange. The law of Kentucky regulates the distinct contract of indorsement and the liability of the indorser. 6. As to all who became parties to such bills in Ohio, knowledge of the law of that State will be presumed. Any presumption that the parties understood Ihe true character of the thing contracted about, may be repelled by extraneous proof that they understood it to be a promissory note, the indorsement of which they expected to operate as an assignment. 7. The assignor of a note executed to his assignee a mortgage providing that said assignor and the obligors in said note shall cause the same to be paid at maturity, §e. This mortgage is not a constructive guarantee of payment upon the part of the mortgagor alone; but a security, that if the assignee should, after proceeding with due diligence, fail to obtain payment from the obligors in the note, the mortgage would assure full payment by the mortgagor on his ultimate liability as assignor.
67 Ky. 277Daniel v. McHenry (1868)
CASE 55 — PETITION ORDINARY APPEAL PROM OHIO CIRCUIT COURT. CITED— Taylor's Landlord and Tenant, secs. 439 to 441. 7 Monroe, 616 ; Blight's heirs vs. Tobin. 7 Dana, 389 ; Howell's heirs vs. McCreary. 2 Mon., 413; Busey vs. Hardin. 3 Mar., 619; Patterson vs. Carnea!. 6 Mon., 30 ; Pepper vs. Commonwealth. 2 J. J. M., 68; Davidson vs. McMurtry. 7 J. J. M., 625; Carlile vs. Carlile. 3 Dana, 235; Stover vs. Boswell's heirs. 5Dana, 277; Addison vs. Crow. 7 Dana, 209 ; Adams vs. Keiser. 9 B. Mon., 35; Gearhart vs. Tharp. 12 B. Mon., 231; Isaacs vs. Gearhart. Revised Statutes, title “Execution,” art. 13. 3 Mon., 339 ; Knight vs. Applegate. 2 B. Mon., 454; Shafer vs. Estes. 9 Dana, 348 ; Caleb vs. Field. 5 Mon., 481; 7 J.J. M., 388. 6 J. J. M., 481; 7 Dana, 510. 6B. Mon., 373 ; Hardin, 544. 3 Littell, 134; Hays' heirs vs. Shawan. 2 Mar., 225; Logan vs. McChord’s heirs. 4 Mon., 239 ; Stone, fyc., vs. Ramsey. 1 Bibb, 611; 2 Bibb, 311. 4B. Mon., 299; Pearson vs. Rockhill. 3 B. Mon., 550; Ford vs. Williams. 6 B. Mon., 609; Worland vs. Kimberlin. 7 B. Mon., 357; Brown vs. Foree. 7B. Mon., 369; Kendall vs. Hughes. 7 B. Mon., 361; Brown vs. Smith. 1 Met., 401; Short ‘vs. Tinsley. CITED— Civil Code, sec. 125. 14 B. Mon., 248 ; Petty vs. Malin. 18 B. M.on., 82; Morton vs. Waring's heirs. 3 Met., 434 ; Denton vs. Logan. M. B.’s Statutes, 1463. 1 Mon., 154; Smith vs. Moreman. 3 Mon., 272 ; Terry vs. Blythe. Revised Statutes, sec. 1, 1 Stanton, 482. 5 B. Mon., 238; Halls vs. Oldham. 2 Bibb, 518.
67 Ky. 283Johnson v. Farmers' Bank (1868)
1. In an action on an attachment, bond to recover expenditures in getting-counsel, evidence, and for trouble, &c., all these expenses having- been incurred in defending the cause of action, the plaintiff was not entitled to recover anything. 2. In an action on an attachment bond to recover expenses, &c., such expenses, and such only, as were incurred in defending the attachment, can be recovered. If part of the expenses, &c., were incurred in defending the attachment, that part may be recovered. 3. In an action for a malicious suit and attachment, probable cause not being made out, the plaintiff is entitled to recover damages commensurate with the injury.
67 Ky. 289Union Insurance v. Groom (1868)
CASE 57 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Emerigon on Insurance {Meredith), chap. 12, sec. 1 ,pp. 287, 288. 5 Maulé Sf Sehoyn, 461; Cullen vs. Butler. 1 Duer, 159; Moses vs. Sun Mutual Ins. Co. Hopkins’ Manual of Marine Insurance, 135. 16-B. Mon., 679, 682, 692, 696; Bentley vs. Bustard. Arnould on Insurance, 793, 802, 756. 757, 772, 773, 774, 842, 844. Phillips on Insurance, 3d ed., secs. 1099, 1086, 1089, 1090, 1100,1102, 1105, 1143, 1126. 3 Kent’s Corn., 5th ed., pp. 300, 301, 299. 8 Peters’ S. C. R., 585; Hazard vs. New Eng. Marine Ins. Co. 12 Gray, 603 ; Baker vs. Manufacturers’ Ins. Co. 3 Washington C.. C. R., 159; Coles vs. Mar. Ins. Co. 1 Caines, 234Barnwell vs. Church. 2 Sumner, 197; 9 Eng. Law fy Eg. R., 461. 11 Ohio, 147 ; Perrin vs. Protection Ins. Co. 9 Mo., 411; Citizens’ Ins. Co. vs. Glasgow. 14 Howard’s S. C. R., 351; Geni. Mut. Ins. Co. vs. Sherwood; 4 Bingham, 607. Phillips on Insurance, 5th ed., sec. 1051. 2 Starkie’s R., 323 ; Stuart vs. Crawley. 8 Humphrey’s Tenn. R., 49; Porterfield vs. Brook. 13 B. Mon., 318; Fireman's Ins. Co. vs. Powell. 3 Barnwell Alderson, 389; 5 lb., 101. 5 Bingham's New Cases, 519 ; 43 Penn., 491. 8 Pick., 14; 3 Walls Sp Sargeant, 144; 12 Gray, 603. 2 Parsons on Maritime Law, 252, and note 2. Civil Code, secs. 74, 576, 577, 367, 369. CITED— 4 J. J. M., 245 ; Marshall vs. Dudley. Molloy, 8th ed., 1744, book 2, p. 291. Emerigon on Insurance {Meredith), chap. 1 ,p. 2; chap. 12, 287-8. 2Arnould on Insurance, 793, 1340, 1342. 2 Parsons on Maritime Law, 213, 220, and n. 4. 1 Phillips on Insurance, 3d ed., secs. 626, 627, and sub-sec. 1099. 3 Kent's Com., 299. 11 Ohio, 147; Perrin vs. Protection Ins. Co. 4 Bing., 607; Siordet vs. Hall. 13 B. Mon., 311; Fireman's Ins. Co. vs. Powell. 2 Phillips on Ins., 677, sub-sec. 2147.
67 Ky. 294Bank of Kentucky v. Duncan (1868)
1. Notice of dishonor, to an indorser of a bill of exchange, according to the current of American authorities, if left at his place of abode or business, with any one who may reside there, or be a member of his family, of sufficient age and discretion to take care of it, should be regarded as a delivery to the indorser; or, if it is not shown that any person was then within the premises, the leaving of the notice at such place would be so regarded. 2. A memorandum made by a clerk in a bank was read without objection after his death as evidence in this case, showing that he had delivered a notice of protest at the residence of the indorser, by leaving it with his daughter. It is not decided whether said memorandum ought to have been admitted as evidence or not, if it had been objected to.
67 Ky. 299Atkinson v. Burton (1868)
1. Commission merchants are required to sell property consigned to them for sale, within a reasonable time after its receipt, unless otherwise instructed. 2. Property consigned to commission merchants for sale is accompanied with a general direction to sell, when no other instructions are given. 3. Commission merchants in New York, for failing to sell tobacco consigned to them for sale within a reasonable time after its receipt, are liable for its value. Having held the tobacco much longer than a reasonable time for its sale, and until it had depreciated in price, they are held responsible for its value as if converted or appropriated to their use, at the expiration of five months after its receipt, which, in this case, is held to have been a reasonable time for selling.
67 Ky. 303Fletcher v. Leight (1868)
1. “This day came Wm. N. Peterson, who produced a certificate purporting his election as sheriff of Marshall county, and -was thereupon duly sworn into office-, and with R. Fletcher, P. Palmer, R. F. Stone, S. W. Harrell, James Thompson, W. B. Ely, H. Johnson, and Samuel Mathis, as his sureties, executed covenant as required by law.” The evidence shows that Ely went into court to sign the necessary bonds of Peterson, and did sign the county levy and revenue bonds; and as these were the only ones presented to him, he left, supposing he had Signed all the bonds necessary to be executed by the sheriff. As “ TP. B. Ely” did not sign the general bond sued on, and as there is no county court order approving this bond without his name, it is held not obligatory on the other sureties. 2. The county court being a court of record, can only speak by its record, especially in the absence of any issue by the pleadings of mistake or fraud. 3. The approval by the county court of an officer’s securities must appear of record. However numerous or solvent t.be proposed securities may be, this does not make the proposed bond official nor obligatory until the court has passed its judgment of approval; indeed, until this, it is not delivered to the Commonwealth, nor can be. It is this approval, by the tribunal designated by law, which completes its execution and delivery, and makes it obligatory. 4. When the county court approves the proposed names and individuals as securities in a bond, and directs its clerk to prepare the bond, he has no more authority to witness and accept it until all the named securities sign it, than he-has to accept it without the principal’s signature. If he may waive the signature of one security, he may waive more, until all are waived. B. When the court has designated certain persons and approved them as sureties, no alteration can be made by leaving off a name or substituting another therefor. The bond must be prepared and executed in conformity to the judgment of approval, else it is not the approved and accepted bond by the court; and every alteration by the clerk, either in omitting a designated party or substituting another, wholly unauthorized, and his attestation to such a bond of no validity. 6. When the principal has proposed certain names as his sureties, and these have been approved by the court, each of the sureties as he signs has both the legal and moral' right to expect and rely upon the officers to see that each approved party shall sign it^and not regard it as an executed and delivered obligation until so perfected. 1. The securities who did sign the bond were under neither a legal nor moral duty to see that all the approved parties had signed it, nor to see that the sheriff should execute another bond. They had a right to rely upon the legal discharge of official duty by those whose duty it was to see a proper bond executed, and to dismiss all oversight over it. 8. It is the duty of the court and county attorney to keep a watchful vigilance over official bonds; and the sheriff, in this ease, should have been required to execute another bond, and on failure, his office should have been declared vacant. 9. There being no record evidence that the bond as executed was ever approved by the court, nor that the securities who did sign it were approved, but the only order shown negativing this, the decision of the circuit court upon the issue of no record, and the peremptory instruction to the jury to find for the plaintiffs, on the special plea of non est factum, were both erroneous. 10. The bond itself is no record until sanctioned and accepted by the court, or executed according to its order of approval, which action of the court can only be established by its own records.
67 Ky. 310Speak v. Mattingly (1868)
CASE 61 — PETITION APPEAL PROM NELSON OIRCUIT COURT. CITED— Civil Code, secs. 421, 445, 579, 581. 1 Bush, 311 ; Salter vs. Dunn, Sgc. ,2 Bush, 439 ; Cromwell’s heirs vs. Mason’s heirs. 18 B. Mon., 775; McLean vs. Nixon. 8 B. Mon., 367; Singleton vs. Singleton. 14 B. Mon., 213 ; Bush vs Madena’s heirs. CITED— 18 B. Mon., 670; Ncwland vs. Gentry, ¿fe. 18 B. Mon., 775; McLean vs. Nixon. 5 B. Mori362; Hanna vs. Spoils’ heirs. 5 Litlell, 77; Pope, Remaster. 14 B. Mon., 213; Bush vs. Madena’s heirs. 4 Mon., 142; Blight, fyc., vs., McEroy, SfC. 1Met., 461; Dawson vs. Hays. 1 Dana, 201; Gore vs. Stevens, <SfC. 5 J. J. M., 215 ; Smart vs. Easley. 3 J. J. M., 363; Smart vs. Baugh. 14 B. Mon., 163 ; Tomlin vs. Joyne. 14 B. Mon., 642; Wright vs. Arnold,. 8 B. Mon., 542; Davis vs. Tingle, fyc. 1 Marsh., 562; Young vs. Young. 2 Marsh., 464; Hendrix’s heirs vs. Clay. 3 J. J. M., 492 ; Brewer vs. Bowman. 1 J. J. M., 84; Fishback, SfC., vs. Woodford. 3 Dana, 1; Higgins vs. Conner. 1 Met., 609 ; Mitchell vs. Berry. 1 Bush, 318; Salter vs. Dunn. 12 B. Mon., 591 ; Basye vs. Beard’s ex’r. Civil Code, secs. 579, 580, 581. 5 J. J. M., 610; 3 J. J. M., 625; 2 Bibb, 246. 4 Mon., 157; Baugh vs. Ramsey.
67 Ky. 316Mattingly v. Speak (1867)
1. A father intending to convey land to his married daughter and the heirs of her body, through mistake conveyed it to her husband and his heira. This deed is reformed after the death of both grantor and grantee, upon clear and satisfactory evidence. 2. To authorize the chancellor to annul or modify the terms of a conveyance, or other written instrument, on the ground of mistake as to its contents or legal effect when executed, such mistake must be established, and must not be a mere inference, from the weight of evidence.
67 Ky. 317Thomas v. Bertram (1868)
CASE 63 — PETITION EQUITY APPEAL PROM LEWIS CIRCUIT COURT. CITED— 2 Hilliard on Real Property, p. 10 CITED— 2 Met., 100 ; Hall vs. McLeod,. 2 Greenlcaf s Ev., sec. 058. 15 B. Mon., 99; Bowman vs. Wiclcliffe.
67 Ky. 321Johnson v. Auditor (1868)
CASE 1 — MANDAMUS APPEAL PROM PRANKLIN CIRCUIT COURT. CITED— Act of February 17, 1858, 1 Stanton, 537. Act of February 24, 1865, Myers’ Sup., 155-6. Myers’1 Supplement, 381, 123, 420. CITED— Revised Statutes, 1 Stanton, 537; Myers’ Sup., 155-6.
67 Ky. 323Morgan v. Vance (1868)
CASE 2 — PETITION ORDINARY APPEAL PROM FAYETTE OIROÚIT COURT. CITED— 1 Met., 565; Tipton vs. Chambers. Constitution of Kentucky, sec. 1, article 8, sec. 6, article 6; 1 Angelí 4" Ames on Corporations, secs. 30, 37. Wilcock on Corporations, 12 Law Library, sec. 598, SfC. Scss. Acts 1867-8, vol. 1 ,pp. 306, 582. 2 Kent's Com., s.p. 295, sec. 13. 9 Johnson's R., 135; McKinstry vs. Tannqr. 19 Pickering, 436; Sprague vs. Bailey. CITED— 3 Met., 321; Revill vs. Pettit. 1 Met., 565; Tipton vs. Chambers. 1 Met., 395; Brandéis vs. Stewart. 5 Dana, 596; Williams vs. Wilson. Act of February 18,1868, Sess. Acts, vol. 1, 582; lb., 806. Constitution of Ky., secs. 1, 3, 7, 11, 20, 15, article 8, sec. 1, article 6. Revised Statutes, sec. 13, chapter 71,2 Stanton, 192; also 1 Stanton, sec. 1, 186, 192, 246, 253, 307. 2 Met.., 3; Megoioan vs. Commonwealth. 2 Swan (Tenn.), 87 ; Pearce vs. Hawkins. 4 Mel. R., 189; Thomas vs. Owen.
67 Ky. 331McBride v. Commonwealth (1868)
CASE 3 — INDICTMENT APPEAL PROM HENDERSON CIRCUIT COURT. CITED— Criminal Code, sec. 349.
67 Ky. 334Petitt & Co. v. First National Bank (1868)
CASE 4- PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. OITED— Civil Code, sec. 257. 3 Dana, 135; Brummel vs. Stockton. 1 Duvall, 28; Robbins vs. Oldham. 1 Parsons on Contracts, 290, 606; 3 lb., 487, 342-4. 1 Peters, 475; Conrad vs. Atlantic Ins. Co. Angelí on Carriers, sec. 508. 2 Head (Term R.), 187 ; Woodruff vs. Nash, and Chat. R. R. 10 Smead Marsh (Miss. R.); Bonner vs. Marsh. 1Term R., 205; Caldwell vs. Ball. 4 Pickering (Mass. R.), 205; Stone vs. Swift. 1 Campbell, 369; Waring vs. Cox. 7 East., 249; Rushforlh vs. Hadfield. 3 Term R., 119; Kimball vs. Craig. 1 Smith's Leading Cases, 752; Lickbarrow vs. Mason. 2 English, 197; Clark vs. Chipman. 17 Mass., 210; Lainfair vs. Sumner. Story on Conflict of Laws, 76, 238. CITED— 1 Parsons on Shipping, pages 134, 138, 140. 1 Smith's Leading Cases, 751; Lickbarrow vs. Mason. Smith's Mercantile Law, pages 378-80, and notes. 3 Kent, side page 724, note a. 1 Peters, 637 ; Conrad vs. Atlanta Ins. Co. 2 Kent, side page 549, note a; Ib.,page 578. 12 Pickering 300-1; Allen vs. Williams. 2 Wash. C. C., 283 — 89; Walter vs. Ross. 8 Pick., 101; Low vs. DeWolf. Civil Code, secs. 257, 675. Story on Bailments, sec. 297. 1 Metcalfe, 405; Short vs. Tinsley. 6 Dana, 183; Daniel vs. Morrison.
67 Ky. 339Mundy v. Mason (1868)
CASE 5 — PETITION EQUITY APPEAL FROM OWEN CIRCUIT COURT.
67 Ky. 342Mundy v. Robinson (1868)
CASE 6 — PETITION ORDINARY APPEAL PROM GALLATIN CIRCUIT COURT. CITED— 2 Duvall, 189; Hughes vs. Todd. 2 Duvall, 193; Corbin vs. Marsh. CITED— 1 Bibb, 536 ; 5 Monroe, 360-1; 2 Duvall, 190-1.
67 Ky. 345Bowen v. Emmerson (1868)
A garnishee, being called on in plaintiff’s petition to answer and say what amount he is indebted to his co-defendant, against whom the plaintiff had a return of “no property," the garnishee being served with a summons, and failing to answer, the petition is taken for confessed; and, on his allegation of indebtedness in a specified sum, the plaintiff is entitled to judgment for that amount against the garnishee. (Civil Code, secs. 248, 474.) CITED— 3 Met., 171; Smith, fyc., vs. Gower. Civil Code, secs. 248, 474.
67 Ky. 347Ransdell v. Threlkeld's adm'r (1868)
1. When an administrator fails to make a settlement, as required by law, in a suit against him by the heirs for a settlement and distribution, ho is not entitled to a judgment for costs against them. 2. In a suit against them to subject assets descended to several heirs, it was error to render a joint judgment against them. The circuit court should have ascertained the amount each heir had received by descent, and a several judgment should have been rendered against each one for an amount not exceeding the amount so received, and not exceeding the amount to which the plaintiff was entitled. On the trial of this issue the heirs are personally responsible for the costs, when judgment is rendered against them.
67 Ky. 349Dyas v. Lindsey (1868)
CASE 9 — PETITION ORDINARY APPEAL FROM GRANT CIRCUIT COURT. CITED— 14 B. Mon., 647. 8 Ohio, 215 ; Sturgus vs. Burton. 2 Met., 148-9 ; Chile vs. Drake. Civil Code, secs. 107, 110. CITED— 14 B. Mon., 647.
67 Ky. 353Long v. Gaines (1868)
CASE 10 — PETITION ORDINARY APPEAL FROM HENRY CIRCUIT COURT. CITED— Civil Code, secs. 75, 66, 73. 2 Met., 245; Boaz vs. Nail. CITED— Civil Code, secs. 73, 66. 2 Met., 340; Slone vs. Slone. 3 Met., 28; Dodd vs. Comb.
67 Ky. 356McBee v. Myers (1868)
¡CASE 11 — PETITION EQUITY APPEAL FROM GRANT CIRCUIT COURT. CITED— 2 Metcalfe, 476 ; Wheeler’s ex’r vs. Wheeler. CITED— Civil Code, sec. 474. Coke upon Littleton, 265; Bacon’s Abridgment, vol. 2, p. 4. 2 Met., 474; Wheeler’s ex’r vs. Wheeler. 2 Duvall, 134 ; Lee vs. Lee.
67 Ky. 360Crutcher v. Hord (1868)
1. At a decretal sale in Louisville, in 1862, of real estate belonging to parties then resident in the State of Mississippi, the purchaser, by announcing to competing bidders that he would purchase for the owner’s benefit, prevented others from bidding, and was thereby enabled to bid it off himself at much less than its value, and much less than it would have then sold for. In 1864, the purchaser sold it for more than double the amount paid for it by him. After the cessation of hostilities, the original owners brought suit to recover the property from the sub-purchaser, and also against the decretal purchaser, if they could not recover the property itself, to compel him to pay over the amount received by him, deducting the purchase price, and for an account of rents and interest. Held — That the sub-vendee was • entitled to hold as an innocent purchaser, but that the conduct of the decretal purchaser raised an implied trust, and he was responsible for the profits made by his purchase and sale, and also for rents and interest. (Estell vs. Estell, 3 Bibb, 179; Partlow vs. Lane, 3 B. Hon., 426.) 2. Alien enemies may sustain the relation of debtor and creditor. If the debt existed prior to the war, only the right of action is suspended during hostilities, and revives with peace, unless the sovereign has intervened by way of confiscation; and even during the war, by the permit of the sovereign, this relation may be created, and it may be created by necessity without such license. 3. An alien enemy may be the devisee of real estate or the distributee or legatee of personalty; and if the government takes no proceedings of confiscation or sequestration, it will be no defense to his claim when such relation has ceased by the termination of the war. (Fair-fax vs. Hunter, 7 Crunch, 626; Attorney General vs. Wheeden, ¿¡c., Park's Rep., 267; Beadwell vs.t Weeks, 1 Johns. Ch'y R., 206.) 4. In a proceeding to subject real estate situated in Kentucky belonging to enemies resident in the Confederate States during the war, the creditor being a citizen of, and the land situated in, Kentucky, so far from its sale being interdicted, the rights of the legal creditor are protected even against the government on a proceeding to confiscate, by section 47- of the act of Congress of March 3, 1863. (2 Brightly's Digest, 1238.) 5. Any one not under legal disabilities had the right to purchase the real estate situated in Kentucky of debtors who were resident in the Confederate States, at decretal sales thereof during the war, either for his own or for the debtor’s benefit, subject, as was all the property .of the rebel debtor, to confiscation by the government; but not subject to be defeated in this or any other right by any one except the sovereign. 6. Legal-rights and responsibilities might spring out of the conduct of the purchaser of such real estate, which, however, would remain suspended during hostilities; but on the restoration of peace, the debtor's right of action would revive, and he could enforce any legal right which existed anterior to, or was created during, the war.
67 Ky. 370Gardner v. Craddock (1868)
In a petition to sell the lands of heirs, any one of whom is an infant, or of unsound mind, a married woman, or resides out of the State, under article 1, chapter 86, of the Revised Statutes, the authority of the court to adjudge the sale depends on the existence of the particular facts named in the statute. It is necessary to allege, and prove, that the share of each heir, is not of greater value than one hundred dollars. Eor the want of such proof in this case, the judgment of sale is reversed on the appeal of one of the heirs, a married defendant, to the petition.
67 Ky. 372Groom's adm'r v. Pickett (1868)
CASE 14 — PETITION ORDINARY APPEAL PROM CLINTON CIRCUIT COURT. CITED— Revised Statutes, secs. 3, 4, art. 18, chap. 36, 1 Stanton, 493. Civil Code, secs. 94, 587; also 1 Stant., 177. Session Acts, 1853-4, pp. 24 to 56. 3 Met., 324-5-6. Act of Feb. 12, 1858, 2 Stanton, 513. 2 Met., 500-1-2. ' 1 Bush, 384; Bank of Ky. vs. Harrison, fyc.
67 Ky. 375Bartly v. Fraine (1868)
1. On sufficient notice and motion, the sureties in a sheriff’s official bond moved the county court for additional security, “in consequence of official default.” ' After hearing the parties the court required additional'security in a prescribed time, and the sheriff failing to give it, was, by order of the court, removed from office, and a successor was appointed and qualified. The judgment of removal is affirmed. 2. County courts have constitutional power to remove sheriffs from office for failing to give new bonds at the time prescribed by the court, in a proceeding by notice and motion of sureties as authorized by law. (State Constitution, sec. 9, art. 6, and sec. 19, art. 8, and sec. 2, chap. 97; Revised Statutes, 2 Stanton, 396-7.) 3. The discretionary power conceded by section 9, article 6, and section 19, article 8, of the Constitution, is plenary and unqualified, and thus the organic law itself, considered in all its provisions on this subject, is consistent with the power to remove a sheriff for the security of his sureties, even when the cause for removal may be an impeachable or indictable matter, and more especially when it is not, as in cases of some unimpeachable delinquency or apprehended insolvency, not indictable. 4. Section 2, chapter 97, of the Revised Statutes (2 Stanton, 396-7), authorizing county courts to remove sheriffs from office for failing to give a new bond on the day prescribed by the court, is constitutional. 5. The removal of officers on conviction by indictment or impeachment, as provided in section 36, article 4, and in article 5, of the Constitution, is for the public benefit; the removals authorized by section 19, article 8, are for the benefit of sureties. In the case of Lowe vs. Commonwealth (3 Met., 237), the jailer was removed by the county court for an act for which he might have been removed by indictment or impeachment, and the removal was for the public benefit, and not for the relief of sureties; hence the removal in that case was held to be unauthorized by the Constitution.
67 Ky. 379Pryor v. Smith (1868)
1. Husband and wife conveyed thirty-two acres of her land in part pay for three hundred and forty acres which he purchased, and which was conveyed to the husband. Before the wife agreed to join in the conveyance of her land, her husband agreed, verbally, that he would indemnify her in the three hundred and forty acres, and she was also advised that he would hold the land conveyed to him in trust for her to the extent of the price of her thirty-two acres. Ileld by the court — That, as the deeds contained no reservation in her favor, one of them divested her of her title, and the other vested in her husband the land he purchased in part with it. These transactions constituted a complete conversion and reduction of her estate in the land by her husband to his possession, and generally when this is done a court of equity will not interpose to provide for the wife to the exclusion of the claims of creditors, and also that no trust resulted in favor of the wife. ( Whitesides vs. Dorris and, wife, 7 Dana, 108; Martin vs. Trigg, 8 B. Mon., 529; Latimer vs. Glenn, 2 Bash, 543; Revised. Statutes, section 22, chapter 80; 2 Stanton, 230.) 2. The homestead exemption, provided for by act of February 10, 1866 (Myers' Sup., 714), does not apply to debts or liabilities created or incurred before the 1st day of June, 1866. It does not apply to a note executed after that date, as a renewal of a note given before that date. The renewal of a note is not a satisfaction of a debt, but only a change of the evidence of it. (Lowry vs. Fisher, 2 Bush, 70.) ) 3. An order appointing a commissioner to ascertain facts in reference to alleged usury in controversy in the suit, is not such a final judgment as will authorize an appeal.
67 Ky. 383Calloway v. Commonwealth (1868)
CASE IT — MOTION APPEAR EROU ERANKLIN CIRCUIT COURT. CITED— Revised Statutes, 2 Stanton, 261, 262. Act of January 24, 1865, Myers’ Sup., 407. John Rodman, Attorney General, For Appellee, CITED— 3 Met., 238 ; Lowe vs. Commonwealth. 1 Met., 139 ; Stokes vs. Kirkpatrick. Rev. Stat., 2 Stanton, 261, 262, 263, 268. Act of March 5, 1867; also Ses. Acts, 1867-8, vol. 1, page 39. Act of Feb. 17, 1S66, abolishing June term Franklin circuit court, except for trial of equity causes. 9 B. Mon., 131 ; Commonwealth vs. Davis.
67 Ky. 388Cason v. Wallace (1868)
CASE 18 — PETITION ORDINARY APPEAL EH0M GRANT CIRCUIT COURT. ■ CITED— 3 Met., 285; Muhling vs. Sattler, &,-c. 2 Parsons on Notes and Bills, p. 124, n. p. Sloj-y on Promissory Notes, sec. 467. CITED— Myers’ Supplement, p. 741. 3 Met., 285 ; Muhling vs. Sattler. MSS. Opin., June, 1858; Taylor vs. Taylor. Revised Statutes, 1 Stanton, 267. 3 Mon., 252; Roberts vs. Finnell. 2 Marshall, 138; Morton vs. Fletcher. 2 Met., 228; 1 Bush, 381. 1 Mar., 24; Keith vs. Patton.
67 Ky. 390Hammock v. Barnes (1868)
CASE 19 — MANDAMUS APPEAL PROM CALDWELL CIRCUIT COURT: CITED— Revised Statutes, chap. 32, art. 3, sec. 2; also sub-sec. 4. 1 Stanton, 438, sec. 7, p. 439. Acts 1863-4, vol. 2,p. 231, sec. 19; also p. 229, sec. 13. 1 Met., 540; Batman vs. Megowan. 1 Duvall, 37, 40; Surman vs. Menton. Stanton's Code, p. 107 ; Myers' Code, pp. 37, 45, and note 144. CITED— 2 Sess. Acts, 1853-4,/». 231. Revised Statutes, chap. 32, art. 5; 1 Stanton, 436-39.
67 Ky. 392Middleton v. Caldwell (1868)
1. A sheriff is not bound, in his official capacity, to receive and collect taxes in arrear due to his predecessor, unless such predecessor died, resigned, or wns removed from office; and as the sheriff was not bound to receive and collect such taxes, his sureties are not liable for them on his official bond. (Edwards, ez'r, vs. Taylor, ¿¡c., 4 Bibb, 353; Revised Statutes, sec. 16, art. 9, chap. 83, 2 Stanton, 265.) 2. It is the duty of the sheriff and his deputies to receive and eoflect all officers’ fees listed with him or any of his deputies, dne and payable in his county, during his term of office, and to account for and pay over the same to the persons entitled thereto, at the time and in the manner prescribed by law; and his sureties are liable on his official bond for such officers’ fees. (Revised Statutes, sec. 11, art. 1, chap. 91, 2 Stanton, 343.)
67 Ky. 395Steamboat Hyatt v. Reitz (1868)
CASE 21 — PETITION EQUITY APPEAL FROM LIVINSSTON CIRCUIT COURT. CITED- Civil Code, sec. 264. 4 Wallace, 556; The Hiñe vs. Trevor. 4 Wallace, .411; The Moses Taylor. Judiciary Act of Congress of 1789. 18 B. Mon., 261; Hughey, fyc., vs. Sidwell’s heirs. CITED— 3 Mason, 91; Willard vs. Dorr. 4 Mason’s C. R., 380; Plummer vs. Well. 11 Peters ; Orleans vs. Phoebus. 20 Howard, 168; Grant vs. Poillon. 20 Howard, 401 ; People’s Ferry, Sfc., vs. Beers. 22 Howard, 130; Roach, fyc., vs. Steamer Capital. 19 Howard, 31 ; Thomas, fyc., vs. Osborn. 19 Howard, 91 ; Vandcwater vs. Mills. 23 Howard, 215; Philadelphia, Spc.
67 Ky. 398Commonwealth ex rel. Johnson v. Turley (1868)
CASE 22 — PETITION EQUITY APPEALS FROM SALLATIX CIRCUIT COURT. CITED— Revised Statutes, 2 Stanton, sec. 2,p.2\ lsí lb., sec. 25, p. 507 ; 8 Dana, 73 ; Smith vs. Lampion and wife. 2 B. Mon., 261; Montjoy and wife vs. Lashbrook, fyc. 8 Dana, 8.; Nixon’s heirs vs. Nixon’s adm’r. CITED— 1 Dana, 398; Taylor vs. Knox’s ex’r. Littell’s Select Cases, 475; Webb vs. Coon. 2 Litiell, 344; Qtiiiin vs. Stockton. 14 B. Mon., 477 ; Crow’s adm’r vs. Crow.
67 Ky. 401Brown v. Burdett (1868)
CASE 23 — PETITION APPEAL PROM GARRARD CIRCUIT COURT. CITED— 2 J. J. M., 35 ; Wolford vs. Phillips. 6 Mon., Ill; Webber vs. Stith. MSS. Opn., April, 1867 ; Owsley vs. Cook. 1 Bush, 249; Skillman vs. Hamilton. 3 Dana, 219 ; DeWolfe, <fc., vs. MullctCs adm’r. 18 B. Mon., 665; Watson vs. Gabby. Revised Statutes, 2 Stanton, 513-14-15. Civil Code, sec. 714. CITED— 1 Greenleaf’s Ev., 93, 94, 376. Civil Code, secs. 669, 670, 393 ; 8 Dana, 199.
67 Ky. 403Commonwealth ex rel. Young v. Peters (1868)
CASE 24 — PETITION ORDINARY APPEAL PROM WOODPORD CIRCUIT COURT. CITED— 14 B. Mon., 29; Harris vs. Teal. 1 Metcalfe, 411; Lane vs. Casey. 3 Metcalfe, 87; Fenwick vs. Phillips. Revised Statutes, section 2, article 4, 'chapter 20. Civil Code, section 33, act of Feb., 1856, 1 Stanton, 259. CITED— 14 B. Mon., 30, 31; Commonwealth, for use of Harris, vs. Teal. 17 B. Mon., 334; Masterson vs. Hagan. 2 Met., 128; Lytle vs. Lytle.
67 Ky. 405Johnson v. Belt (1868)
!l. The right of a creditor of a decedent to sue his heirs or devisees in equity, is expressly conferred by the Revised Statutes. (Nee. 10, chap. 40.) 2. The provision of section 4H3 of the Civil Code, which requires a demand, of the debt claimed, before an action shall be brought against a personal representative, is restricted in its application to actions against personal representatives. A failure to make, such demand, is not an available ground for dismissing an action against the heirs or dev. isees .of a decedent.
67 Ky. 406Mason v. Trustees of Lancaster (1868)
1. “The trustees shall have the right to tax, and right to license all taverns within the limits of said town, granting to, withholding from the same, as may be deemed expedient by said trustees, the privilege of selling by retail, wines, brandies, wbisky, rum, and other spiiituous liquors and intoxicating drinks, and to fix the tax therefor in a, sum not exceeding two hundred dollars on each per annum,." This act is held to be constitutional. 2. Tavern-keepers may be required to pay a license to towns by authority of legislative enactment, notwithstanding they have paid both the United States and State license. 3. Town authorities, being so authorized by law, may refuse to grant a license to sell spirituous liquors to a tavern-keeper therein, and without such license, he will not be authorized to sell the same, bv paying for and obtaining a license from the United States, and also from the State. 4. Town authorities may constitutionally be authorized by law to levy taxes and impose licenses for revenue, for municipal purposes.
67 Ky. 409Corley's ex'r v. Evans (1868)
1. A document styled a bill of exceptions, professing to state the facts, which may have been actually exhibited in the circuit court, and ' which does not appear to have been either signed or filed in court, cannot be judicially noticed or considered by the Court of Appeals. 2. Time being allowed by the circuit court to complete a bill of exceptions in vacation, the presumption is, that it was signed extra-judicially, out of court, and is, therefore, according to the Code, unauthorized and void. 3. In the absence of testimony to the contrary, the Court of Appeals must presume, that the verdict was authorized by the proof, and the judgment of the circuit court, consequently, right.
67 Ky. 411Farmers' Bank v. Johnson (1868)
CASE 28-PETITION EQUITY APPEAL PROM SCOTT CIRCUIT COURT. CITED— 2 B. Mon., 354; Moor Taylor vs. Story. 3 Met., 31, 32 ; Robinson vs. Bright’s ex’r. Revised Statutes, 1 Stanton, 150; sec. 20, Constitution.
67 Ky. 413Offut's ex'x v. Bradford (1868)
CASE 20 — INJUNCTION APPEAL prom SCOTT CIRCUIT COURT. CITED— Revised Statutes, sec. 40, chap. 37, 1 Stanton, 513. 3 J. J. M., 302; Judah vs. Chiles. Pr. Dec., 282; Lee vs. Gullion. 2 J. J. M., 444; Ward vs. Davidson. 2 Dana, 422 ; 3 J. J. M., 424. 8 Dana, 12; Story vs. Hawkins. [Brief not in records.]
67 Ky. 415Trumbo v. Lockridge (1868)
A purchaser, who has received a conveyance, cannot resist the payment of a balance of the purchase money on the ground of defects in the title, unless the vendor is insolvent, and the warranty of title or covenant of seizin has been broken so as to entitle the vendee to damages. Such damages, on the application of the vendee, may be set-off by the chancellor against unpaid purchase money. (Simpson, ftc., vs. Hawkins, $c., 1 Dana, 303.)
67 Ky. 418Hamblin v. McCallister (1868)
CASE 31 — PETITION ORDINARY APPEAL FROM SHELBY CIRCUIT COURT. CITED— 14 B. Mon., 8; Nichols vs. McDowell. Civil Code, sec. 74. CITED— 14 B. Mon., 8; Nichols vs. McDowell.
67 Ky. 420Hicks & Gill v. Doty (1868)
A contract to pay a stipulated sum of money for tbe rent of a bouse and lot, and also to make certain improvements therein specified, is not assignable in law so as to vest the assignee with a right to sue in his own name alone. The assignor is a necessary party plaintiff of defendant. (See. 6, chap. 22, Revised Statutes, 1 Stanton, 268; Marcum, ¿fe., vs. Hereford, 8 Dana, 1.) The assignee being the equitable holder, the assignor still holding the legal title, each is an essential party. (Gill vs. Johnson, 1 Met., 449; Lytle vs. Lytle, 2 Met., 121.)
67 Ky. 423Thompson v. Marsh (1868)
CASE 33 — ATTACHMENT FOR RENT APPEAL PROM BOURBON CIRCUIT COURT. CITED— Revised Statutes, 2 Stanton, 92. Chitty’s Pleadings, 405. 13 Johnson’s N. I. R., 428 ; Bigelow vs. Johnson. 2 Bibb, 225; Bess vs. Shepherd. 4 B. Mon.,.373; Stuart vs. Smith.- Archbold’s Nisi Prius, 49th Law Library, 254. 2 Bush, 176; Shepherd vs. Thompson. CITED— Revised Statutes, secs. 6, 7, chap. 56, 2 Stanton, 91, 92.
67 Ky. 426Goldburg v. Drabelle (1868)
CASE 34 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— 4 Paige, 23 ; Wakeman vs. Grover. 23 Pickering, 508; Bryant vs. Russell. Rev. Stat. — “Husband and Wife” — art. 4, sec. 17.
67 Ky. 427Henry v. Commonwealth (1868)
1. An order of the court abating an indictment on motion of the Attorney for the Commonwealth, although superinduced by the mistaken belief that the defendant was dead, was a termination of the prosecution on said indictment, and it could not be reinstated on the docket as a pending indictment against such defendant. This indictment having been reinstated on the docket, there was no prosecution pending against the defendant. Being arrested, the defendant was not legally in custody, charged with a public offense; and having given a bail bond, his sureties are not liable for his non-appearance. 2. It is essential to the validity of a recognizance or bail bond that it may be made to appear that the defendant was, when recognized or bailed, legally in custody, charged with a public offense, and was discharged therefrom by reason of the giving of the bond or recognizance, and that it can be ascertained from the bond or recognizance that the bail undertook that the defendant should appear before a magistrate for an examination of the charge, or before a court for the trial thereof. (Criminal Code, sec. 80.) 3. A recognizance or bail bond is defective for the reason that it cannot be ascertained from it, that the bail undertook, that the defendant should either appear before a magistrate for examination of any charge, or before the court for trial thereon.
67 Ky. 430Bates v. Foree (1868)
CASE 36 — BOLE ON RULE AGAINST THE LATE CLERIC OP THE OWEN CIRCUIT COURT.
67 Ky. 433Robinson v. Johnson (1868)
“In regard to the real estate placed in the hands of my executor and trustees for the benefit of my emancipated negroes, I direct that none of said negroes shall have a right to sell their interest in the same; and upon any one attempting such sale, or upon any one or more moving oif, the whole property shall remain for the use of the others; nor shall said property be sold by said trustees unless it should become unlawful for colored free persons to remain in the State, when said trustees shall be' authorized to sell the property and apply the proceeds towards establishing them in a new home elsewhere.” Held— That the land referred to, in the above clause of the will, was designed for community property for all the beneficiaries, so long as they could lawfully remain thereon, without any power of sale in them, and a . forfeiture for any attempted sale, and also that the circuit court rightfully dismissed a petition for the sale and partition of the land.
67 Ky. 435Cravens v. Cravens (1868)
CASE 38 — PETITION EOS DIVORCE APPEAL PROM PAYETTE CIRCUIT COURT. CITED— Civil Code, secs. 15, 876 ; 15 B. Mon., 48. 4 Dana, 307 ; Boggess vs. Boggess. 2 Kent's Corn., 146; 1 Duvall, 197; Lee vs. Lee. 8 B. Mon., 120; Griffin vs. Griffin. MSS. Opin., Sept., 1857; Taylor vs. Taylor. 2 Met., 414; 3 Met., 303. 4 Paige, 643 ; Germond vs. Germond. 3 Paige, 267; Lawrence vs. Lawrence. 1Duvall, 198; Quisenbury vs. Quisenbury.. 4 Littell, 205; Butler vs. Butler. Rev. Stat., sec. 6, art. 3, chap. 47, and sec. 32, chap. 25. 3 Edw. Gliy R., 317 ; Worden vs. Worden. 1 Harr. Gliy R., 144; Boyd vs. Boyd. 4 Dana, 30; Lockridge vs. Lockridge. CITED— Revised Statutes, secs. 6, 7, art. 3, chap. 47. 5 B. Mon., 47 ; 3. Met., 32; Bondurant vs. Apperson. Civil Code, sec. 15; 3 Blackstone, 398. 1 Bouvier, 525; 2 Ib.> 385, 659, 678, 679. Barton's Suit in Equity, 148. 4 Met., 236; Applegate vs. Applegate. 4 Met., 109; Hanson vs. Bowyer. 17 B. Mon., 144; Overby vs. Gay. Bishop on Marriage and Divorce, secs. 603, 604, 612, 608, 569, 581, 590. 4 Paige, 645; 3 Paige, 267; 4 Littell, 250. 1 Duvall, 197; 4 Met., 413; 3 Met., 303. 2 Littell, 337; 4 Littell, 252; 4 Dana, 307. 8 B. Mon., 50, 120, 178; 4 Eng. {Ark. R.), 507. 17 Serg., 139. 5 Halstead, N. J., 355 ; Bray vs. Bray. 4 Sanford, N. Y., 373 ; Lyride vs. Lynde. 1 Barb., N. Y., 241; North-vs. North. 3 Barb., N. Y., 628 ; Williams vs. Williams. 2 Md. Cliy Dec., 335, 341, 393.
67 Ky. 438Hunter v. Duvall (1868)
A married woman purchased goods and gave her own notes for the price, and after the death of her husband refused to deliver them to his administrator, claiming them as her own separate property. Held— That if she intended to repudiate the contract and avoid the notes by reason of her coverture, which she could do, she should have surrendered the goods to her vendors; but that, by refusing to deliver the goods to' the administrator of her husband, she rendered herself liable for the payment of their value. Judgment of the chancellor against her for the price agreed upon, and interest from the maturity of the notes, 'is affirmed.
67 Ky. 440Lucker v. Commonwealth (1868)
On the trial of an indictment for keeping a atippling-house’r in the city of Louisville, the only proof before the jury was, that spirituous liquors had been drank in the house 11 more than twice,and that the defendant had a State license to retail such liquors, and had also paid for but had not obtained, a city license. On these facts the jury was instructed in effect to find the defendant guilty. Held — That the instruction was erroneous, and the verdict against the defendant was not authorized by the testimony; that this court has no judicial knowledge of any ordinance requiring a city license, and no such ordinance was shown; nor did the testimony, in such a penal case, authorize th.e deduction that the liquor drank in the defendant’s house was drank with his consent or was sold by him.
67 Ky. 442Davis v. Morton (1868)
1. The courts of Kentucky will not abate a suit ou a plea of the pendency of a prior suit, on the same debt and between the same parties, in a court of another State. 2. As between themselves the States of this Union, though integral parts of the same national sovereignty, are yet foreign to, and independent of, each other.
67 Ky. 445Inman & Carr v. Strattan & Snodgrass (1868)
1. When an attachment has been levied, and the defendant has executed bond, with security, that he “shall perform the judgment of the court," as authorized by the Civil Code, sections 242, 243, the attachment is discharged by operation of law, and the obligors in the bond are bound uneondith,nally to perform the judgment of the court in the action, and the sufficiency of the grounds for obtaining the attachment cannot thereafter be inquired into. (Mazelrigg vs. Donaldson, 2 Met., 445.) 2. An order of the court for a rule against the surety in a bond to “perform the judgment of the court” discharging an attachment levied on a steamboat, to show cause why he should not be compelled to perform the judgment of the court in the action, is not a final order on which an appeal muy be taken to the Court of Appeals. Such appeal is dismissed for want of jurisdiction.
67 Ky. 448Morris v. Schallsville Branch (1868)
CASE 43 — AD QUOD DAMNUM APPEAL FROM CLARK COUNTY COURT. CITED— Revised Statutes, 2 Stanton, 449. CITED— Civil Code, secs. 822, 903, 766, 369, 371, 372. Revised Statutes, chapter 103.
67 Ky. 450Hill & Bergen v. Harris (1868)
CASE 44 — PETITION ORDINARY APPEAL FROM MADISON CIRCUIT COURT. CITED— Civil Code, sec. 53. 2 Bibb, 215 ; Langford vs. Owsley. Sedgwick on Damages, p. 108. 1 Duvall, 262; Whittaker vs. Sandifer. 6 Dana, 352; Chamberton vs. McCallister. CITED— 15 Mess, W., 117 ; Alder vs. Keighley. Sedgwick on Damages, p. 212. Littell, S. C.; Caldwell vs. Reed. 6 Dana, 352 ; Chamberton vs. McCallister. 14 Vermont, 311; 1 Denio, 317. Chitty on Contracts, 684; 15 Mo., 175.
67 Ky. 453Loud v. Loud (1868)
lu After the wife had permanently abandoned her husband and Ms home, the husband and wife, together with a third party as her trustee, entered into articles of separation, which was duly acknowledged for record by .the husband, and also by the wife and her trustee. .In these articles it was recited that she had voluntarily abandoned him “without legal cause to authorize either dower or alimony,” which recital was justified by the evidence in the case, and it was then stipulated that he should pay her three hundred dollars, and furnish her with a brick house, &c., &c., during her “chosen isolation.” After the death of the husband, without devising any thing to her, she made a deed of release ■within the year as provided in section 7, chapter 47,. Revised Statutes, and asserted her claim to dower in his estate. The judgment of the circuit court refusing dower is affirmed, 2. The right of a wife to relinquish a jointure and claim dower in her husband’s estate within twelve months after his death, as provided in section 7, chapter 47, Revised Statutes (2 Stant., 26), does not embrace'articles, contracts, and .jointures entered into between separated husband and wife, to settle existing causes of litigation, and peaceably accomplish by private contract what could be obtained by a costly and vexatious litigation. 3. Articles of separation being entered iuto with a trustee consenting for the wife, in which the husband provides for her as well, or perhaps better, than the court would compel him, in consideration of which she relinquishes right of dower and distribution in his estate, and the parties continue to act upon this until the husband dies, it is too late for her to complain or .seek to repudiate'the provision made for her, and demand dower and distribution. See opinion for an extended recital and review of authorities on questions involved in this case.
67 Ky. 462Stephens v. Guthrie (1868)
In an action to charge and recover from owners of property within specified distances their proportion of the cost of a cistern in the city of Louisville, which was íequired lo be built by a special ordinance, “at the exclusive cost of the owners of property chargeable therefor under the city charter and ordinances,” the petition is demurrable, unless it pleads the general ordinance specifying the distance from the cistern within which the property shall be charged. In such cases, it is necessary to plead both the special and general ordinance. (Babbitt vs. Woolley, ¿fc., 3 Bush, 103.)
67 Ky. 464Hydes v. Joyes (1868)
CASE 47 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— Acts of Kentucky, 1813.page 22, charter of city of Louisville. Act of June 2, 1865, amending city charter,. Session Acts,. 1850-51, vol. 2, p. 624. Session Acts, 1865, vol. 2, pp. 506-7. MSS. Opn., June term, 1863; Gordon vs. City of Louisville. MSS. Opn., February 27, 1864; L. 4* P. R. R. Co. vs. Louisville. CITED— City charter of Louisville and act of June 2, 1865, above.
67 Ky. 471Dear v. Brannon (1868)
CASE 48 — PETITIONS EQUITY APPEALS PROM LOUISVILLE CHANCERY COURT. CITED— Civil Code, sec. 257. 6 J. J. Mar., 529; Singleton vs. Carroll. 22 Pickering, 381; Alabama {N. S.) R., 126. 3 Humphrey's R., 473. CITED— Story's Equity Jurisprudence, sec. 1307. 2 Dana, 248; Keas vs. Yewel. 5 Dana, 551; Sadler vs. Glover. 6 Dana, 121, 122; Laughlin vs. Ferguson. 2 Mar., 320; Trotter's heirs vs. Hannegan. 4 Mon., 149; Holland vs. Bouldin.
67 Ky. 478Louisville City Railway Co. v. City of Louisville (1868)
CASE 49 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— New city charter of Louisville, p. 93. Constitution of Kentucky, sec. 37, art. 11. Act incorporating appellant, and contract with the city by ordinance. [No brief in records.]
67 Ky. 482Miller v. Miller (1868)
CASE 50 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— Revised Statutes, sec. 25, chapter 106. CITED— Revised Statutes, sec. 25, chapter 106,2 Stanton 464; and sec. 17, chap. 30, 1 Stanton, 426; sec. 1, art. 3, chapter 46, 2 Stanton, 2. 4 Met., 178 ; Wickliffé’s ex’rs vs. Preston.
67 Ky. 486Offutt v. Glass (1868)
CASE 51 — PETITION ORDINARY APPEAL FROM SCOTT CIRCUIT COURT. CITED— 1 B. Mon., 325; Kenningham, éfc., vs. Bedford, fyc. 9 Mad., 438 ; 3 Ark., 91; Ship vs. Huey. 2 Bro. C. C., 579; Nesbitt vs. Smith. 10 Bligh. N. S., 548; 7 Hill, 587. 11 N. H., 335; N. H. Savings Bank vs. Ela. 7 Paige, 452; Miller vs. Me Can. 11 Paige, 11; Barry vs. Strong. 10 Johnson, 587; Rathburn vs. Warren. 13 Wend., 377; Huffman vs. Halbert. 5 Barbour, 526 ; Hubbell vs. Carpenter. 2 Metcalfe (Mass.), 176; Greely vs. Dow. 4 Barr., 73; Dundas vs. Stirling. 5 N. H., 99; Grafton Bank vs. Woodward. 10 N. II., 162;' Baily vs. Adams. 12 N. H., 320; Merrimac Bank vs. Brown. 13 N. H., 240 ; Fowler vs. Brooks. 14 Ohio, 348; McComb vs. Kitridge. 5 Hill, 436; Myers vs. Wells. CITED— 1 B. 'Mon., 322; Tudor vs. Goodloe. 1 B. Mon., 325; Kenningham, fyc., vs. Bedford, fyc. 2 Bush, 179 ; Robinson vs. Miller.
67 Ky. 490Haly v. Auditor (1868)
On motion for mandamus against the Auditor to compel him to draw his warrant upon the Treasury to pay plaintiff a balance claimed for materials furnished.and work done on public buildings under a contract with the State Librarian, it docs not appear from the petition whether the work was done under a contract made by the directions and advice of the Governor or not; and as the petition alleges that^ the plaintiff was employed by the Superintendent to do the work, and does not disclose that the contract was not in writing, it must be presumed that the officers did their duty in the absence of facts to sustain a contrary conclusion. Such facts not being apparent on its lace, the circuit court erred by sustaining a demurrer to the petition. (See Rev. Stat., sec. 1, art. 2, chap. 78, and art. 1, chap. 16.)
67 Ky. 494Howard v. Howard's ex'r (1868)
1. :|I will that my daughter, Laura Mattingly, and her children, have my home farm at twenty-five dollars per acre; they to pay my other heirs the amount necessary to make them equal, share and share, in my estate, after deducting the amount each heir has already received, for which I hold their notes.” 111 will to my beloved wife, Charity Howard, one third of my whole estate of which I die possessed.” In construing the foregoing conflicting clauses, the court held, that the widow was entitled to one third of the real estate of her deceased husband in fee; and that Mrs. Mattingly and her children are entitled to the two thirds of the “ home farm," for which they must pay twenty-five dollars per acre. (See sec. Y, chap. 80, Revised Statutes, 2 Stanton, 221.) 2. When two clauses of a will or two devises in a will are repugnant, and cannot stand together, the clause or devise which is posterior in local position must prevail; the subsequent words being regarded as denoting a change of intention of the testator from that previously expressed. (Jarman on Wills, 394, lop page; Sunt vs. Johnson, §c., 10 B. Mon., 342.)
67 Ky. 498Crutchfield v. Thurman (1868)
CASE 54 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— 7 Mon., 617; Blight's heirs vs. Tobin. Hill on Trustees, 144-5. 3 Bibb, 177; Estill vs. Estill, <^c. 1 Mar., 231; Owings vs. McClain. 3 /. J. Mar., 276; Orr vs. Pickett, fyc. 3 Johnson's Chy. R., 261; Duke of Cumberland vs. Cadrington, SfC. 4 Johnson's Ghy. R., 136; Shepherd vs. Eaves. 1 Johnson's Ghy. R., 339; Haven vs. Hays. CITED— Hobart's R., 105 ; Lampleigh vs. Brathwait. Smith's Leading Cases, 4th Amer. ed., s. p. 67, top page 193.
67 Ky. 502Elliott v. Nichols (1868)
CASE 55 — PETITION EQUITY APPEAL EKOM NELSON CIRCUIT COURT. CITED— Revised Statutes, sec. 14, chap. 42, 2 M. B., 876. 1 Dana, SI; Ross vs. Garrison. 1 Dana, 242; Rogers vs. Grider. 3 Bibb, 3; Gist's heirs vs. Robinet. 1 Duvall, 272;, Babbitt vs. Scroggin. 3 Bush, 454; Croan, fyc., vs. Joyce, fyc.
67 Ky. 507Louisville & Nashville Railroad v. Robinson (1868)
1. The implied undertaking between a Railroad Company and its employees in the same class of service, does not exonerate the company from liability for damages, resulting to one of such co-agents, from extraordinary, or gross negligence of another of such agents, in the same line of service. The principles of the case of Louisville and Nashville Raib-oad Company vs. Collins (2 Duvall, 114), are adhered to without qualification. 2. Engineers and brakesmen are held to be in the same class or line of service; and the fact that the engineer served on a passenger and the brakesman on a freight train, does not affect the reason and policy of implying, as between themselves, such associations, knowledge, and trust, as to have induced an undertaking mutually to risk all the contingencies which the ordinary skill and care of each other in his line of service could not avert. 3. Gross neglect is either an intentional, or such a reckless disregard of security and right, as to imply bad faith, and, therefore, squints at fraud, and is tantamount to the magna culpa of the civil law, which, in some respects, is quasi criminal. 4. If the employe, or agent complaining of hurt, contributed to it, by his own negligence, he cannot recover damages from the Railroad Company, unless its co-operating agent, charged with gross neglect, could have avoided the impending damage, by the observance of ordinary diligence, notwithstanding the neglect of the complaining party.
67 Ky. 510Woodward v. Birch (1868)
1. Innkeepers are liable for money surrendered to their custody by a guest, unless they took extraordinary care of it. 2. Innkeepers are responsible for the good conduct of their employes'. ( Weiscnger vs. Taylor, $0., 1 Bush, 276.) 3. A clerk in the employment of an innkeeper, being intrusted with the key of his safe, procured another key to be made. The innkeeper had knowledge of the existence of the false key, discharged his said clerk, but made no change in the lock of his safe. The clerk, some time after ho was discharged from service, by means of the false key entered the safe and took therefrom money which had been deposited therein by a guest of the house. The innkeeper is responsible, notwithstanding he may have told the guest, at the time he surrendered the money to him, that his safe had recently been robbed, and that he would not be responsible for money deposited in it.
67 Ky. 516Cessna v. Cessna's adm'r (1868)
1. Vendor, by a writing for a valuable consideration, bound himself to convey a tract of land to the vendee “and his lawful children." At ths date of the Writing the vendee had three children, and after that time three more were born to him. The six children are entitled to six sevenths of the tract of land. 2. “CirrLDBíiír,” when inserted in a conveyance, or a bond for a conveyance, of land, is a word of purchase and not of limitation, and by its insertion in the bond to their father, as there were children then in , being, they were parties vendees, just as much as if they had been specially named; and as children wore born to him, after the date of the bond, the estate would open up to them, and such after-born children would take their respective shares.
67 Ky. 519Flournoy v. Flournoy (1868)
A testator died without children, leaving a widow, a brother, and three sisters, and a will containing the following among other provisions: First. A devise to his widow (who was his executrix) of sole possession of all his estate during her life. Second. A direction to pay his debts by the sale of certain specified property. Third. A direction to his executrix to sell his southern property, and of the proceeds “retaining one half for her sole use and benefit; the other half to be divided in equal proportions between my brother and sisters, or, in case of the death of any of them, to their children, in such pro rata division as the law makes in such cases; provided, however, that from the portion going to” his brother and each of his sisters, the several debts which his brother and the respective husbands of his sisters owed to testator, should b.e subtracted, the husbands of the sisters being dead. Fourth. Of his Kentucky farm, negroes, &c., or so much thereof as might remain after paying debts, as before provided, he devised to his widow one half for life, with “the right to will in fee simple one half of all my property left; the'other half to be divided among my bi-other and sisters or their children, as above described;” provided, that if his widow should marry, then all his property to be sold “and divided amongst my brother and sisters,” first paying to his widow five thousand dollars as her portion. Held — 1st. That, under these provisions of the will, the debts owing the testator by his brother and brothers-in-law are not included in the devise to his widow, but to go to his brother and sisters, to be thrown into hotchpot for equalizing among themselves their distributive portions. 2d. That the will does not vest in the widow, a freehold title to the southern property, but the mere possession and curation without title; and the title thus undisposed of by the will descended to the brother and sisters as heirs. 3d. That, the devises to the brother and sisters were absolute, the contingent provision for the children, being intended to apply only to those of such of the primary devisees as might not survive him, and, . therefore, could not take under the will.
67 Ky. 527Mahoney v. McGee (1868)
1. The “ Act to revive and continue in force acts and amended acts to amend the third and fifth articles of chapter eighty-six, Revised Statutes,’’ approved January 12, 1866 (Myers’ Sup., 150), has both a retroactive and prospective operation. When the proceedings for the sale of infant’s real estate, under chapter 86, have been irregular, said act gives to the chancellor power, when he ascertains that it would be right, by proper proceedings, to mature, perfect, and sustain the sale, and secure to the purchaser the land he bought, and to the ward the price bid, and thereby prevent injustice to either party. 2. When the guardian offered to file an amended petition, making the necessary allegations and the proper parties, for the purpose of curing any defects in the proceedings for the sale of his ward’s land, the circuit court erred by sustaining the purchaser’s exceptions to the sale, and also by sustaining a demurrer to the amended petition of the guardian. (Boyce and wife vs. Sinclair, 3 Bush, 264.)
67 Ky. 530Kennedy v. Ashcraft (1868)
CASE 61 — PETITION ORDINARY APPEAL PROM LARUE CIRCUIT COURT. CITED— Jones on Bailments, 6, 7, 22. 18 B. Mon., 7; Jackson vs. Robinson. Story on Bailments, secs. 412, 413. Pothier on Obligations, 143, 627. 6 Bing., 716; Davis vs. Garnett. 12 B. Mon., 410 ; King vs. Shanks. CITED— 1 Parsons on Contracts, p. 591, note.
67 Ky. 535Morel v. Mississippi Valley Life Insurance (1868)
•A party, who was insured against accidents, “inadvertently put his arm a short distance out of the window of a railroad car, when his hand came in contact with a post standing near the track of the road, whereby the middle finger of his right hand was so badly injured as to render him wholly unable to practice his profession, of surgeon, for the period of twenty-six weeks or more.” Held — That the injury was produced by the fault of the assured, and he thereby deprived himself of all right to compensation.
67 Ky. 538Vandiver v. Hodge (1868)
1. The act of May 31, 1865, to take effect May 31, 1866 (Myers' Supplement, 295), providing that the provisions of chapter 63 of’the Revised Statutes, entitieif "Limitations of Actions and Suits," shall extend to and embrace all cases, whether the right of action accrued before or after the Revised Statutes took effe'ct, as it left twelve months for suing on pre-existing causes of action, is constitutional. 2. The unanswered plea of the statute,of limitations, is a prima facie bar to a judgment on notes executed in 1848, for land, the cause of action haviug existed more than fifteen years before the commencement of the suit, and the notes being secured by a lien reserved in the conveyance; as no action can be maintained on the notes, the lien cannot be enforced. 3. The lien reserved in a conveyance of land to secure purchase notes is only a mere security, a mere incident to the debt, which is the principal, añil cannot be enforced if the debt itself is paid or barred by time.
67 Ky. 540Williams v. Smith (1868)
1. When a sale of personal property, upon .which an execution is levied, has been suspended, by persons not defendants in the execution, as provided by section 713 of the Civil Code, any equitable cause can be shown against judgment on such bond, in whole, or any part thereof. 2. When partnership property lias been levied on to satisfy an execution against one of the partners, a settlement of the partnership should be made, and only the interest of that" partner, subjected to sale, if any interest remains to him on such settlement. 3. It is the duty of the sheriff levying on joint property, to satisfy the separate, debt of’one of the owners, first to notify in writing the other joint- owners,.and if they fail to give the officer notice of their claim, as required by the act of February 12, 1858 (Myers' Code, p'. 202), he may then proceed to advertise and sell the property so levied upon._ If the other-joint owners suspend the sale by executing- bond ns authorized by section 113 of the Civil Code, -this will be deemed as a waiver of the notifications prescribed in said act, and the cause may be finally disposed of upon equitable principles'.
67 Ky. 545Bradford v. McKibben (1868)
CASE 65 — PETITION ORDINARY appeal prom bracken circuit court. CITED— Revised Statutes, section 10, chapter 9, 1 Stanton, 223. Myers' Supplement, p. 189.
67 Ky. 547Malchus v. District of Highlands (1868)
The district of Highlands being authorized by legislative enactment to improve roads within said district, and to levy special taxes on the real estate by or through which such roads may pass, to pay for the grading, paying, &e. (Act of February 2Í, 1861.) Said act is held to be constitutional, and the levy of a tax on the land abutting on the roads thus improved, rated by the number of acres of each owner’s tract, is sustained as approaching equality as nearly as specific taxation may be expected to approximate it; and that it cannot be adjudged as unconstitutional for invidious or unjust inequality.
67 Ky. 550Sparks v. Shropshire (1868)
1. A forthcoming bond executed by a third party, recited “it being the properly of” the execution defendant. This recital is an admission that the execution defendant was the owner of the property, and as the bond suspended the sale by the sheriff and prevented a levy-on any other property, the admission, without any proof of fraud or mistake, must be deemed as an estoppel against any claim or proof that such third party was the owner of the property. 2. A third party, executing a forthcoming bond for property levied on, reciting, “it being the property of” the execution defendant, cannot, without proof of fraud or mistake, assert ownership and claim to such property by executing a claimant’s bond, and thereby prevent judgment against him on his forthcoming bond.
67 Ky. 553Burchett v. Blackburn (1868)
1. The traverse to an inquisition, on a warrant of forcible entry, before a justice, is required to be filed within three days after the inquisition. If not filed within the prescribed time, and bond for an appeal is executed, it cannot be filed in the circuit court, nunc pro tunc. 2. The required traverse is the only prescribed mode of appealing, and is necessary to give jurisdiction to the circuit court, to retry the truth of the inquisition held before the justice in the country. The recitals in the bond might be presumptive evidence of the filing of the traverse, in the absence of any opposing fact or testimony. 3. Unless the traverse is filed within the three days, the justice is required to enforce his judgment. A subsequent traverse would not suspend the judgment, nor give jurisdiction to the circuit court to try the truth of the inquisition.
67 Ky. 555Rudd v. Woolfolk (1868)
CASE 69 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— ' Act of January 17, 1854, secs. 2, 3, 2 Stanton, 534. Revised Statutes, article 13, chapter 27, 1 Stanton, 323. 1 Bush, 177 ; Tomppert vs. Lithgow. 3 Greenleaf, sec. 470. 2 Dana, 270 ; Coger vs. Coger. 2 Met., 340; Slone vs Slone. Constitution of Kentucky, secs. 24, 28, 40, article 4. Civil Code, secs. 777, 55; 37, 56, 81, 465. 4 B. Mon., 235; Harcourt vs. Rodman. 8 Dana, 43 ; Claget vs. Blanchard. 9 Dana, 395; Bank of U. S. vs. Cochran. 12 B. Mon., 595; Madeira's heirs vs. Hopkins 2 Bush 135; Jackson vs. McElroy. MSS. Opn., June, 1857; Trible vs. Chilton. 8 B. Mon., 105; Benningjield, Sfc., vs. Reed, <fc. 4 Dana,-; Bustard vs. Gates. Act of 1796, 1 M. ¿f B., sec. 4, page 743. Statute of 9, Edward 3d, 1 M. Sf B., page 663. • Act of 1792, subjecting land to execution. Act of 1835, creating Louisville chancery court. Act of 1839, Loughborough, 247. CITED— Act of January 17, 1854, 2 Stanton, 534. 2Duvall, 24; Grisivold vs. Hepburn. Constitution of Kentucky, secs. 1, 28, 40, art. 4, Constitutional Debates, pp. 1096 to 1121. 2 Howard, 343. 1 Duvall, 354; Thornton vs. McGrath. 8 B. Mon., 105; Benningfield, Sfc., vs. Reed, &?c. Civil Code, sec. 37. 2 Met., 340; Slone vs. Slone. 3 Met., 137 ; Yandever vs. Yandever. 3 Met., 501; Megowan vs. Pennebaker, 1 Met., 281; Todd vs. Dowd's heirs. 4 Dana, 429; Bustard vs. Gates. 7 B. Mon., 62 ; Lampion vs. Usher's heirs. 12 B. Mon., 472; Harrison vs. Hord. 2 Howard, S. C., 321 ; Grignor's lessee vs. Astor. 2 Danl. Chan. Prac., p.. 1279.
67 Ky. 563Day v. Cloe (1868)
1. If the debtor is not released by the agreement of another party to pay his debt, such agreement is within the statute, and a writing is necessary; but— 2. If the debtor is released, by the agreement of another party to pay bis' debt, such agreement of another party, becomes an undertaking to pay his own debt, and is not within the statute, and it is not necessary that either the agreement or release, should be in writing.
67 Ky. 565Peters v. Conway (1868)
CASE 71 — PETITION ORDINARY APPEAL PROM CALDWELL CIRCUIT COURT. CITED— Civil Code, secs. 225, 183, 70. CITED— Civil Code, secs. 106, 93,105,225,226,161, 183, 91, 69. 16 B. Mon., 178-80; Nixon vs. Jack, fyc. 11 B. Mon., 28; Bourne vs. Hoc/cer. 16 B. Mon., 83 ; Brace vs. Shaw. 18 B. Mon., 623; Lane cj- Bartlett vs. Robinson.
67 Ky. 572Voiers v. Stout (1868)
1. A band of Federal soldiers arrested Stout and took him to Catlettsburg, where he was released on condition that he would execute his notes to the owners of certain horses impressed by Confederate recruits, in the taking of which he had no agency. One of these notes was assigned and collected by military duress. The judgment of the circuit court for restitution against the assignor and assignee of the note is affirmed. 2. Payment of a note extorted by military arrest being coerced by military duress, the law implied a promise to make restitution, and the assignor and assignee are jointly liable on that promise. Although-they had no agency in extorting the note or coercing payment, each of them was apprised of the want of a valuable or legal consideration.
67 Ky. 574Davie v. Long's administratrix (1868)
CASE 73 — MOTION APPEAL FROM PULTON COMMON PLEAS COURT. CITED— Revised Statutes, sec. 1, art. 6, chap. 36; sec. 9, art. 3, chap. 91. 2 Met., 246-7; Boaz vs. Nail. 3 Mar., 619; Patterson vs. Carneal. 7 Dana, 209 ; Adams vs. Keiser. 12 B. Mon., 231'; Isaacs vs. Gearheart. 7 J. J. M., 625; Carlisle vs. Carlisle. 2 Littell, 121; Gist vs. Frazier £$■ Stewart. 7 Mon., 616 ; Blighfs heirs vs. Tobin. CITED— Revised Statutes, sec. 9, art. 3, chap. 91, Myers’ Sup., 214, act of Feb. 21, 1863. 1 M. S¡- B.’s Digest, 649; 1 Stanton, 483.
67 Ky. 577Harrison v. Slone (1868)
CASE 74 — PETITION ORDINARY APPEAL PROM PIKE CIRCUIT COURT. CITED— Civil Code, sec. 125, sub-sec. 4. CITED— Civil Code, secs. 128,126; 2 Met., 144. 4 Met., 82, 83.
67 Ky. 579Dills v. Cecil (1868)
CASE 75 — PETITION ORDINARY APPEAL EROM PIKE CIRCUIT COURT. CITED— 4 Mon., 492; .Morton vs. Roberts. 4 J. J. M., 366; Field vs. O’Bryan. 3 J. J. M., 526; Sneed’s ex’r vs. White'. 9 Dana, 22; Blanfords adm’r vs. Barger. 7 J. J. M., 582 ; Alexander vs. Bank of Commonwealth. 5 Dana, 13 ; Holbert vs. Montgomery’s adm’r. 2 B. Mon., 184; Duvall vs. Waggener, fyc. CITED— Civil Code, sec. 847. Revised Statutes, sec. 1, art. 3, chap. 63. Act of December. 20, 1865, Myers’ Sup., 755.
67 Ky. 581Dunn v. Lancaster (1868)
CASE 76 — PETITION EQUITY APPEAL PROM HARRISON CIRCUIT COURT. CITED— 2 Story’s Equity, secs. 1402 to 1420. Clancy on Rights, 144 to 150. 2 Cal. R., 447 ; 2 Hen. Sf Man., 381. 2 Dana, 437 ; Littell’s Select. Cases, 336. 1 B. Mon., 152 ; Turner vs. Davis’ adm’r. 4 B. Mon., 235 ; Thomas vs. Kennedy. 5 B. M., 29; Bowling <§• Boucher vs. Winslow’s adm’r. 5 B. Mon., 81-85; TLord vs. Hord, fyc. 13 B. Mon., 295; Lay’s ex’r vs. Brown, <fc. 8 B. Mon., 173; Marshall Sf Co. vs. McDaniel, fyc. 14 B. Mon., 160; Tomlin vs. Joyce, S¡-c. 14 B. Mon., 259 ; Moore vs. Moore. 1 Metcalfe, 232; Lynn vs. Bradley. CITED— 14 B. Mon., 642 ; Wright vs. Arnold, fyc. 8 B. Mon., 543 ; Davis vs. Tingle. 1 Story’s Equity, sec. 377.
67 Ky. 586Green v. Ball (1868)
1. An erroneous judgment cannot be assailed collaterally. 2. The purchaser of land at a decretal sale 'agreed verbally with the defen dant owner that he would become the purchaser, in order to avoid a sacrifice, and that all legal and equitable rights which he might acquire as a purchaser should operate as a mortgage to secure the repayment of whatever sums he might have to pay; and that the defendant might redeem the land by paying the sale bonds, or by refunding the amount the purchaser might pay thereon, with interest, and thus avoid the sale, or become entitled to a reconveyance of the land. The defendant paid four hundred dollars on the purchaser’s bonds. The purchaser obtained an absolute conveyance, and after-wards sold and conveyed the land to a third party, who had notice of the agreement above. Held — -That the purchaser and his vendee with notice held the title thus acquired, in trust for the defendant debtor, and that they could not evict him from the possession of the land. That the acts of the purchaser in obtaining the absolute title and selling and conveying the land were fraudulent; and that parol evidence was competent to prove the contract and fraud. That the verbal contract to make the purchase and hold the land for the benefit of the defendant debtor did not come within the statute of frauds. (Langhorne vs. Payne, 14 B. Mon., 624; Martin vs. Martin, 16 B. Mon., 8; Miller's heirs vs. Antle, 2 Bush, 407; Thomas vs. McCormack, 9 Dana, 108.)
67 Ky. 593Kentucky Central Railroad v. Dills (1868)
1. In an action against a Railroad Company, for damages, for injuries sustained by a passenger, there being no proof of gross negligence or wanton recklessness, the assessment ought to be compensatory or indemnifying only, and not for smart money. 2. If the damage resulted to the passenger solely from the negligence of the Railroad Company’s agents, it is liable for compensatory damages; or, If it resulted solely from the negligence or temerity of the passenger himself, he is entitled to nothing; or, 3. If it was a compound result of negligence on both sides, then, as the passenger’s own fault was contributory to it, he can recover nothing, unless the managing agents saw his perilous condition, and might, by ordinary diligence, have prevented the injury.
67 Ky. 597Denton v. Lytle (1868)
1. Ordinarily the relative rights and responsibilities of the parties to a bill of exchange is determined by their attitude upon the bill (Hixon vs. Seed, 2 LiUell, 175; Mdridge vs. Duncan, 1 B. Mon., 101); but— 2. Although, as a general rule, even when the bill is accommodation paper, the drawer stands bound before an indorser, as between themselves —and, therefore, the indorser may look to the drawer if he pays the debt for the amount paid — the legal liabilities of the parties, arising from their relative positions on the bill, may be changed, by an agreement between them. (Scott vs. Doneghy, 17 B. Mon., 321.) 3. The accommodation drawer and indorser each paid one half of the bill, on the basis of equal responsibilities as between themselves, as sureties of the acceptors; this fact, if unexplained, authorizes the inference, that they acted in pursuance of some previous understanding or agreement rendering it obligatory on them both to do so. In this case the indorser sued the drawer, but did not recover the amount paid by him as above.
67 Ky. 600Burgess v. Northern Bank (1868)
1. To a bill of exchange, accepted by one partner in the name of the firm, the name of the drawer and indorser was forged. This bill was sold to a bank by the partner who accepted it, and the proceeds thereof drawn by him in the firm name, by an indorsement thereof on the forged check of the drawer and indorser. Notwithstanding the forgeries, the bill having been uttered by one partner, and the proceeds thereof having been received by him in the firm name, each partner is liable to the bank for the amount of the bill, the officers of the bank having no knowledge of the forgeries at the time of the purchase of the bill and the payment of the money. 2. If one of the parties to a bill negotiate it with a forged indorsement, in the name of the payee, he must be understood, as affirming, that the indorsement, is in the handwriting of the payee, or written by his order, and is estopped from denying the genuineness of the indorsement, or setting up the forgery in defense of an action by the holder. [Story on Bills, sec. 225; Hartsman vs. Henshaw, fc., 11 Howard, 177.) • 3. Each partner is presumed to have authority to bind the firm by the use of its name upon bills and promissory notes; and when so used, the bill or note will be deemed to be on partnership account, and bind it accordingly, unless it is clearly established that the party taking it had notice that the bill or. note was made for purposes not within the partnership business. [Story on Bills, sec. 78; Story on Promissory Notes, sec. 72; Bank of Kentucky vs. Brooking, §c., 2 Liitell, 42; McGowan, §c., vs. Bank of Kentucky, 5 Litiell, 271.) 4. It is no answer to a claimant upon the firm, that the debt which he seeks to recover was contracted by one of the partners in the firm name, for a fraudulent or dishonest purpose, if the debt was incurred and the money received within the scope of the partnership business, and without the knowledge, of the other contracting party, of such fraudulent or dishonest purpose. (Qow on Partnership, 161.)
67 Ky. 606Gay v. Morgan (1868)
Summary Proceedings. — In an actiou in tlie nature of replevin, to recover a horse, the defendant executed bond, with surety, and retained possession of Ihe horse. Plaintiff recovered judgment for the horse, or his ascertained value, and, at flie same term, moved ihe court for a nils against the surely co show cause why judgment should not also be rendered against him. On the trial of Ihe rule, the circuit court properly refused to render judgment against the surety. Such a summary pjoceediug is not authorized by statute, nor is it embraced in sections 283, 4Í9, or 484 of the Civil Code. On such a bond, the plaintiff must proceed against the surely by an action thereon.
67 Ky. 608Goins v. Allen (1868)
CASE 82 — PETITION EQUITY APPEAL PROM ORATES CIRCUIT COURT.
67 Ky. 611McMillan's heirs v. Hutcheson (1868)
1. Every survey made and patent issued, under the act of 1835, on county court certificates, for vacant and unappropriated land, which interferes with any survey or patent theretofore made, or issued, is null and void. 2. As a patent is a species of record, it is a general rule, that, when it appears void on'its face, it can only be avoided by a direct proceeding in the nature of a scire facias; but __ 3. When patents are declared void by statute, the legal nullity of the patent, may be shown collaterally, by extraneous proof of the fact that annulled it. (Ray vs. Barker's heirs, 1 B. Mon., 368: Dallam vs. Handley, 2 Marshall, 418; Atchly vs. Latham, 2 Liitell, 362; Jennings vs. Whitaker, 4 Mon., 51; Pearson vs. Barker Asbell, 4 Dana, 322; Cone vs. Flynn, lb., 501; Taylor vs. Fletcher, 7 B. Mon., 82; Clark vs. Jones, 16 B. Mon., 126.) Such patents are no documentary title. 4. A survey and patent made and issued in 1849, under the act of 1835, for land which had been in adverse possession for more than thirty-years, and which had been surveyed under a Virginia warrant in 1784, was utterly and absolutely null and void, and the holders of either the possessory right, or the title under the survey of 1784, was entitled to recover the land as against the holder under the void patent of 1849. 5. A party in possession, under a patent which is declared to be void by the statute of 1835, under which it issued, stands just as he would, had he never procured a survey or patent; and as he has no title derived from the Commonwealth, the limitation of seven years for the protection of actual settlers under any such title does not apply to his settlement, under his void patent, which conferred no right or title; and in such a case, the void patent being no documentary title, twenty years adverse and continued possession would not evict beyond his actual inclosure. 6. Land surveyed in 1784 was sold and conveyed in 1794. Patent issued in 1850. The patent passed the legal title to the vendees, by relation. 7. Seisin, in its technical sense, is actual or constructive possession under a perfect legal title — it includes, as an essential element, an actual entry also, 8. “Seized,” as used in a power of attorney given in 1794 by a non-resident to sell lands of which he was then seized in Kentucky, is construed to have meant, possessed, or entitled to, in law or equity, and to have included land surveyed, but not patented. It did not appear that the maker of the power held any land in Kentucky under a patent at that time, 9. An agent’s conveyance is not voidable, because he conveyed land of his principal by a less extensive warranty than the power might have authorized.
67 Ky. 619Baker v. Louisville & Nashville Railroad (1868)
CASE 84 — PETITION ORDINARY APPEAL PROM WARREN CIRCUIT COURT. [Brief not in record.] CITED— Civil Code, secs. 93, 100, 102, 123. 2 Bush, 575.
67 Ky. 624Carrington v. Herrin (1868)
CASE 85 — PETITION ORDINARY APPEAL FROM LEWIS CIRCUIT COURT. CITED— 15 B. Mon., 453; 7 B. Mon., 587. 2 Duvall, 257; 1 Bush, 112. Civil Code, secs. 34, 711. 3 Metcalfe, 389. CITED— Civil Code, secs. 709, 711, 719. 15 B. Mon., 450-1; Green vs. Gudehus. Revised Statutes, sec. 11, chapad,sec. I, art. 14,1 Slant., 486; lb., 423, 453.
67 Ky. 628Foster v. Wade (1868)
1. An actiofl against the sheriff and his sureties, for failing to pay over money collected by him on an execution, from another county, must be brought in the county in which the sheriff qualified, (Civil Code, section 94.) 2. The court whence an execution issued, which was directed to the sheriff of another county, has no jurisdiction of an action against such sheriff and his sureties for his failing to pay over money collected by him on such execution. That part of section 3, article 18, chapter 36, of the Revised Statutes, conferring jurisdiction on the court whence the execution issued in such eases, was repealed by the Civil Code, as the same took effect July I, 1854. 3. The original Oivil Code took effect August 1, 1851. The Revised Statutes took effect July 1, 1852, and^ repealed the Code so far as inconsistent with the Revised Statutes. But the Oivil Code, a3 revised, amended, and completed by the commissioners, and adopted by the act of February 25, 1854, took effect July 1, 1854, and repealed all laws coming within the purview of its provisions. (See Civil Code, secs. 148, 908.) 4. After July 1, 1854, the Oivil Code prevailed over the provisions of the Revised Statutes coming within the purview of the provisions of the Oivil Code.
67 Ky. 631Conner v. Downer (1868)
li A surviving husband, who never had actnal seisin during the life of his wife, is not entitled to curtesy in her lands. At her death, her heirs.at-law became entitled to possession. 2. Although the proceedings for the sale of land for distribution were ir'gular, but not void, acquiescence iu the sale for more than thirty years would repel the idea of fraud or unfairness in the procurement of the judgment or decree for the sale. '3. Possession of the purchaser and his vendees of land sold under a decree of court for distribution, is held to have been adverse to the original title-holders and distributees. 4. The period within which an action for the recovery of real property may be brought, shall not, in any case, be extended beyond thirty years from the time at which the right to bring the suit first accrued to the plaintiff, or the person through whom he claims, by reason of my death or the existence or continuance of any disability whatever. (Revised Statutes, section 5, article 1, chapter 63, 2 Stanton, 124.)
67 Ky. 635Dye v. Holland (1868)
CASE 88 — PETITION EQUITY APPEAL FROM LARUE CIRCUIT COURT. . CITED— 3 Met., 368-9 ; Fall vs. McMurdy. 2 Bibb, 270; Young vs. Craig. 4 Bibb, 81; Smith vs. Smith. ’2 Dana, 265; Harrison vs. Talbot. CITED— 2 Duvall, 283. Angelí on Limitations, secs. 187, 190. 1 Hilliard on Vendees, secs. 23 to 26.
67 Ky. 637Beyland v. Sewell (1868)
CASE 89 — PETITION EQUITY APPEAL PROM CAMPBELL CIRCUIT COURT. CITED— 2 Bush, 90 ; Long vs. Burke. Story’s Equity, secs. 1224, 1226. 1 Seh. Lefr., 135; Hughes vs. Kearney. 2 Ball Beattie, 514; Saunders vs. Leslie. 15 Ves., 340; Mackreth vs. Symmons. Adams’ Equity, pp. 128, 129. 3 Met., 285; Muhling vs. Sattler. 2 Black., 458 ; Chilton vs. Braden. 5 J. J. M., 323; Richardson vs. Baker. I Dana, 576 ; Galloway vs. Hamilton. II Gill John., 103 ; Green vs. Fowler. 10 Yerg., 186; High vs. Batte. ' 1 Met., 293 ; Chambers vs. Keen. 1 Mon., 43, 44; McGlanahan vs. Chambers. CITED— 5 Lit., 194; Brinker vs. Perry. 1 B. Mon., 251 ; Simpson vs. Daniel. 3 Dana, 597 ; Perrin vs. Broadwell. 2 Bush, 566; Bowman vs. Curd. Revised Statutes, 2 Stanton, 230; Myers’ Sup., 741. 18 B. Mon., 650; Stockwell vs. Chapman. 1 Met., 563 ; Cottman vs. Martin. 1 Met., 253 ; Gritton vs. McDonald. 2 Duvall, 390; Gooch, Sj-c., vs. Baxter. ■ 2 Bush, 90 ; Long vs. Burke. 2 Bush, 206 ; Maupin vs. McCormick. 17 B. Mon., 143 ; Neal vs. Davis. Sugden on Vendors, 353. 6 Ves., jr., 752; Nairn vs. Browse. 2 Maddock’s Chancery, 130. 3 Mon., 72; Honoré’s ex’rs vs. Bakewell. 3 B. Mon., 452 ; Broadwell vs. King. 10 B. Mon., 282; Muir vs. Cross. 2 Mar., 295; Fowler vs. Rust’s heirs. 3 Met., 285; Muhling vs. Sattler. 1 Bush, 635; Martin vs. Hortin.
67 Ky. 642Millet v. Watkins' adm'r (1868)
CASE 90 — PETITION ORDINARY APPEAL PROM HENDERSON COMMON PLEAS COURT. CITED— Revised Statutes, sec. 35, art. 2, chap. 37. Civil Code, secs. 473, 126, 128. 1 Met., 24; Rogers vs. Mitchell's ex'rs. 15 B. Mon., 184. CITED— Revised Statutes, secs. 35, 36, art. 2, chap. 37. 3 Met., 322-3 ; Bennett vs. McCrocklin. 15 B. Mon., 184; Thomas' ex’rs vs. Thomas.
67 Ky. 644Hardy v. Trabue (1868)
T-wo grounds in the alternative for an attachment — “ that the defendant has left the county of his residence to avoid the service of a summons, or so conceals himself that a summons cannot he served on him,"- — are deemed sufficient, and attachment sustained. ( Wood vs. Wells, §c., 2 Busk, 197.) See opinion for a review of evidence showing its sufficiency to sustain attachment on the above grounds.
67 Ky. 654Patterson v. Hansel (1868)
CASE 92 — EJECTMENT APPEAL PROM TAYLOR CIRCUIT COURT. CITED— Act of 1785, M. ó; B., 433 ; Act of 1795, lb., 437. Act of 1796, lb., 453; Act of 1831, lb., 453. 1 Marshall, 310 ; Morgan vs. Beall. 5 J. J. M., 24 ; Edwards vs. Hanna. 4 Littell, 272 ; Dunlap's heirs vs. Mcllvoy. 7 B. Mon., 162; Pierce's heirs vs. Patton. 2 Bush, 453 ; Terrill vs. Rankin. 3 B. Mon., 173; Dennis vs. Warden. 2 Bibb, 148-9; Robertson vs. Morgan. CITED— M. B.’s Digest, 437, 438, 439, 453.
67 Ky. 662Bondurant v. Owens (1868)
CASE 93 — PETITION ORDINARY APPEAL FROM FULTON COMMON PLEAS COURT. CITED— Civil Code, see. 125. 15 B. Mon., 604-5; Petty vs. Malier. 15 B. Mon., 73; Smith vs. Moberly. Revised Statutes, sec. 1, art. 15, chap. 36. 2 Bibb, 94 ; Allen vs. Sanders.
67 Ky. 666Colsten's heirs v. Chaudet (1868)
CASE 94 — PETITION EQUITY APPEAL PROM MARSHALL CIRCUIT COURT. CITED- Civil Code, sec. 588. MSS. Opn., January, 1863 ; Breden vs. Bittison. 3 Met., 96 ; Haney vs. Tempest. 1Williams on Executors, s. p. 579, s. p. 849 ; 2 lb., 617. 1 Met., 264; Allen and wife vs. Vanmeter’s devisees. 4 Lit., 400 ; May’s heirs vs. Frazier. 3 J. J. M., 246; Coleman vs. McKinney, Spc. 13 B. Mon., 365; Jones vs. Letcher. 13 B. Mon., 380; Garrett vs. Gault. Sugden on Vendors, 3d Amer. cd., s. p. 214. 4 Johnson’s Chy. R., 368; Berger vs. Duff. 2 Dana, 75; Muldrow’s heirs vs. Fox. 3 Bibb, 351; Wooldridge vs. Watkins. Sugdcn on Powers, 177. 9 Dana, 102; Pebles vs. Walts; 9 B. Mon., 578. CITED— Civil Code, sec. 125. 3 Bibb, 351; Wooldridge vs. Watkins’ ex’rs, 8¡'c. 3 Mar., 132; Anderson vs. Turner. 3 J. J. M., 246; Coleman vs. McKinney. 2 Dana, 75; Muldrow’s heirs vs. McKinney. 4 Lit., 400; May’s heirs vs. Frazier. 4 Johnson’s Chy., 368 ; Berger vs. Duff.
67 Ky. 678Lewis v. Williams (1868)
CASE 95 — PETITION ORDINARY APPEAL PROM TAYLOR CIRCUIT COURT. CITED— 2 Duvall, 246; Rice, S¡-c., vs. Cravens. 5 Mon., 269 ; Hunter vs. Gatewood. 3 Met., 247; Finnell vs. Cox. 2 J. J. M., 28; Thomas, fyc., vs. Ferqueran. 5 Mon., 27; Bank of Limestone vs. Penick. CITED— Civil Code, secs. 651, 364 to 368, and notes, 653. MSS. Opn., Oct., 1856; Williams vs. Bettison. MSS. Opn., Dec., 1857; Burreños ex’r vs. Wickliffe. 2 Met., 425; Yandever vs. Griffith. 3 Met., 37 ; Russell vs. Monies. 2 Met., 558; Litton vs. Young. 3 Met., 577; Winston vs. Cox. 2 Met., 538.
67 Ky. 682Shrock v. Shrock (1868)
1. A circuit court is authorized to decree a separatio.n or divorce from bed and board for any such cause as it may, in its discretion, deem sufficient. This discretion is not arbitrary or unlimited, but a sound legal discretion, and only to bo exercised for such causes as may be deemed sufficient when considered with a just and reasonable regard to the legal rights and obligations of both parties. (Revised Statutes, sec. 6, art. 3, chap. 47, 2 Stallion, 20.) 2. The allegations of the wife that her husband, “in a fit of anger, drove her away, and told her to take her things and leave, which she did,” and other reprehensible conduct upon his part, as inducing causes of unhappy relations between them, resulting in her separation from him, were, by order of the court, erroneously stricken out of her petition for a divorce from bed and board and alimony. These allegations are held to be sufficient, if true, to entitle the plaintiff to the relief sought. 3. Although no legal cause of divorce exists, the right to a decree of separation and alimony, which the law afforded to the wife before the adoption of the Revised Statutes, are not impaired, but recognized by section 6, article 3, chapter 47, Revised Statutes (2 Stanton, 20).