68 Ky.

Volume 68 — Kentucky Reports

121 opinions

68 Ky. 1Louisville & Nashville Railroad v. Sickings (1869)
CASE 1 — PETITION ORDINARY APPEAL FROM WASHIUGTOH CIRCUIT COURT. CITED— 17 B. Mon., 578; Louisville and Nashville R. R. Co. vs. Yandell. Sedgwick on Measure of Damages, 495, 606. Am. Law Reg., Sept., 1864; Telfer vs. Northern R. R. Co. 4 Barn, dp Aid,., 30. Roscoc’s Criminal Ev., 794. 2 Kent’s Com., 560. Am. Law Reg., June, 1866; Bannon vs. R. R. Co. Redficld on Raihoays, p. 330, sec. 150. 9 Car. dp Payne, 601; Sills vs. Brown. Am. Law Reg., June, 1868; Indianapolis and Cin. R. R. Co. vs. Rutherford. 3 Allen, 18; Todd vs. Old Colony R. R. Co. 7 Allen, 297; Am. Law Reg., March, 1868; P. and C. R. R. Co. vs. McClung. 23 Howard, 166; Bernhart vs. Rensellear and S. R. R. Co. 9 Harris, 203; New Jersey R. R. Co. vs. Kennard. 6 Casey, 234; Sullivan vs. Reading R. R. Co. 9 Penn. St., 318; Penn. R. R. Co. vs. Zehe and wife. 12 N. Y., 236; Holbrook vs. Utica and S. R. R. Co: 49 Penn. St., 186; Catawissa R. R. Co. vs. Armstrong. 1 Greenleaf’s Ev., sec. 108. CITED— 1 Redfield on Law of Railways, 516; 2 lb., 193-4,197. 2 Duvall, 114; Louisville and Nashville R. R. Co. vs. Collins. Hardin’s Reports, 586; 1 Bibb, 248.
68 Ky. 11Nutall's adm'r v. Brannin's ex'rs (1868)
CASE 2 — PETITION ORDINARY APPEAL EROJI OLDHAM CIRCUIT COURT. CITED— Revised Statutes, 1 Stanton, 509-10-11. Civil Code, section 473 ; 1 Met., 24. 1 Greenleaf’s Ev., secs. 88, 560, and note. CITED— Revised Statutes, 1 Stanton, 509. 1 Grecnleafs Ev., sec. 95. Civil Code, secs. 674, 161, 896.
68 Ky. 20Rankin v. Barnes (1868)
1. In a suit in Kentucky on the record of a judgment recovered in the State of Indiana, although the judgment in that State is apparently harsh and erroneous, yet not being revisable in' a Kentucky court, it must operate as valid and conclusive until reversed in Indiana. But— 2. A counter-claim which was dismissed in the suit in Indiana for alleged want of prosecution, being unlitigated, may be plead as a defense in the suit-on the Indiana judgment in this State.
68 Ky. 21Reed v. Lander (1868)
Under a parol agreement that he should have the use of land during his life, the tenant, a poor old man, entered, and, by the contributions and assistance of relations and others, made permanent improvements upon the land, which, at his death, were to revert to the owner. The owner thereafter notified his tenant to surrender, and sued for possession and rent. The tenant defended, and claimed pay and lien on Ilia land for his improvements. Held — That the tenant was entitled to the value of his improvements, and a lien on the land for the amount thereof, and interest thereon from the date of the disaffirmance— notice to quit — and that he was liable for rent from that date.
68 Ky. 25Simmons v. McKay (1868)
CASE 5 — PETITION EQUITY APPEAL FROM BULLITT CIRCUIT COURT. CITED— 1 Dana, 35; Ross vs. Garrison and wife. 1 Dana, 243; Rogers vs. Grider. 6 Dana, 387; Thompson vs. Peebles. 12 B. Mon., G51; Moore vs. Moore, SfC. 1 Duvall, 273 ; Bullitt, fyc., vs. Scroggin. 3 Bush, 454; Croan, SfC., vs. Joyce, SfC. 2B. Mon., 99; King's heirs vs. Morris Sf Small. 2 B. Mon., 86; Goodloe vs. Rhodes, <fc. 6 B. Mon., 316; Patrick's heirs vs. Chenault. 8 B. Mon., 33; Maraman's heirs vs. Caldwell. 3 Dana, 296; Miller vs. Shackleford. 4 Bibb, 436; Massie vs. Sebastian. 3 Mar., 303; Jones vs. Prewett. 1J. J. M., 450; Wallace vs. Maxwell. 9 B. Mon., 561 ; Fitzhugh's heirs vs. Taylor. 1 Litlell; Cravens vs. Dyer, Dallam <f- Co. 4 Littcll, 20 ; Pyle vs. Cravens. 2 J. J. M.; Collard's heirs vs. Groom. 6 J. J. M., 45; Graham, Sj-c., vs. Sublett. 4 J. J. M., 653; Banks vs. Johnson. 2B. Mon., 456; Schafer vs. Gates and wife. Civil Code, section 55. 18 B. Mon., 560; Pond vs. Doneghy, fyc. 4 Met., 66; Chandler vs. Commonwealth. 2 Duvall, 269; Bush vs. Bush. Revised Statutes, 1 Stanton, sec. 2, p. 546; sec. 5, p. 582. 2 Met., 353 ; Enders vs. Williams. 3 Met., 450; Earle, fyc., vs. Couch. 4 Met., 143; Hurat, Sf-c., vs. Courtenay, Sj-c. CITED. 2 B. Mon., 457; Schafer vs. Gates and wife. 3 Mar., 253 ; Porter'.s heirs vs. Robinson. 4 Dana, 429; Bustard vs. Gates and wife. 8 B. Mon., 105; Benningfield, ¿fc., vs. Reed. Civil Code, secs. 55, 56, 131, 440, 441, 339, 74, 81, 698. 1 Met., 353; Enders vs. Williams. 1Dana, 38; Ross vs. Garrison and wife. 1Dana, 243; Rogers vs. Grider. 1 Duvall, 272; Babbitt vs. Scroggin, fyc. 6 B. Mon., 315; Patrick's heirs vs. Chenault. 12 B. Mon., 651; Moore vs. Moore. 2 B. Mon., 103; King's heirs vs. Morris Small. 2 Mar., 65; Cave vs. Sanders. 7 Dana, 510; Myers vs. Sanders. 3 Mon., 267; Haynes vs. Oldham. 9 Dana, 274; Shackleford vs. Miller. Act of 1796; 1 M. S¡- B., 737-8. 1 Mur., 210; Mason and wife vs. Baker, SfC, 2 B. Mon., 345; Lewis vs. Love's heirs. 6 Dana, 88; Allison vs. Taylor and Washburne. 8 B. Mon., 12; Weller vs. Cralle. 9 B. Mon., 513 ; Trimble vs. Ratcliffe. 6 J. J. M., 83; Poague vs. Boyce. 4 Dana,-225; Baker vs. Ddbyns, fyc. 1 Dana, 531; Doyle vs. Sleeper Allsop. 4 Littell, 273 — 75 ; Winlock vs. Hardy. 3 Dana, 338-9 ; Dubois <§• Langer vs. Marshall. 1 J. J. M., 390; Gully vs. Grubbs. 4 Mon., 51; Jennings vs. Whittaker. 5 Johnson's Ch'y R., 438-9; Rogers vs. Henderson. 6 Dana, 394; Thompson vs. Peebles' heirs.
68 Ky. 37Thomas v. Crout (1868)
CASE 6 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. CITED— 4 Met., 357 ; Johnson’s ex’rs vs. Williams. 2 Smith’s Leading Cases, 249. Taylor’s Landlord and Tenant, 544-5, and notes; lb., 551. 10 Barb. Rep., 496; 19 N. T., 234. CITED— Taylor on Landlord and Tenant, 3d ed., secs. 551, 552, 553, pp. 395-6. 7 Taunton, 191; Lee vs. Riston. 17 Pick., 192; Gaffield vs. Iiopgood. 1 Atkyn., 477 ; ex parte Quincey. 1 if. Blackstone, 258; Fitzherbert vs. Shaw. 2 Kents Com.,p. 346, top.p. 429, 9th ed. Revised Statutes, 2 Stant., sec. 25, page 230. 1 Bush, 463 ; Musselman vs. Marquis.
68 Ky. 41Vance v. Throckmorton & Anderson (1868)
CASE 7 — PETITION ORDINARY APPEAL PROM MERCER CIRCUIT COURT. CITED— Story on Bailments, secs. 470, 471, 481. 5 Ad. Sf Ellis’ N. S., 164; 48 E. C. L., 164. 9 B. Mon., 72; Eisten vs. Hildebrand. 2 Met., 439; Packard vs. Northcraft’s adm’r. 3 Parsons on Contracts, p. 623. CITED— Civil Code, secs. 345 and notes, 614, 636. 1 Bouvier’s American Institutes, pp. 409, 410. 1 Parsons on Contracts, pp. 625, 627. 2 Met., 439 ; 9 B. Mon., 72. 18 B. Mon., 383 ; Tudor vs. Tudor. 1 Bouvier’s Law Dic.,p. 572. Bacon’s Abridgment, “Inns.” Story on Bailments, sec. 4T7, S?c. 16 B. Mon., 356; 1 Met., 29. Jones on Bailments, 95, 96, 97, 98. 1 Bush, 275; Weisinger vs. Taylor, Spc.
68 Ky. 47Martin v. Martin (1868)
1. “When a deed shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the latter.” (Sec. 20, chap. 80, Rev. Stat., 2 Stant., 230.) This section changed the law as to resulting trusts, but it does not apply to conveyances made before the Revised Statutes took effect. 2. When a deed was made before the Revised Statutes took effect, conveying land to one person, and the consideration therefor was paid by another, a trust resulted in favor of the latter, and that trust may be enforced. 3. If a conveyance is made with intent and to the effect of delaying creditors, it is fraudulent, and in such cases both parties being in fault, 'or in pari delicto, the courts hesitate to grant either relief, and refuse to have anything to do with the case; but if no fraud is perpetrated upon the creditors, then this principle does not apply, and the party receiving the conveyance must hold it according to the original trust, or he must pay for it. 4. If one party should accept a deed for land at the instance of another who has paid the consideration, although the policy of the statute forbids a resulting trust in the land, its object was not to enable one party to rob another, of his substance, by undertaking a trust that the law would not enforce, and, at the same time, refuse to execute the trust or to return the money. In case of such refusal, a recovery may be had against the party who receives the title, on the implied promise, raised by law, to refund to the party paying for the land, the money laid out and expended by his consent; for when he receives the title, he shall thereby be presumed as consenting to the expenditure for his use.
68 Ky. 61Harris v. Dale & Co. (1868)
CASE 9 — PETITION EQUITY APPEAL PROM BOYD CIRCUIT OpURT. CITED— 17 B. Mon., 555; Burgen, ófc., vs. Forsythe. 2 Met., 522; Toombs vs. Stone. 3 Met., 355-6; Marshall vs. Miller.
68 Ky. 64Cook v. Burton's adm'r (1868)
CASE 10 — PETITION ORDINARY APPEAL FROM MERCER CIRCUIT COURT. CITED— 6 Rich., 521; Powell vs. Keefe. Revised Statutes, “ Executors and Administrators,” secs. 17, 18. 1 Mon., 40; Bell vs. Layman. 18 Penn. (6 Harris')', Gamber vs. Gamber. 3 Dana, 79; LucJcett vs. May. 3 Dana, 299; Miller vs. Shackleford. 7 Rich. (S. C.), 14; Vandcvicr vs. Glaspy. 19 Vt. (4 Webb), 444; Abbott vs. Clarke. Civil Code, secs. 614, 615, 670. 2 Dana, 238 ; Estill vs. Fort. 2 J. J. M., 393 ; 7 Mon., 213 ; 4 /. /. M., 26. 1 Bush, 348; Riley's ex'r vs. Sharp. CITED— Civil Code, secs. 670, 161. 20 Ohio R., 185; 6 Ohio R., 35. 2 B. Mon., 339; Marrian vs. Yeager. 17 B. Mon., 156-7; McClain vs. Esham.
68 Ky. 68Phoenix Insurance v. Commonwealth (1868)
1. Section 4, article 4, chapter 83, Revised Statutes (2 Stanton, 246), and the act of February 18. 1864 (Myers’ Supplement, 410), imposing on agents of insurance companies not chartered by the Legislature of Kentucky, a tax on all premiums received within this State, and a penalty for failing to pay the same, are held to be constitutional. 2. ' The States have the constitutional power and right to discriminate against, and impose upon, corporations chartered by other States, a tax for the privilege of transacting business in such State, though no such burden is imposed upon like corporations chartered by its own Legislature. (Commonwealth vs. Milton, 12 B. Mon., 212; Tatem vs. Wright, 3 Zabriskie (IV. J.), 444; Fire Department vs. Noble, 3 E. D. Smith [N. Y.), 449; Slaughter vs. Commonwealth, 13 Grattan ( Va.), Í68.) 3. Every power which a corporation, created by the laws of one State, exorcises in another, depends for its validity upon the laws of the sovereignty in which it is exercised; and a corporation created in one State can make no valid contract in another, without, its sanction, express or implied. (Bank of Augusta vs. Earle, 13 Peters, 584.) -6. In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, uuless they are repugnant to Us policy, or prejudicial to'its interest. It is not the comity of the courts, but the comity of nations, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law arc ascertained and guided; and when the interest or policy of any State requires it to restrict the rule, it has but to declare its will, and the legal presumption is at an end. (13 Peters, 584; Story on Conflict of Laws, St.) 5. To recognize the right of a corporation created by one State, to force its presence and business into the-territory of another, is to allow a State to give its own laws an extra territorial operation, and aliow its artificial creation to transport its laws, into the sovereignty of a neighbor, over the positive enactments of such neighbor; for its very presence and capacities are by virtue of its charter. ( Commonwealth vs. Mil-ion, 12 B. Mon., 212.) 6. A corporation, as a legal entity for the purposes of jurisdiction, may have the status of a citizen in the Federal Courts under section 2, article 3, United States Constitution; but this does not make a corporation a citizen, for all the purposes and fundamental rights of a citizen, as declared in section 2, article 4, United States Constitution. 7. The Franklin circuit court, as the fiscal court, has jurisdiction under section 492, Civil Code, of all actions in favor of the Commonwealth to recover a debt, whether by penalty or forfeiture or otherwise, due the State, when the Attorney General of the State shall see proper to resort to it.
68 Ky. 81Triplett v. Scott (1868)
CASE 12 — PETITION—NEW TRIAL APPEAL PROM HARDIN CIRCUIT COURT. CITED— Civil Code, sec. 579, subsec. 7. 1 Bush, 102; Dillingham vs. Mudd, <§*c. Act of March 5, 1860, Myers' Sup., 78. Act of February 15, 1856, 1 Slant., 234. 6 B. Mon., 246; Gorham vs. Luckett. Act of 1799,2 M. fy B., 861. CITED— Myers’ Sup., 81; Rev. Slat., subsecs. 3, 6, sec. 11, title 19, 1 Stant., 234.
68 Ky. 86Board v. Jolly (1868)
CASE 13 — PETITION ORDINARY APPEAL FROM BRECKINRIDGE CIRCUIT COURT. CITED— 2 Bush, 555 ; Rankin vs. Turney. CITED— 2 Met., 146; Chiles vs. Drake. Civil Code, sees. 118, 145. 15 B. Mon., 446; 5 Littell, 281; 11 B. Mon., 195.
68 Ky. 88Renaker v. Lafferty's adm'r (1868)
Testator devised land to two sons, requiring them to pay four thousand dollars. It appeared that he considered the land as worth much more than that amount — that sum being undisposed of, passed by descent to his heirs. The excess of the value of the land at his death should be ascertained and charged against the two sons as an advancement, and they should receive no part of the four thousand dollars paid by them, until the other descendants were made proportionately equal with them, as provided by section 17, chapter 30, Revised Statutes. (1 Stanton, 426.)
68 Ky. 90Sellards v. Zomes (1868)
CASE 15 — PETITION ORDINARY APPEAL PROM GREENUP CIRCUIT COURT. CITED— 1 Johnson’s Rep., 290; Livingston vs. Bishop. 1 Ckitty’s Pleadings, p. 79. 1 Mar., 433 ; Riley vs. McGee. 1 Mar., 457 ; Ewing vs. Ford. CITED— 1 Bush, 35 ; Jones vs. Commonwealth. 1 Bush, 69; Farmer vs. Lewis. 13 Ilow., 135; Mitchell vs. Harmony. 1 Bush, 461; Eifort, ¿pc., vs. Bevins. 17 B. Mon., 691; Bolts vs. Williams. 17 B. Mon., 188 ; Waller vs. Martin. Civil Code, sec. 402; lb., Myers, p. 502 ■ — MS. Opin., Green vs. Redman. Act of 1839, Loughborough, p. 573. 4 Met., 333;‘ Buckles vs. Lambert.
68 Ky. 93Howell, Gano & Co. v. Commercial Bank (1868)
1. Levy of attachment on goods without closing the store or removing the goods. — The sheriff entered the store and levied the attachment on the goods, and, thereupon, without closing the store or removing them, by an arrangement between the plaintiffs’ attorney and the party in possession at the time the levy was made, the sheriff was authorized to and did leave the goods in possession of the latter. This arrangement did not discharge the levy or affect its validity, and such parly thereafter held possession as the sheriff's bailee. Sales of the stock of goods levied on, and additions thereto, being made by the party in possession, after the levy of the attachment, all the goods levied on, remaining in the store, are ordered by the court to be repossessed and sold by the sheriff; but no lien existed by virtue of the attachment on the goods acquired after the levy. 2. When one partner surrenders partnership property to be levied on, to satisfy an attachment against his co-partner, the partner making the surrender, is estopped from asserting title in himself, or controverting the plaintiff’s right to enforce the levy. 3. Although, strictly speaking a creditor has no lien on the partnership effects, yet each partner having a lien for all the debts and obligations of the firm, that lien, may, in many cases, be made available through the medium of the partners for the benefit of the creditors. (Story on Partnership, sec. 360; 3 Kent’s Corn., 65; Wilson, ¿fe., vs. Soper, ¿'c., 13 B. Mon., 411.) 4. Whenever, through the agency of either partner, the insolvency or the dissolution of the firm, a partnership creditor is brought in contact with a separate creditor of an individual member of the firm, equity gives the creditor of the firm preference; for the joint creditor must be paid in order to a due administration of justice between the partners themselves. (Parsons on Partnership, 345.) 5. If a private creditor of a partner attaches his interest in the firm, his attachment is avoided by the insufficiency of the joint assets to pay the joint debts. (Parsons on Partnership, 353.) 6. Liens acquired by the levy of executions and attachments, against one partner, on partnership property, are subject to the existing debts of the firm, and should only be enforced in subordination to the joint debts of the firm which were created before the date of the levy.
68 Ky. 102Johnson v. Smith (1868)
CASE IT — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— Coke’s Littleton, 42a. Bacon’s Abr., vol. 3, title “Estate for Life,” 188. Rolle’s Abr., 844; Modern Reports, vol. 4, 172. Rolle’s Abr., 845. Cruise’s Digest, vol. 1, 103, s. p., and 99, Greenleaf’s edition. Kent, vol. 4, 26; Coke’s Littleton, 42a. Bacon’s Abr., vol. 3, 181. Henry’s History of England, vol. 6, chap. 4, book 3, sec. 1, on the Laws and Sciences of England during the first two centuries after the Conquest. Cruise’s Digest, Greenlcaf’s ed., vol. 1, 97. Sir Henry Spelman on Feuds, C. 1. Yiner’s Abr., vol. 10, title “Estate,” 289. Revised Statutes, chap. 24, sec. 3. Rolle’s Abr., 845; Modern Reports, vol. 2, 317. 7 Bingham, 293 ; 8 East., 309. Preston on Estates, vol. 1, 214; 1 Coke, 48. Touchstone, 202. Henry’s History of England, vol. 8, book 4, chap. 4, sec. 1, on the Laws and Sciences of England during the second, third, and fourth centuries after the Conquest. Revised Statutes, vol. 2, chap. 80, 226. Jarman on Wills, title “Precatory Words.” Chitty’s Equity Digest, vol. 4, 3179. Hill on Trustees, 395. Vesey, vol. 1, 342; Fountain vs. Pellet. 3 Edioard’s Ch., 362; Cairns vs. Chabert. 2 Devereux Battle, 187 ; Jones vs. Sherrod. Henry’s History of England, vol. 10, book 5, chap. 4, on the Learning of England during the fourth and fifth centuries after the Conquest. Revised Statutes, chap. S3, art. 3, sec. 2. 14 B. Mon.; Turman vs. White’s heirs. Jacob vs. Jacob, decided by Court of Appeals in September, 1868, and still unpublished. CITED. Revised Statutes, sec. 2, art. 3, chap. 83, 2 Stanton, 250.
68 Ky. 105Wintersmith v. Tabor (1868)
1. A surety, in a bond having the force and effect of a replevin bond, executed to the clerk for money in litigation, loaned by order of court, is released from liability thereon by the failure of the party, to whom the money was adjudged, to issue execution, or move the court for a rule on the bond for more than a year after he was entitled to an execution on the bond. (See. 11, chap. 97, Rev. Stat., 2 Slant., 400.) The bond was ufor the benefit of such person or persons as the Hardin circuit court may adjudge." The party to whom the money was adjudged, was bound to take out execution, or move for a rule within a year; and failing to do this, the surety was thereby released, notwithstanding the death of the principal in the bond, within the year. 2. An attorney's fee, plead as a lien and counter-claim, being left blank in the answer, and not responded to, the amount of the fee should have been inquired into and deducted, as, by the Code, values are not taken for confessed. It was error in this case not to ascertain i and deduct a reasonable attorney’s fee.
68 Ky. 110Gartin v. Penick (1868)
CASE 19 — PETITION EQUITY APPEAL EBOM MARION CIRCUIT COURT. CITED— 2 Star He's Ev.,p. 271. 12 Johnson, 536; Verplank vs. Sieany, 13 Johnson, 285; 18 Johnson, 544. 16 Peters, 119-20; Tompkins vs. 'Wheeler. Constitution and Form of Government and Proceedings of General Conventions and Synods of the Presbyterian Church. CITED— 7 B. Mon., 481; Gibson, Syc., vs. Armstrong. 3 B. Mon., 258; Shannon vs. Frost. 2 Bush; Watson, Syc., vs. Avery, ¿yc. 14 B. Mon., 56 ; Harper vs. Straws. Constitution and Form of Government of Presbyterian Church. Proceedings of General Conventions and Synods of Presbyterian Churches, and “ Declaration and Testimony ” of Kentucky Synod. 4 Bush; Burnsides vs. Humphreys. 7 Dana, 190; Curd, <Syc., vs. Wallace, Syc.
68 Ky. 160Davis v. Morton, Galt & Co. (1868)
CASE 20 — PETITION EQUITY APPEAL PROM LOUISVILLE CHAKCERY COURT. CITED. 2Parsons on Notes and Bills, p. 375. Story on Conflict of Laws, 4th ed., sec. 575. 6 B. Mon., 599; Bank of Galipolis vs. Trimble. Revised Statutes, sec. 6, chap. 22, 1 Slant., 268. 2 Met., 294; Walker vs. McKay. 1 Met., 112; Graham vs. Tilford Barkley. 2 Mar., 201-2; Bowman vs. Halstead. 3 Mar., 412 ; Ridgeway vs. Collins. 4 Met., 177 ; Taylor vs. Stowell. 7 Mon., 456; Tribble vs. Taul. CITED— Code of Tenn., secs. 1956 to 1967. 1 Met., 317; Kelly vs. Smith. Story on Promissory Notes, secs. 242, 244, 266 to 270. 4 Cowan, 510; 2 Kent’s Com., sec. 39, p. 457. 8 Peters, 361; Bank of U. S. vs. Donelly. 13 Peters, 378-9 ; Wilcox vs. Hunt. 1 Bing. New Cases, 159, 161. Story on Conflict of Laws, secs. 353, 565, 566. Cook’s Rep., 325; Smith vs. Lurey. 6 Yerger, 387-91; Hunt vs. Sandford and Cook. 2 Caldwell’s Rep., 41; Edwards vs. Porter, ¿fc. 10 Yerger, 429 ; Nichols, Hill Co. vs. Bate. 8 Humphrey, 127; Holman, ¿fc., vs. Hobson, ¿fc. 2 Humphrey, 192 ; Van Wick vs. Norvell, ¿fe.
68 Ky. 167Flood v. Flood (1868)
CASE 21 — PETITION EQUITY APPEAL FROM BULLITT CIRCUIT COURT. CITED— Clancy on Husband and Wife, pp. 32, 401. Act of December 20, 1800, 1 M. 4- B., 121. Acts of 1812 and 1819. 2 B. Mon., 370; McCrocklin vs. McGrocklin. 4 Dana, 140; Simpson vs. Simpson. Revised Statutes, secs. 6, 8, chap. 47. 6 Am. Law Reg. (Nov., 1866), page 628; Bowman vs. Worthington. 10 Gray, 222; Albu vs. Wayman. 4 Swaby's 4' Tris tarn's R., 411; Fisher vs. Fisher. 4 Swaby's Tristam's R., 180; Sidney vs. Sidney. CITED— Rev. Stat., Act of 1854, 2 Slant., 29, art. 3, chap. 47; lb., 21. 3 P. Williams, 269; Sidney vs. Sidney. 3 P. Williams, 276; Winter vs. Blount. 4 Ves., 146; Carr vs. Eastbrook. 1 Bosq. Sf Pul. New Rep., 121; Field vs. Serres. 4 Dow. 41 RyL, 11; Lee vs. Thurlow. 2 Barn. Sf Cress'., 547. 13 Ves., 438; Seagreaves vs. Seagreaves. 2 Bishop on Marriage and Divorce, Ath ed., secs. 705, 717, 719.
68 Ky. 171Haddix, adm'r v. Chambers & Little (1868)
CASE 22 — MOTION APPEAL PROM BREATHITT CIRCUIT COURT. CITED— Revised Statutes, sec. 11, chap. 97. ' CITED— Rev. Stat., sec. 2, 2 Slant., 400, and sec. 11, p. 657. 15 B. Mon., 134 — 5; Spillman Duff vs. Smith.
68 Ky. 174Forwood v. Dehoney (1868)
CASE 23 — PETITION EQUITY APPEAL FROM SCOTT CIRCUIT COURT.
68 Ky. 176Harper v. Harper (1868)
CASE 24 — PETITION EQUITY APPEAL FROM WOODFORD CIRCUIT COURT. CITED— 1 Phillips on Evidence, 559. 7 Ves., 211; McCollam vs. Pleam. CITED— 3 Dana, 173; Perkins vs. Drye. 5 Liltcll, 84; 'Skinner vs. Miller. 7 Mon., 635; Davis vs. Phelps. 3 J. J. Mar., 353 ; Edrington vs. Harper. 2 Phillips on Evidence, 603. 6 Halst., 174-7 ; Perrine vs. Churman. 19 Johnson, 53 ; Petsy vs. Christy, 2 B. Mon., 71-2-3 ; Cook vs Colyer's admlr.
68 Ky. 181Stephens v. McCormick (1868)
CASE 25 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. CITED— 2 Bibb, 507; Gray vs. Moffat. 1 M. H. Digest, p. 44, Act of 1796; 2 M. S¡- B., 1125. 5 B. Mon., 475; Gregory vs. Ford. 4 B. Mon., 575; Shemmett vs. Taylor. 5 B. Mon., 403; Murray vs. Fishback. 8 B. Mon., 186; Gill vs. Fauntleroy. 10 B. Mon., 171; Phillips vs. Pope. Act of 1814, M. <y B., 1144. Act of 1840, Loughborough’s Digest, 413. Revised Statutes, chap. 63, 2 Stant., 123-4. 2 Alar shall, 457; McClain vs. Gregg. 5 Dana, 256; Oldham vs. Henderson. CITED— 5 J. J. Alar., 571; 2 Marshall, 19; 1 Marshall, 120. Rev. Slat., chap. 63, secs. 3, 5, 2 Slant., pp. 123-4.
68 Ky. 183McDaniel v. Barnes, White & Co. (1868)
CASE 26 — PETITION EQUITY APPEAL FROM MOHTSOMERY CIRCUIT COURT. CITED— 1 Bibb, 334; Bacon vs. Brown. 5 Monroe, 253 ; Blanton vs. Rice. 2 Parsons on Contracts, p. 146, and note a. American Leading Cases, pp. 276, 290. 4 Dana, 445, 450; Steele vs. Taylor. ' CITED— Civil Code, sec, 670. 4 Monroe, 418 ; Brown vs. Vance's ex'rs. 5 Monroe, 268-9; Hunter vs. Gatewood. 4 Met., 281; 3 Met., 246. 7 Dana, 92 — 3 ; Allison vs. Allison. 14 B. Mon., 321; Allen vs. Shelby. 18 B. Mon., 127; Todd vs. Luc/cctt. 7 J. J. Mar., 225; Garner os. Beatty. 5 Mon., 253 ; Blanton vs. Rice.
68 Ky. 187Mason v. Mason (1868)
1. Second appeal in same case between same parties. — All the errors and irregularities appearing in the original record, and which could have been corrected by the first appeal, must, on the second appeal, be regarded as settled and adjudicated, and can afford neither a cause for a review, or for a rehearing in the court below, nor for correction on the second appeal in the Court of Appeals. 2. The judgment of the circuit court having been affirmed by the Court of Appeals, and a petition for a new trial having been dismissed by the circuit court, on the appeal from the judgment of dismission, the Court of Appeals will only investigate such of the assigned causes for a rehearing as were not necessarily precluded by the former adjudication and affirmance. 3. After objecting to the filing of an answer, because verified before the clerk of a circuit court in Missouri, the plaintiffs offered to reply to it, and filed an amended petition, and also waived any objections to a subsequent answer of the same party. Any one of these acts should have been deemed a waiver.of objections to the first answer; and especially, as the exception was not taken to it until the submission of the case for trial. 4. A reply to an answer which was not a cross-petition, and which did not set up a counter-claim or set-off, was properly rejected. 5. On a petition for a review or a rehearing, the evidence offered being entirely parol and cumulative to that presented in the original case, involving the credibility of the conflicting recollection, character, opportunity, &c., of those who testified — this was insufficient, in every aspect of the case, to authorize a review or rehearing. 6. A defense, of which the defendants must have had knowledge, if true, which was not relied on or presented in the first trial, cannot be made available on petition for a review or a rehearing — the alleged discovery of evidence to sustain such a defense will not authorize a re-trial. 7. The adverse parties to a judgment in favor of an infant, whose claim was prosecuted to judgment by a guardian ad litem, cannot object to the judgment against them, because the summons was not served on the infant, who was a co-defendant with them in the original suit, and was made a defendant by them on their petition for a review and rehearing. 8. If it was technically erroneous to permit a cross-suit by an infant, by his guardian ad litem, which is by no means certain, after issue and judgment in his behalf, it is too late to object, because the infant was not served with a summons. 9. The suspension of execution on a judgment in favor of an infant, until statutory guardian is appointed, did not injure the party against whom the judgment was rendered, as he could pay the money into court.
68 Ky. 199Perrit v. Crouch (1868)
CASE 28 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Act of March 2, 1860, Myers' Sup., 434. 2Tidd, 945; Tomlin's Law Die., “Costs." 1Littell, 274; Heard vs. Faris. 8 Dana, 190 ; Hart vs. Flynn. 1 Bush, 348; Riley vs. Sharp. 2 Bush, 532 ; Hall vs. Hiles. 2 Duvall, 351; Broms vs. Commonwealth. 4 Mon., 155; Baugh vs. Ramsey. 3 J. J. Mar., 577; Williams vs. Beazly. 3Mon., 167 ; Me Chord vs. Ford. 1 J. J. Mar., 499; Fleming vs. Campbell. 3 Mon., 149; Lampton vs. Haggard. 4 Mon., 108; Burnett vs. Commonwealth. 2 J. J. Mar., 531; Bell vs. Barnett. 7 J. J. Mar., 106 ; Neal vs. Durrett. 1 Dana, 419; Canterberry vs. Commonwealth. Revised Statutes, 1 Stunt., 273. 1 Bush, 102; Dillingham vs. Mudd. 1 Mon., 82; Ormsby vs. Johnson. 9 B. Mon., 76; Iiiston vs. Hildebrand. 17 Geo., 414-15; Walker vs. Hunter. 11 Geo., 628-35; Mitchum vs. Slate. 10 Geo., 521-3; Berry vs. State. 41 N. H., 317; Tucker vs. Henniker. Hilliard on New Trials, chap. 10, secs. 6, 9, 10, 13, 42. 18 B. Mon., 295; Luttrellvs. Maysville and Lex. R. R. 2 Bush, S3 ; Commonwealth vs. Shields. Amr. Law Reg., Oct., 1868, p. 729; McDaniels vs. McDaniels. Common School Law, art. 10, Myers' Sup., 456-7; lb., 434, 439, 441, 457. CITED— Rev. Stat., secs. 4, 8, chap. 42, 1 Stant., 565. 4 Met., 114; Barnes vs. Turner. Myers' Code,p. 362, note a; 355, note f. Rev. Stat., sec. 13, chap. 25, 1 Slant., 288. 1 Met., 396; Brandies, Sfc.,vs. Stewart. 1 Monroe A Harlan's Digest, p. 218. Hardin, 588; Taylor vs. Giger. 3 Mar., 396.; 3 Mon., 415; 3 /. J. Mar.,.393. 17 United States Digest, p. 419, sec. 6 ; 3 Sneed, 681. Constitution of Kentucky, sec. 37, art. 2. 1 Met., 649; Gill vs. Johnson. 3 Met., 61; Lee vs. Wade. Civil Code, sec. 120, and notes.
68 Ky. 206Slater v. Sherman (1868)
CASE 29 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CASE 00 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— 18 B. Mon., 905 ; Todd vs. Wickliffe. Story's Equity, 1380, 1381. 1 Duvall, IQ', Hutchinson vs. James. 17 B. Mon., 42; Davenport vs. McCampbell. 2 Mar., 293 ; Barbee vs. Watts. 4 Met., 59 ; Ward vs. Crotty, ¿pc. 4 Met., 84; Maraman vs. Maraman. 24 Vermont, 298 ; Bacon vs. Bacon. 19 Vermont, 410; Porter vs. Rutland. 2 Barb., 352; Blanchard, SfC., vs. Blood. 2 Roper, 152-156. Rev. Stat., secs. 1, 2, 3, art. 3, chap. 36. 4 Mon., 322; Lock Sf Fleming vs. Coleman. 4 Bibb, 166; Lillard vs. McKee. 4 Met., 143 ; Hurdt vs. Courtenay. Rev. Slat., sec.- 2, chap. 40; art. 18, chap. 28; art. 23, chapter 27. Civil Code, sec. 345. 2 Greenleaf on Ev., sec. 293, pp. 80-1; Lb., secs. 253, 265, 267. 2 Phillips on Ev.,pp. 203, 288; chap. 14, p. 86. 3 Amr. Law Journal, pp. 267, 313. Constitution of Ky., art. 4, sec. 17, art. 13. 17 B. Mon., 697 ; Bolts vs. Williams. CITED— Revised Statutes, sec. 2, chap. 40. Civil Code, secs. 345, 1, 369, 125, 163, 374. MS. Opn., 1857; Walter vs. Eddy. 3 Bibb, 92; Lillard vs. Whitaker. 3 Mon., 243 ; Mason vs. Brown. 2 Littell, 233 ; Owens vs. Star. 1 Chilly (11 til Amr. ed.), secs. 5, 25, 26, 519. Stephens'1 Pleading, rule 1st, secs. 139, 160, note 19. 10Ih Wendell, 102; 11 John., 132. 7 Comen, 35; 1 Bald., 58. 2 Greenleaf ’s Ev., sec. 96. 12 Viner’s Abr., 159; 1 Mass., 58. 19 Johns., 319 ; Lee vs. Woolslcy. • 1 Bibb, 428; Rochester vs. Anderson. 1 Leigh, 581; Bowling vs. Commonwealth. 3 Met-., 435-6; Denton vs. Logan. 2 Met., 151; Ghilcls vs. Drake. 16 B. Mon.’, 583; Knoutz vs. Brown. 2 Met., 558; Letton vs. Young. 4 Littcll, 118; 2 Marshall, 365. Story's Eq., secs. 353, 356, 362, 369. J. J. Mar., 555; Dyne vs. Bank of Kentucky. 2 Bush, 76.; Lowry vs. Fisher. 1 Bush, 86 ; Foster vs. Grigsby. Gowp., 436; Gadogan vs. Kennedy. 14 Mass., 245; Bridge vs. Eglestone; lb., 456. 9 B. Mon., 514; Trimble vs. Ratcliffe. 1 Met., 335; Cable vs. Cable.-2 B. Mon., 345; Love vs. Lewis. 2 Met., 207 ; Todd vs. Hartley. 4 Met., 143-5; Hurdt vs. Courtenay, 6¡-c. 4 Met., 89; Maraman vs. Maraman. 4 Met., 61; Ward vs. Crolty, tj’C. 18 B. Mon , 906 ; Todd vs. Wickliffe.
68 Ky. 216Turner, Wilson & Co. v. Browder (1868)
1. The drawer of a bill of exchange, drawn and accepted for his benefit, is liable to the acceptor for the amount paid thereon by him; but— 2. An accommodation drawer is not liable to an acceptor with notice that the drawer had no beneficial interest in the bill. 3. A joint drawer and an indorser are competent, witnesses, in a suit by the, acceptor of a bill, to prove that the other joint drawer had no beneficial interest in the bill; that he was a mere accommodation drawer, and that the acceptor was so notified before he accepted the bill. i. The legal presumption is, that the acceptor had funds of the drawer, nothing else appearing than the bill itself. 5. When bills are drawn on letters of credit to enable the drawer to purchase and ship produce, the presumption that the acceptor' has funds is rebutted, and the drawer becomes the primary debtor, and, therefore, liable to acceptor for his advances; yet 6. When the acceptor knows that one of the drawers is not interested in the produce, and that he has merely loaned his name to give the bill currency, the acceptor has no more right to look to him than if he had merely indorsed the bill.
68 Ky. 221Commonwealth for Peters v. Bosley (1868)
CASE 31 — PETITION ORDINARY APPEAL PROM WASHINGTON CIRCUIT COURT. CITED— 2 Met., 428; 3 B. Monroe, 471. Revised Statutes, 1 Slant., pp. 493, 494. 7 /. /. Mar., 624; Carlisle vs. Carlisle. 6 Mon., 27 ; Pepper vs. Commonwealth. 9 B. Mon., 35; Gear heart vs. Tharp. 2 Met., 500 ; Board vs. Helm. [Brief not in record.]
68 Ky. 225County Judge v. Shelby Railroad (1868)
Railroad tax, imposed by vote, in a defined boundary in Shelby county. — The Shelby Railroad, chartered in 1852, after being partially graded, by the exhaustion of funds subscribed by the stockholders entitled to conditional interest on their stock, the work was hopelessly suspended, until an amended charter was granted in 1869, at the instance of citizens of that portion of the county in which the road is located. This amendment authorized a subscription of as much as $300,000 additional stock by the citizens within a defined boundary of the section of the county through which the road runs, and also provided that the original stockholders should not have the conditional interest on their stock, as provided in the original charter. A majority wjthin that boundary voted for a subscription of $300,000. The county judge, in that event, was dire<sfced by the amended charter to subscribe the amount voted for, to be collected by a tax on the tax-payers within the prescribed boundary, to be levied as their revenue taxation is levied. The county judge refused to make the subscription, and appealed from the judgment of the circuit court requiring him to do so, on mandamus. Held — -First. That so much of the amendment as requires the former stockholders to waive interest, is constitutional; and, Second. That the tax only on a section of the county is constitutional. The Legislature may create a district for the purpose of taxation or assessment, without reference to existing civil or political districts.
68 Ky. 230Ferguson v. Landram (1868)
1. To avoid the draft in 1864, a large portion of the people of Gallatin county met at the county seat and resolved to raise twenty thousand dollars as a military fund, to be distributed among those who should thereafter volunteer, in addition to the bounty offered by the Federal Government, and appointed a committee to borrow the money, and to obtain an act of the Legislature to authorize the county court of said county to issue bonds and to levy a tax to reimburse the money so expended. The money was borrowed; the volunteers obtained; the draft prevented; the necessary act of the Legislature procured; the bonds issued, and the tax was levied by the county court. In Ferguson, &;c., vs. Landram, $‘c., 1 Bush, 548, this court held the said act of the Legislature, authorizing the issual of the bonds and levy of the tax, to be unconstitutional and invalid as to those who did not participate in procuring its passage, and have never ratified it, and have received no benefits therefrom; but that all who participated iu procuring its passage, have acquiesced in or approved it, or have been recipients of benefits under it, should not escape responsibility. Note. — Judge Robertson held the act above referred to constitutional; but the majority of the court held it to be unconstitutional. 2. On injunction against collecting the tax, the former decision of this court is adhered to, and the persons therein held responsible are now held, liable to the tax, and as being estopped from denying the constitutionality of said enactment. In procuring the money, and obtaining with it the volunteers, such parties violated no law of morality or of the Government; their contract was not void for want of consideration or for illegality; but it is the means by which the sum for its reimbursement is to be raised that they assail. 3. Parties are estopped from denying the constitutionality of a local statute by participating in the procurement of its passage; by ratifying, acquiescing in, or approving it after its passage, and by becoming recipients of benefits under it; and all such persons are held to be liable to the tax authorized by such enactment, although it is unconstitutional and invalid as to all other persons. (4 Kent, Comstock’s ed., note 4, s. p. 261; 3 Hill, 219; Moran et al. vs. Commissioners of Miami County, 2 Black, 122.)
68 Ky. 243Louisville & Nashville Railroad v. Warren County Court (1868)
CASE 34 — PETITION EQUITY APPEAL EROJI warren circuit court. CITED— Act of February, 20, 1864, Myers’ Supplement, 480-81, secs. 1, 8. 7 Dana, 342, 343; Johnson vs. Commonwealth. 3 Bush, 648; Applegate, Syc., vs. Ernst, 4’C- 1 Bush, 548; Ferguson, ¿ye., vs. Landram, Syc. Revised Statutes, 2 Stanton, 248, 261. Act of June 3, 1865, Myers’ Sup., 376. ClTEDg- Revised Statutes, sec. 2, art. 3, chap. 83, 2 Stanton, 258. Act of February, 16, .1858, Myers’ Sup., 394, sec. 3; lb., 480,376. Constitution of Kentucky, sec. 37, art. 2. 2 Met., 150; Chiles, vs. Drake. 2 Met., 168; Lou. and Oldham T. P. R. Co. vs. Ballard. 2 Met., 221; Phillips vs. Cov. and Cin. Bridge Co. 3 Met., 576; Johnson vs. Higgins. Session Acts 1865, 2 vol., chap. 1753.
68 Ky. 248Payne v. Powell (1868)
CASE 35 — PETITION EQUITY APPEAR PROM MEADE CIRCUIT COURT. CITED— 4 Mon., 503 ; Cook’s adrn’r vs. Hendricks. 2 Vern., 473 ; /Clavering vs. Clavering; 1 Br. P. C., 112. 1 Atk., 625; Broughton vs. Broughton. 1 Ves., 314; Johnson vs. Smith. Littell’s S. G., 212; 1 Vern., 100 and 464. 2 Greenlcaf on Ev.,pp. 313, 314, sec. 297. MS. Opn., June 27, 1868; Robinson vs. Robinson’s executors. CITED— Bouvier’s Law Die., title “ Donatio.” 2 Blackstone, sub-div. 8, s. p. 514, 515, and note. 4 Met., 99 ; Knott’s adm’r vs. Hogan. 5 Mon., 170 ; Waldrus’s adm’r vs. Dixon. 4 B. Mon., 538; Brown vs. Brown’s adm’r. 5 Littell, 12 ; Duncan’s adm’r vs. Duncan. 3 Littell, 276; Banks’s adm’r vs. Marksbury. 6 Mon., 73; Inlaw, <SfC., vs. The Commonwealth for Thomas. 4 J. J. Mar., 139'; Butler’s adm’r vs. Scofield.
68 Ky. 253Rau & Rieke v. Boyle & Boyle (1868)
CASE 36 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— 5 Watts Serg., 315; Glippengcr vs. Hepbaugh. 7 Waits, 152; Gulden vs. Hatzfield. 7 J. J. Marshall, 640; McGill’s adm’r vs. Burnett. 6 Dana, 306 ; Wood vs. McCann. 4 Dali., 299 ; Mabin, survivor, vs. Coulon. 15 Peters, 40; liousman vs. North Carolina. 2 H. Bla., 379 ; Mitchell vs. Cockburn. 1 Park, on Ins.,p. 8 (N. P.); Sullivan vs. Greaves. 2 Bos. S)~ Pul., 372 ; Aubert vs. Mase. 2 Bibb,---; Bowman vs. Freeman. 4 Bibb, 441; Craig vs. Miller. 4 Littell, 10; Halbert vs. Peering. 1 Dana, 594; Wickliffe vs. Clay. 8 Dana, 1; Mercum vs. Hereford. 7 B. Mon., 547 ; White vs. Bush. MS. Opn., 1857 ; Hamilton vs. Riley. 4 Mon., 313 ; Morton vs.' Smith. 4 J. J. Mar., 332 ; Ojfutt vs. Stout. 2 Wallace, 45; The Toole Company vs.. Norris. 1 Bush, 270; Hutchin vs. Gibson. CITED— 14 B. Mon., 321; Allen's ex'rs vs. Shelby. 18 B. Mon., 128; Todd vs. Luckett. 2 Wallace, 70; Brooks vs. Martin. 2 Bos. cp Pul., 3 ; Tenant vs. Elliot. I Bos. <$f Pul., 79; Farmer vs. Russell. 7 Vesey, 473; Thomson vs. Thomson. 17 Howard, 232; McBlair vs. Gibbs. Civil Code, subsec. 6, of sec. 670, secs. 30, 31, and Myers' notes. 17 B. Mon., 603; Carpenter vs. Miles. 3 Dana, 158; Williams vs. Beard. II B Mon., 100; Craddock vs. Thornton. 16 B. Mon., 182; Nixon vs. Jack. 3J. J. Mar., 106 ; Miller vs. Field. 5 B. Mon., 57 ; Clark vs. Robinson. 1 Met., 576 ; Smith's adm'x vs. Northern Bank of Kentucky. 2 Met., 518; Chenoweth vs. Fielding. 1 Duvall, 311; Spalding vs. Bull. 1 Duvall, 207; Price vs. Caperton. Amendment of March 2, 1860, to sec. 670 of Civil Code. 3 Bosw., 560; Cummings vs. Morris. 2 Met., 127 ; Lytle vs. Lytle. 2 Crompton M. Sp R., 588; Raymond vs. Fitch. 1 Peters, 213 ; Comegys vs.. Vase.
68 Ky. 271Rodes v. Patillo (1868)
Currency which was recognized as money by the laws and military authority of the Confederate States, must be regarded as a valuable and not as a vicious consideration in contracts made within the Confederate States; and such contracts will be enforced. (Martin vs. Hortin, 1 Bush, 629.)
68 Ky. 273Thomas v. Capps (1868)
1. Questions arising on. wills, made before the Revised Statutes took effect, must be determined by the pre-existing law. (JRemsed Statutes,' sec. 26, chapter 106.) 2. Lands acquired apter marino the will, and conveyed by testator to one op his legatees. — Testator, by will made in 1850, devised all the land he then owned to his wife for life, and, after her death, to be equally divided between his eleven grandchildren. He thereafter, by purchase, acquired other lands, which he conveyed to one of the eleven grandchildren. Surviving his wife, testator died iu i 1864. Held — That, by the conveyance of the after-acquired laud, it was not testator’s intention to make an advancement in satisfaction of, nor to adeem, the devise to that grandchild, and that she took an equal part under the will. 3. The intention of the testator is sufficient to rebut or confirm any presumption which may arise, and that intention may be determined by parol evidence. (2 Williams on Executors, 1145.)
68 Ky. 277Grider v. Rodes (1868)
1. Undrawn salary of a deceased Congressman. — Hon. Henry Grider died September 7th, 1866, ¡ifter taking his seat as a member of the Thirty-ninth United Stales Congress, leaving undrawn, of his compensation as such member, three thousand one hundred and twenty-seven dollars and six cents, which amount, under a resolution of Congress, was drawn by his widow, and claimed by her in her own right. At the suit of the heirs of said decedent, the circuit court, deciding that said fund belonged to said Grider’s estate, and not to his widow, rendered judgment against her accordingly. On the appeal of the widow that judgment is affirmed by an equal division of the Court of Appeals. 2. Compromise by an administrator. — By an antenuptial marriage contract the widow was entitled to receive from her husband’s estate property to enable her to resume housekeeping, farming, &c. Instead of delivering to her property in kind, the administrator agreed to sell the property, and to pay her a stipulated sum. There being no imputation of fraud, that agreement is sanctioned and enforced.
68 Ky. 301Commonwealth v. Pointer (1869)
1. Tlie city court of Henderson, by act of 1867, has exclusive jurisdiction of all pleas of the Commonwealth except cases of felony. This act does not repeal or take from the Henderson circuit court jurisdiction of the lesser grades of the offense included in an indictment for malicious striking and wounding with intent to kill. ( Crim. Code, secs. 11, 259.) 2. The general law controls local statutes, unless there is manifested in the latter a special intent to repeal the general lawr.
68 Ky. 304Gere v. Cushing (1869)
1. A lumberman having a lien on a lease and stable for materials, under tho “Mechanics’ Lien Law” of February 17, 1858 (Myers' Supplement, 300), did not waive his lien by talcing a bill, on which no one became liable to him, except his original debtors. This was not taking such a security as is contemplated by section 7 of said act. 2. A bona fide mortgagee, for a valuable consideration, must be regarded as a bona fide purchaser within the letter, spirit, and meaning of section 12 of the “Mechanics’ Lien Law” (Myers’ Supplement, 305); and such mortgagee, without express or constructive notice, given according to the provisions of said statute, cannot be affected by the liens created by said enactment. (Snyder vs. lliil, 2 Dana, 204; Halbert, §c., vs. McCulloch, 3 Met., 456.)
68 Ky. 309Watts v. Commonwealth (1869)
CASE 3 — BAIL BOND APPEAL PROM ROCKCASTLE CIRCUIT COURT. CITED— Revised Statutes, 2 Stanton, sec. 12, p. 342. 2 Duvall, 437 ; Moore vs. Hagan. CITED— Revised Statutes, sec. 12, art. 1, chap. 91. 3 Bush, 14; Rice os. Commonwealth.
68 Ky. 311Commonwealth v. Campbell (1869)
1. A judgment sustaining a demurrer to an indictment, simply charging the accused with- the offense of heaping a tippling - house for three consecutive months, is such a final judgment as will give the Court of Appeals jurisdiction. The judgment is, in effect, a dismission of that indictment, and exonerates the defendant from trial for the act , therein charged, and, therefore, final and reversable. 2. “Keeping a iippling-kouse" imports an unlawful selling of spirituous liquors by retail, without any license, which is a statutory offense, thus sufficiently defined, for all the purposes of legal certainty. [Commonwealth vs. Harvey, 16 JB. Mon., 2.) The allegation as to the length of time is merely superfluous.
68 Ky. 312Creekmore v. Commonwealth (1869)
CASE 5 — BAIL-BAND APPEAL PROM OLDHAM CIRCUIT COURT. CITED— Crim. Code, secs. 61, 76, 69, 70, 71, 72, 73, 74, 75, 395,, 67, 68. Revised Statutes, sec. 1, chapter 45; 1 Stanton, 584. 1 Duvall, 199; Commonwealth vs. Roberts. 2 Bush 4; Branham vs. Commonwealth. CITED— 2 Bush, 3; Branha?n vs. Commonwealth. Criminal Code, secs. 80, 61.
68 Ky. 316Commonwealth v. Tanner (1869)
1. An indictment for an assault, with a felonious intent to rob or to commit robbery, is sufficient, if the charge is laid in the words of the statute under which it is found. 2. Where the words of the statute are descriptive of the offense, the indictment should follow the language, and expressly charge the described offense on the defendant, or it will be defective. (1 Whar. Amr. Crim. Law, sec. 3(14.) 3. Judgment of the circuit court, in arresting judgment and dismissing the indictment for robbery, being reversed by the Court of Appeals, a new trial must be awarded by the circuit court.
68 Ky. 320Nichols & Co. v. Burton (1869)
CASE 1 — PETITION ORDINARY APPEAL EROM SCOTT CIRCUIT COURT. CITED— 3 .Duct. N. Y. Rep., 249. 2 Hilton's N. Y. C. P. R.; Benson vs. Paine. Sill 4' Denio's N. Y., 392; Moran vs. Vrcdenburgh. 7 Miss., 604; Little vs. Davidson. 1Walls Sf Scrg., 334. 9 Port., 98 ; Lumpkin vs. Phillips. 1 Mil., 492; Davidson vs. Kelly. 1 B. Mon., 200; Doniphan vs. Gill. 2 Rich., 601; Gardner vs. Ilurst. CITED— 1 B. Mon., 200; Doniphan vs. Gill. 1 Bibb, 41; Finnell vs. Martin. Monroe Harlan's Digest, p. 17, and cases there referred to. 5 John., 68 ; Toby vs. Baker. 3 J. J. Mar., 195; Bank of Commonwealth vs. Letcher. Civil Code, sec. 39.
68 Ky. 325Commonwealth v. Fraize (1869)
An indictment, charging that the defendant “was the owner, occupier, and controller of a house and ten-pin alley, at which games were played and money and other things bet, won, and lost, by his permission; and that he and others played at such games, and money and other valuable things were bet, lost, and won thereon,” contains all the essential averments to show that the statute has been violated; and it should reasonably be inferred that the defendant knew not only of the petting up of such contrivance, but also of the betting, unless it appears otherwise. {Rev. Slat., secs. 6 and 7, chapter 42.)
68 Ky. 327Green v. Commonwealth (1869)
1. Keepers of billiard-tables, for hire and profit, may be indicted and fined any sum not exceeding one hundred dollars, under the act of February 22, 1864 (Myers’ Supplement, 241), for suffering a minor, without the written permission of his parent or guardian, “to play any game thereon, either by betting or not betting.” It is not necessary to allege in the indictment that the minor bet on the game. 2. Said act of 1864 is not repealed by the 8th section of “An act to amend and reduce into one all laws relating to billiard tables and the tax thereon,” approved March 6, 1868. Said act of 1868 does not embrace either private tables for domestic use, or the act of playing on public tables by minors without authority, as prescribed by said act of 1864.
68 Ky. 330Morrow v. Slaughter (1869)
CASE 10 — PETITION EQUITY APPEAL EltOM WOODFORD CIRCUIT COURT. CITED— 7 B. Mon., 489-90; Gibson, Sfc., vs. Armstrong. Revised Statutes, sec. 5, chap. 14, 1 Stanton, 237. M. B.'s Digest, 1349. 3 B. Mon., 257; Shannon, SfC., vs. Frost, d)-c. 11 B. Mon., 288; Berryman vs. Ruse. 1 Met.., 355; Thornton vs. McGrath. 1 Bibb, 567 ;•-vs. Harris. 7 Mon., 544; Pool vs. Young. 3 Dana, 157; Frogg's ex'r vs. Long's adm'r. 13 B. Mon., 197, and cases cited. CITED— 2 M. B.'s Digest, 1349, Act of 1824. Revised Statutes, 1 Stanton, 237. Hill on Trustees, top pages 329, 157. MS. Opin., 1869; Hodge vs. Berry Thornton. 9 Smith's N. Y., 69; Phelps vs. Pond. 14 N. Y. (4 Hernán), 380; Owens vs. Missionary So1 cicty. 8 Aid., 551; Wildman vsl Baltimore.
68 Ky. 334Morton v. Ragan & Dickey (1869)
1. Possession must accompany the title in sales of movable property, or the sale will be per se fraudulent and void in law as to subsequent purchasers and creditors of the vendor, even though the contract contains a stipulation that the seller is to retain possession until a future day. (JBrummel vs. Stoclclon, ¿ye., 3 Dana, 135; Dobbins vs. Oldham, 1 Duvall, 28.) 2. But this rule does not extend to property which is not susceptible of delivery, as a growing crop, which could not, without destroying it, be removed at the time. (Cummings vs. Griggs, <ye., 2 Duvall, 87.) 3. A sale of movable property, which is exempt from execution, is not constructively fraudulent, because the seller remained in possession. As between the purchaser and attaching creditors, the purchaser is entitled to such property; but otherwise as to such property as is not exempt from execution.
68 Ky. 337Youse v. Forman (1869)
1. Youse died in 1865, without descendants. It was known that, for many years, he had kept a holographic will. Immediately after his burial, repeated but ineffectual searches wefe made for his will. Some months thereafter a paper in his hand-writing, with his signature cut or torn off, which was not there at the time of the previous searches, was found in his desk, where he kept his papers, by a party who was a legatee, and interested in its establishment as his will. The evidence did not establish whether this paper had been in friendly or unfriendly hands, nor whether it had been mutilated by decedent, or some other person; but it was proven that, a short time previous to his death, he had requested an attorney to come and stay all day with him, as he “wanted to change, or make a change, in liis will;’’ and that those who were interested as against this paper being established as his will had no opportunity of getting possession of it, and mutilating and returning it to the place where it was found. Held — That if the paper, whilst absent from the desk where it was found, was in a friendly possession, all inferences of unfairness are met, and the cutting or tearing off the signature must be regarded as the act of decedent; that if he out or tore off his signature, the law presumes it to have been done with intention to revoke; and that this presumption is fortified and strengthened by the extrinsic evidence, and that the will was revoked by the decedent. 2. The signature of the decedent remained appended to a codicil written on the margin of the paper from which decedent’s signature had been out or torn off. This codicil is held to have been revoked by, the cutting or tearing off the signature from the body of the will. 3. The revocation of a will revokes all codicils appended to it, and especially all codicils which depend upon it for interpretation or execution. 4. A codicil, depending upon the body of the will for interpretation or execution, cannot be established as an independent will when the will itself has been revoked. 5. The party applying for the probate of a codicil, as an independent will, has the burden of proof, and must show that the deceased intended that it should operate as his will. 6. If the testator cut or tore off his signature to his will, the legal presumption that he did so with the intent to revoke, may be fortified or rebutted by'extrinsic evidence. 7. Revoking a will with intent to make another, the failure to do so, does not revive the revoked will. 8. Where a testator does an act of cancellation or mutilation, with a view of having his will immediately changed or altered, where the act of cancellation and reconstruction are intended as part of the same transaction, and the reconstruction or republication of the will is not perfected, then the acts of cancellation are also to be diregarded as incomplete, because of the failure of the other essential acts.
68 Ky. 349Stone v. Riddell (1869)
1. Commonwealth Attorneys have no vested interest in forfeited recognizances until reduced to judgment, when, by law, they are entitled to thirty per cent, of the judgment, which cannot be remitted by the Governor. 2. The act to fix the fees of county attorneys, of February 21, 1868 (Session Acts, page 23), gave to county attorneys fifteen per cent, of all judgments on forfeited recognizances, in cases whore they prosecuted the accused before the committing court, and aided the Commonwealth’s Attorney in recovering judgment on the forfeited recognizance, to be deducted from his per centngo. As said act took effect immediately, on such judgments thereafter rendered, the comity attorney is entitled to his per rentage, although the default occurred before the passage of such enactment.
68 Ky. 351Wills v. Walters (1869)
1. The Legislature has constitutional power to regulate by statute the relative rights and responsibilities of the proprietors of inclosed land, and the owners of stock going at large or kept in adjacent inc-losures, as is done in chapter 50 of the Revised Statutes, and the act of 1863 amendatory thereof. {Myers’ Supplement, 212.) 2. It was intended, In enacting said statutes on the subject of inelosures, to provide a just and reasonable protection for the rights of owners of inclosed land and of stock, and to limit the right of redress for injuries, in either class, to their own compliance with the law, whether it was a division fence or not.
68 Ky. 353Clark v. White (1869)
CASE L5 — APPLICATION FOR FERRY PRIVILEGES APPEAL FROM ESTILL CIRCUIT COURT. CITED— Rev. Slat.,'secs. 1, 4, 5, 8, 1 Stanton, 538. Civil Code, secs. 20, 21, 32, 13. 5 Dana, 100; Churchill vs. Grundy. 1 Bibb, 495; A J. J. Marshall, 539. 3 Marshall, 321; Gibbons vs. Pollard. CITED— 5 Dana, 101; Churchill vs. Grundy. 3 J. J. Mar., 669 ; Lytle vs. Breckinridge. 1 Duvall, 139; R. and L. T. Road Co. vs. Rogers. 1 Bibb, 495; Lawless vs. Rees. Rev. Stat., sec. 16, “ Ferries,” 1 Slant., 542. 16 B. Mon., 699; Newport vs. Taylor.
68 Ky. 358Griffith v. Burton (1869)
CASE 16 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— 4 Met., 238 ; Radford vs. Chamberlin. 1 Duvall, 75; Bacon vs. McDowell. Act of August 23, 1862; Myers' Sup., 426.. Revised Statutes, chapter 86. CITED— Civil Code, sec. 90. Rev. Stat., 2 Stanton, 312-14; Acts of 1854 and 1858. 4 Met., 238; 1 Duvall, 75. 1 Duvall, 349; Thornton vs. McGrath. 1 Bush, 607; Pettit’s adm’r vs. Johnson. 2 Bush, 441; Cromwell, SfC., vs. Mason’s heirs, SfC. 3 Bush, 484; Paul vs. Paul and wife.
68 Ky. 362Kriel v. Commonwealth (1869)
1. When the State makes out an unlawful homicide with a deadly weapon, and identifies the accused as the perpetrator, it has shown all that is essential to conviction. 2. Necessary self-defense, or misadventure, or insanity, moi'iil or mental, as an excuse, comes as a defense. 3. Sanity is always presumed by law. This universal presumption can only be rebutted by satisfactory evidence; that is, the jury must be satisfied from the evidence, whether produced by the one side or the other, that the perpetrator of a homicide, not in necessary self-defense, nor by mere unintentional accident, was irresponsibly insane when the deed was perpetrated; for evidence, merely raising a doubt as to mental soundness, would not be sufficient to repel the legal presumption of soundness. 4. It is the legal duty of all juries t,o convict the perpetrator of an unjustifiable and, prima facie, inexcusable homicide, unless the evidence rationally convinces them that, at the time of the killing, the perpetrator was laboring under snob a state of mental aberration and disease as to deprive him of a knowledge of right and Wrong; or if he knew this, still to take from him the moral power to resist his morbid inclination to its perpetration. 5. A mere doubt of sanity, however rational, is wholly insufficient to rebut this legal presumptiou, and can never be a justification to a jury to acquit; whilst, on the other hand— 6. If the preponderating evidence convinces the jury that the perpetrator was in such a mentally diseased condition as to destroy his free agency, they should not'convict merely because they might entertain a rational doubt as to this. The presumption of .sanity must be overcome by a preponderance in the prisoner's behalf. 7. A rational doubt as to whether a homicide had been committed, or as to the perpetrator, should very rationally load to an acquittal; but if acquittal should result from a mere doubt of sanity, then the legal presumption of soundness would amount to but little, if anything. 8. A mere doubt of sanity has never entered as an element into that rational doubt which should produce acquittal. 9. Mental or moral insanity, however recent, to such an extent as to destroy free agency and moral responsibility, on being established by satisfactory evidence, will excuse the prisoner. 10. Malice is an essential ingredient in murder; but this, too, is to be presumed from the violence and wantonness of the assault, and character of the weapon used. 11. When sudden passion has been produced from reasonable cause, this will repel the presumption of malice, and palliate the offense to manslaughter: and— 12. Our Criminal Oode gives the prisoner the benefit of a rational doubt as to which grade of offense has been committed. 13. Drunkenness from mere social hilarity, though wrong in the perpetration, may bo of such a character, and to such a degree, as to show that the mind was incapable of preconceived malice or intentional homicide, and reduce the homicide to manslaughter; but as this state of mind is superinduced by the wrongful act of the perpetrator, a due regard for the interest of society, and the personal security of every one, precludes it from being a satisfactory excuse, and an entire exemption from punishment. 14. Excuse, because of drunkenness, is at all times to be received with great caution, and, because it is so easily perverted, and the danger so great of revenge, for real or imaginary cause of pre-existing offense or malice, under such cover. 15. “If the jury have a reasonable doubt as to the sanity of the accused, at the time of the alleged killing, they must acquit him, and it is immaterial how that insanity was superinduced.” This instruction is erroneous. It required of the jury, before they could convict, that they should believe the prisoner was sane beyond a rational doubt at the time of the killing. 16. Misnomer in the indictment. Accused was indicted for killing “Barbara Kricl, the wife of the defendant.” The evidence showed that her name was Margaret Kriel. In the court below no objection to the evidence was made on that account, and no motion made to withdraw it from the jury. After conviction this court cannot suppose the misdescription of the given name, when placed in juxtaposition with the further description that she was his wife, could have misled him, or in any manner prevented him from a fair trial. (See sec. 127, Criminal Code.)
68 Ky. 376Olive v. Commonwealth (1869)
1. To make out the offense, of burglary, it is not necessary to prove that property was actually taken, stolen, &e.; it is sufficient if the house was feloniously broken and entered with the intention of so doing. 2. In an indictment for burglary, the actual commission of the ulterior felony being alleged as a substitute for the usual averment of the intent to commit the particular felony, that did not vitiate the indictment; for the commission of the felony, where one is actually committed, is the very best evidence of the intent to commit it. (2 Bishoprs Grim. Proc., sec. 115.) 3. The indictment did not charge that the storehouse was “burglariously” broken and entered. Objection to it on that account is fully answered by subsection 3, section 128, of the Criminal Code. The court could certainly pronounce judgment, on conviction, according to the right of the ease, without the insertion of the omitted word. 4. It is not necessary to give the number and street in the description of the house alleged to have been broken, &c. 5. That the owner’s name was alleged, to bN^- Domick instead of Domeck, as the owner himself spells it. Objection on that account is removed by section 127, Criminal Gode.
68 Ky. 380Caldwell v. Evans (1869)
1. A note negotiable and payable at the Deposit Bank of Stanford, was indorsed by the payee to the cashier of the Branch Bank of Kentucky, at Danville, and by him indorsed to the cashier of the Deposit Bank of Stanford. The subsequent possession of the paper by the payee, with the indorsements erased by lines drawn over them, rebuts all presumptions that the note was assigned for any other purpose than that of collection ; and 2. To support the plea of the surety that the note had been discounted in bank, and thereby put upon the footing of foreign bills of exchange, the erased indorsements were wholly insufficient, especially as the records and officers of the bank would establish whether the note had aclully been discounted. 3. Making a note payable at a bank does not, of itself, constitute such bank an agent of the payee to receive the money, but it is a mere designation of a place, where both the paper and the funds to take it up, will be on the day it is due; therefore, to make the bank the payee’s agent, either the paper must be indorsed to, or deposited with it.
68 Ky. 383Cleveland's adm'r v. Lyne (1869)
1. Cleveland, by his will, established in 1852, devised a large estate to his only daughter, Emma Jane, then‘about eight years of age; but provided, that if she should die without issue, that this estate should be devoted to a charity designated in the will. She died in 1865, in infancy, unmarried, and without issue. In 1868, the heirs of Emma Jane took an appeal from the order of the county court admitting her father’s will to record; and with her administrator, by petition in equity, assailed the validity of the will. On motion of the trustees of the charity, the parties were forced by the court to elect which action they would prosecute. Under this order, under protest, they dismissed the appeal; and thereupon, on demurrer, the court dismissed the petition in equity. These decisions of the circuit court are affirmed. 2. Two actions on the same grounds, in equity and at law, being prosecuted at the same time, on motion of the defendants, the plaintifi's may be compelled, by order of court, to elect which action they will prosecute, and to dismiss the other. (Story's Equity, sec. 742; Mitford’s Equity, 249-50; 2 Maddox's Chy., 358, Curd vs. Lewis, 1 Lana, 352; Coleman vs. Cross, 4 B. Mon., 269.) 3. An appeal may be taken, within five years, to the circuit court, from any order of the county court admitting a will to record, or rejecting it; and from ,the circuit court to the Court of Appeals, within one year after the final decision of the circuit court; and then— Any person interested, who, at the time of the final decision in the circuit court, resided out of this State; and any other person interested, who was not a party to the proceeding, may, within three years after such final decision of the circuit court, by bill in chancery, impeach the decision, and have a retrial of the question of probate. An infant not a party shall not be barred of such proceeding in chancery until one year after attaining full age. (Civil Code, sec. 519, subsecs. 2, 12; Revised, Statutes, chap. 106.) ' 4. Testator’s infant child and devisee having survived more than five years after his will was admitted to record, and then having died in infancy, the right of the heirs of such infant to prosecute an appeal to the circuit court, from the order of the county court, admitting the will to record, is limited to one year after the death of such infant. (Civil Code, secs. 22, 884, 519.)
68 Ky. 392Marsh v. Alford (1869)
1. The homestead exemption act, which took effect June 1, 1866, does not apply to, or embrace, a note executed after that date in payment of an account for articles purchased and delivered before that date. 2. The mechanics’ lien law applies to liabilities incurred by a married ■woman and her husband, for lumber furnished them to make repairs on her house, which were necessary for its comfortable use. — the wife having joined with her husband in the note executed for the lumber. Although the note was given after the lumber was obtained, the execution of the note brought the transaction within the provisions of section 1, article 2, chapter 47, Revised Statutes, as for necessaries. Claim and lien enforced.
68 Ky. 396Sharp's adm'r v. Proctor's adm'r (1869)
1. A married woman, having- the right to alienate and convey her general estate, may jointly, with her husband, mortgage it to secure even a prior debt of her husband; and such mortgage will be good as a conveyance of her legal title, and she can only redeem by paying the debt, either out of the land or otherwise. [Smith, fíe., vs. Wilson, 2 Met., 235; Johnston vs. Ferguson, 2 Met., 503.) 2. Land, subsequently inherited from her deceased son, cannot be subjected to the payment of a note executed by a married woman, in conjunction with her husband; which note, contrary to its recitals, was shown, not to have been executed for necessaries, as provided in section 1, article 2, chapter 47, Revised Statutes. (2 Stanton, 8.) 3. A married woman and her heirs arfe not estopped by the recitals in a note and mortgage executed by her, in conjunction with hot husband, from showing, by parol evidence, the real transaction and consideration for which she executed the note and mortgage; and in this case the husband was .a competent witness for her administrator and heirs for that purpose.
68 Ky. 401McKinney v. Griggs (1869)
CASE 23 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. CITED— 7 B. Mon., 494; Gibson vs. Armstrong. 1 Bouvier’s Law Die., 386, “Dedication.” CITED. 5 Mon., 408; Brown, fyc., vs. East. 3 Marshall, 24 ; l J. J. Marsh., 403. 2 Marshall, 106; 3 Marshall, 246.
68 Ky. 421Patrick v. Swinney (1869)
1. A covenant which warranted a slave u to be sound in body and mind, and a slave for life,” did not constitute or import a warranty of title in. the covenantors. 2. In an action on a note executed for the price of the slave, without averring any warranty of title, either expressed or implied, or a breach of such warranty, the allegations of the answer, “ that the vendors had no title to the slave, and had not, and could not, and never have made any title to the vendee,” did not present a good defense, as all this may be true, and the vendee have known it, and contracted to take the slave without any assurance of title whatever. 3. For a breach of the warranty of title, if there was such a warranty when the vendee had sold the slave, and had never been evicted, his recovery could only be nominal. 4. Permitting an amended answer to be filed, which did not present a good defense, to the filing of which the plaintiff objected, was error, and being excepted to, is one of the grounds of reversal in this case.
68 Ky. 426Beam v. Hayden (1869)
CASE 25 — PETITION ORDINARY APPEAL PItOM WASHINGTON CIRCUIT COURT. CITED— Civil Code, secs. 153, 409. 4 Met., 282; Skillman, SfC., vs. Muir's adm'r. 3 Met., 196 ; Marr's adm'r vs. Prather. CITED— 2 Bush, 169; Dehoney vs. Sandford. 2 Bush, 153 ; Kendrick vs. Fields. Internal Revenue, Act of Congress of June 30, 1864, secs. 53, 59. 2 Met., 452; Haney vs. Payne. 4 Dana, 336; Venable vs. McDonald. 5 Dana, 533 ; Eimberlin vs. Faris. 15 B. Mon., 630; Harris vs. Ray. 2 Met., 406 ; Neill vs. Brown, S^c.
68 Ky. 430Johnson v. Commonwealth (1869)
CASE 26 — INDICTMENT APPEAL PROM* JEFFERSON CIRCUIT COURT. CITED— Revised Statutes, sec. 2, art. 12, chap. 28. CITED— Revised Statutes, sec. 2, art. 12, 1 Stanton, 391.
68 Ky. 433Pulliam v. Jennings (1869)
The occupant, having occupied a tract of land for about seven years, and improved it in good faith, believing it to b'e his own property, being evicted by a superior title, he is, in equity, entitled to the ameliorations so far as his labor and money, expended in good faith, have enhanced the value of the land, to be estimated at the time of eviction; and he is liable for the use of the land as unimproved by him, and also annual interest on that value.
68 Ky. 435Butts v. Turner & Lacy (1869)
CASE 28 — PETITION ORDINARY APPEAL PROM BATII CIRCUIT COURT. CITED— Civil Code, secs. 31, 65. 18 B. Mon., 759 ; Warner vs. Turner. Revised Statutes, sec. 1, art. 1, chap. 12, and sec. 1, art. 4, chap. 63. 4 Met., 279; Smith, Wilson <§• Co., vs. Daugherty. 15 B. Mon., 67, 68; Davis vs. Sharon. CITED— Civil Code, sec. 32 ; 2 Stanton's Revised Statutes, 226. 18 B. Mon., 758; Warner vs. Turner.
68 Ky. 437Turner v. Elb (1869)
1. “An act to enlarge the jurisdiction of the Louisville Chancery Court,” approved February 26, 1868 (Session, Acts, 24), is held to be constitutional. 2. All available objections to the sale of real estate of infants, married women, &e., made under a decree of the Louisville Chancery Court, may be cured by proceedings in said court, as authorized by said act of February 26, ] 868, and titles may be perfected and silenced by confirmatory decrees, as therein prescribed.
68 Ky. 438Commonwealth v. Gabbert's adm'r (1869)
1. The sureties in a sheriff’s county levy bond are liable for the amount of a special tax, collected by him, which was authorized by an act of the Legislature, passed after the bond was executed, and subsequently imposed by an order of the county court. 2. The collection of the county levy is part of the official duty of the sheriff. — The increase of the levy, after he has executed bond, imposes no additional duty upon the sheriff. — The amount of the levy, during his continuance in office, is subject to legislative action. (Colter vs. Morgan's adm’r, 12 B. Mon., 2Í8; Taylor vs. Nunn, 2, Met, 199.) 3. Sureties undertake that the sheriff shall do whatever he may be legally required to do. 4. A sheriff’s county levy bond is not invalid as to the sureties therein, because it was not attested by the county court clerk. The statute does not require this bond to be attested by the county court clerk' — • not even for identification; the recitals of the bond, and the county court order of approval, being sufficient for that purpose. 5. A settlement and repoyt to the county court, made by two persons appointed for that purpose, showing the balance of the county levy due by the sheriff, is competent and prima facie evidence in an action against the sheriff and his sureties, although such settlement was made with the sheriff after he went out of office; and the statute provides that the county court shall appoint some suitable person to make such settlement. A word importing the singular number may extend and be applied to several persons or things. (Revised Statutes, sec. 12, chap. 21.)
68 Ky. 447Warren v. Perry (1869)
1. On the defendant’s plea of the statute of limitations in an action on a merchant’s account, which was barred by the statute, it was incumbent on the plaintiff, to maintain his allegation of a new promise, to prove either an express promise or such an acknowledgment as would imply a promise. 2. Both the statute of limitations and payment being plead by the defendant, the evidence of payment was weakened by evidence of a subsequent promise, as the presumption of the promise was weakened by the specific facts tending to the presumption of payment. In that state of case the circuit court erred by refusing to instruct the jury that on the issue of payment they should consider the facts conducing to prove payment; but admitted those facts for the purpose only of rebutting the evidence of a subsequent promise to pay. 3. An unqualified acknowledgment, without more or less, if clearly and satisfactorily proved, will bo sufficient to imply a promise to pay; but the implication may be repelled by any act or circumstance indicating that, nevertheless, there was no intention unconditionally to waive the statute. (Head’s ex’rvs. Manners’ adm’r, 5 J. J. Marshall, 256.) 4. Whether an offer to pay in cattle or horses implied an unconditional promise to pay, ought to have been left to the jury for their decision; “but, instead of leaving that question to the jury, the circuit court in this case instructed, in effect, that the acknowledgment implied a promise to pay in money or paper currency.” That instruction, peremptory and unqualified, was erroneous.
68 Ky. 452Berry v. Owens' heirs (1869)
1. 0. survived his sister and her only child, an illegitimate daughter. B., son of this illegitimate daughter of O.’s sister, cannot inherit from, or be a distributee in the estate of 0., who died intestate, and without descendants. It would be otherwise if the illegitimate daughter had been legitimated by the marriage of her mother, and by recognition; or if 0. had been illegitimate, or if his sister had survived him. 2. In the suit for the distribution of the estate of 0., some of the distributees conceded, whilst others denied, the claim of B., the son of O.’s illegitimate niece. The circuit court ought to have recognized B. as a co-distributee of the portion allotted to those consenting thereto. The judgment of the circuit court against B. is reversed, with directions to permit amendatory pleadings and proof upon questions suggested in the opinion.
68 Ky. 455Curtis Field v. Montmollin (1869)
CASE 33 — PETITION ORDINARY APPEAL PROM PAYETTE CIRCUIT COURT. CITED— Civil Code, secs. 342, 359, 180. 14 B. Mon., 395 ; Daniel vs. Judy. 15 B. Mon., 74; Smith vs. Mdberly. 1 J. J. Marshall, 57; Grace vs. Parle. Pr. Decisions; Pollock vs. Colglaryne. CITED— Civil Code, secs. 180, 588. Angelí ¿f Ames on Corporations, page 316, and note; pp. 5161-2-3, and notes. Pierce on American Railroad Law, page 127, and cases cited in note. 6 Dana, 107; Price vs. Price. 17 Mass., 243 ; Horne vs. Starkweather. 5 B. Monroe, 1; Winchester and Lexington Turnpike Road Company vs. Yimont. 13 Sergeant Sf Rawle, 210, 241. 14 B. Mon., 393; Daniel vs. Judy. 18 B. Mon., 229; Clark vs. Seaton. 1 Duvall, 281; Smith Sf Thornton vs. Curtis.
68 Ky. 458Hamilton v. Keith (1869)
CASH 34 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. CITED— 3 Marshall, 1; The Frankfort Bank vs. Anderson. 1 Ohio State R., 563; Debolt vs. Ohio Life Insurance and Trust Company. 1 Ohio State R., 591; Mechanics and Traders’ Bank of Ohio vs. Henry Debolt. 1 Ohio State R., 603; Knoup vs. Piqua Branch, State Bank of Ohio. I Ohio State R., 622; Toledo Bank vs. Bond. 4 Peters, 168; Beatty vs. Knowles’ Lessee. II Peters, 544, 50; Charles River Bridge Company vs. Warren Bridge. 1 Duvall, 374; Arnold, fyc., vs. Covington and Cincinnati Bridge Company. 2 Story on the Constitution, sec. 1395. Act of February 6, 1854, sec. 6. Act of February 16, 1869; Act of February 14, 1856. CITED— 4 Wheaton, 518; Dartmouth College vs. Woodward. 9 Granch, 88; Fletcher vs. Peck. 15 B. Mon., 642, 692; City of Louisville vs. University of Louisville. 2 Metcalfe, 598; Gregory's ex'r vs. Trustees of Shelby College. 3 Howard's U. S. R., 145; Gordon vs. Appeal Tax. 7 Cranch, 166; New Jersey vs. Wilson. 21 Pick., 555; Commonwealth vs. Farmers and Mechanics' Bank. 3 Bush, 594; Griffin vs. Kentucky Insurance Company. 16 Howard, 381; Piqua Bank vs. Knoup. 18 Howard, 331; Dodge vs. Woolsey. 4 Wallace, 534; Hoffman vs. City of Quincy. 18 B. Mon., 443 ; Philips vs. Winslow. 4 Metcalfe, 199; Bardstoion and Louisville Railroad Company vs. Metcalfe. 32 New Hamp.; Pierce vs. Fmbry.
68 Ky. 464Mallory v. Mallory's adm'r (1869)
1. The husband induced his wife to consent to sell and convey her land, in order that he might apply its proceeds to the purchase of another tract, by promising and agreeing with her that the latter should bo conveyed to her. He died, holding a title bond for the land so purchased. Held,— 2. That, as the legal tillo was not verted in the husband, the statute did not apply; but that a trust resulted in favor of the wife, and that she. was entitled, even against creditors, to an absolute conveyance of the land so purchased, to the extent it was paid for by the proceeds of the sale of her land. 3. That, as the administrator of the husband’s estate, representing- the creditors, ivas compelled to resort to equity to subject the land to the payment of debts, a court of equity should see that justice was done the wife, and prevent the conversion of her land contrary to the stipulated understanding, under which the proceeds of the sale of her land were applied to its purchase. (Simms vs. Spalding, 2 Duvall, 121.)
68 Ky. 467Morton v. Smith (1869)
The profits of a fair, held by colored people of Frankfort, are required to be applied to the purposes for which the fair was held. Self-constituted trustees have no right to divert the fund from those purposes.
68 Ky. 471Sandford v. Smith (1869)
CASE 31 — PETITION ORDINARY APPEAL FROM GALLATIN CIRCUIT COURT. CITED. Iiardin, 539; 2 Bibb, 542; 3 Bibb, 80. 2 J. J. Mar., 310 ; 3 Dana, 54; 7 B. Mon., 109. . 8 B. Mon., 192, 10 B. Mon., 256 ; 1 Marshall, 183. 4 Dana, 423 ; 1 Marshall, 335; 2 Monroe, 299.
68 Ky. 475Thomas v. McKay (1869)
Motion to set aside sheriff’s return of satisfaction of an execution. — The execution plaintiff required a levy and sale of mortgaged land to be made by the sheriff as unencumbered property, and became the purchaser at the amount of his execution. The land having been subjected and sold by equitable proceedings to satisfy the mortgage debt, the execution plaintiff’s motion to set aside the sheriff’s return was properly overruled by the circuit court. The purchaser’s right was subordinate to the mortgage, the same as if the land had been sold as encumbered property. ',(Covington and Cincinnati Bridge Co. vs. Walker, 2 Duvall, 150.)
68 Ky. 478Middleton v. Hoge (1869)
1. Mere misrepresentation of value is not, under ordinary circumstances, a vitiating fraud. 2. The law not only allows infants to avoid most of their contracts, but assumes that contracts, not equal and beneficial to them, were procured by fraud. This is constructive fraud, whether there was a fraudulent intent or not; but this prima facie imputation of fraud may be repelled by proof of reciprocity and commensurable consideration, and by the absence of any false suggestion or delusive suppression. 3. In this case it is held, that infancy did not entitle the plaintiff toan avoidance of his contract for the land. 1. Because, long after his majority, he put it out of his power to restore the title. 2. Because he confirmed his purchase— First. By his recorded deed, proclaiming his mother as the true and only owner of the land; and, Second. By his continued use of it as her property, held for his benefit. Third. By never offering an avoidance or rescission. Fourth. By his sale to another party. Fifth. By suing for damages for an alleged' fraud, and therefore waiving an avoidance on the plea of infancy. i. A voidable purchase of property by an infant may be confirmed by acts which might not confirm a sale by him; and a sale might be confirmed by acts which would not confirm a promise, and for obvious reasons— 5. Less will be required for the confirmation of executed than executory contracts by infants. (See opinion for list of authorities.) 6. An infant purchased and paid two thousand dollars in “greenbacks” for a lot of corn, and consumed it during his minority. In his suit to avoid the contract, the proof showing that the corn was worth but twelve hundred dollars at the date of the purchase, he is entitled to recovor eight hundred dollars of his vendor, with interest from the date of his payment, payable in “greenbacks.”
68 Ky. 506Dyas v. Lindsey (1869)
CASE 40 — PETITION ORDINARY APPEAL FROM GRANT OIROUIT COURT. CITED— Civil Code, secs. 107, 110. 16 B. Mon., 350; Raymond, vs. Reed. 8 Ohio State R., 215. 2 Met., 148-9. 4 Busk, 349; Dyas vs. Lindsey. CITED— Civil Code, sec. 107. 2 Bush, 556; Rankin vs. Turney. 2 Met., 146; Chiles vs. Drake. 5 Bush; Beard vs. Jolly.
68 Ky. 508City of Lexington v. Headley (1869)
CASE 41 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. CITED— 9 Dana, 514; City of Lexington vs. McQuillan’s heirs. 2 B. Mon., 178 ; City of Louisville vs. Hyatt. Session Acts 1867, 438. 1 Met., 298; City of Covington vs. Ludlow. Lexington City Charter, secs. 8, 60, 10, 324. Angelí Ames on Corporations, sec. 284. CITED— 1 Met., 298; City of Covington vs. Ludlow. Charter City of Lexington, sec. 10. 2 B. Mon., 180; City of Louisville vs. Hyatt, fyc. 13 B. Mon., 459; Kaye vs. Hall. Printed Ordinances of City of Lexington, p. 67, art. 324.
68 Ky. 515City of Louisville v. Henderson (1869)
CASE 42 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— City Charter of Louisville of 1851, art. 7, secs. 2, 6, 10. Act of Feb. 18, 1864, sec. 7, Session Acts, p. 434. 2 Parsons on Contracts, pp. 765-6, and cases cited, and pp. 535 to 547.
68 Ky. 521Webster v. Bronston (1869)
CASE 43 — PETITION EQUITY APPEAL FROM MADISON CIRCUIT COURT. CITED— Homestead Exemption Act, Myers’ Supplement, 714. 1 Bouvicr’s Law Hie., “Estoppel.” G Monroe, 635; Groves vs. Kcnnon. 6 Cruise’s Digest, s. pp. 23, 24.
68 Ky. 535Burge's adm'r v. Brown (1869)
CASE 44 — PETITION EQUITY APPEAL PROM WARREN CIRCUIT COURT. CITED— 1 Bush, 205; Huston vs. Duncan. 2 Bush, 515; Holcman's ex’r vs. Holeman’s heirs, SfC.
68 Ky. 539Sawyers v. Langford (1869)
1. Proceedings under statute op March 10, 1856 (1 Stanton, 553).— A sale, mortgage, or assignment, being assailed as fraudulent under the provisions of said statute by one creditor, within the six months, as provided therein, every other creditor of the defendant has a right to file his claim subsequently, and become a party to the proceeding- whilst pending, and to share pro rata with the plaintiff. By filing their claims, and making themselves parties to the proceedings whilst pending, they derive an equal benefit with the first plaintiff, which he cannot destroy by a dismissal of his petition. 2. The plaintiff, who filed his action within the six months, under the provisions of the act of JIarch 10, 1856, cannot dismiss his petition; nor can the court file it away “never to be docketed again,” so as to defeat the action as to other creditors who bad filed their claims, nnd made themselves parties whilst the proceeding was ponding. 3. In a proceeding under the statute of March 10, 1856, all the essential facts, as well as part of them, may bo referred to the master to ascertain and report the evidence, as well as his opinion thereon.
68 Ky. 544Braswell v. Commonwealth (1869)
CASE 46 — INDICTMENT APPEAL PROM LYON CIRCUIT COURT. CITED— Revised Statutes, sec. 1, article 1; sec. 2, art. 3; sec. 1, art. 4, chap. 99.
68 Ky. 547Forsythe v. Bonta (1869)
I. . On a plea of non est factum to a note, the circuit court correctly set forth the law of the case in the following instruction to the jury: “That if they believe that Forsythe did not execute the note sued on, or authorize it to be done; still, if they further believe, from the evidence, that after its execution and delivery to the plaintiff, and after the defendant, Forsythe, was informed of its amount and character, he acknowledged and ratified its execution, the jury should find for the plaintiff.” 2. If another assumed to act as agent of defendant in signing his name to a note without previous authority, which would have bound him, his subsequent acknowledgment and ratification would retroactively operate, so as to sanction the act as if authorized. (2 Qreenleaf\ 297; 2 Bouvier’s Institutes, 25.)
68 Ky. 549Donley v. Hall & Long (1869)
1. H. & L., by contract in writing, agreed to purchase of D. all the whisky made and to be made at his distillery, and to allow him one half of the profit over and above the price paid, deducting charges, &o. This contract did not make H. & L. partners of D. in the business of manufacturing whisky; and as such, liable to a third party for barrels furnished to D., who, without the knowledge of II. & L., was conducting his business in the name of D. & Co. 2. II. & L., having denied any partnership with D., and no act or contract of theirs being proved, which conduced or was sufficient to show the existence of such o rtnersliip, the acts, statements, &c., of D. to others, were not admissible against them to show a partnership, or any liability on their part, to the party who furnished the barrel» to D. as above. 3. That, to the extent D. was interested in the profits, H. & L. were his agents in the above transaction.
68 Ky. 556Harris v. Moberly (1869)
1. When the statute of limitations is pleaded as a bar to an action under the Civil Code (secs. 11(5, 117, 153), matters in avoidance may be relied on and proven, without a reply. 2. The allegation of new mailer, not relating to a counter-claim or set-off, in an answer or reply, is to be deemed, under the Code (sec. 153), to be controverted by the adverse party, as upon a direct denial, or avoidance, as the case may require. 3. A reply is allowed only to a counter-claim or set-off, and to no other pleading; and all other allegations of new matter are to bo treated as controverted by a direct denial by the adverse party without further pleading; and on the issue thus formed, any competent evidence pertinent to that issue is admissible. (Civil Code, scca„ 11C, 117, 153.) 4. “A surety in an obligation or contract, other than those provided for in the next two preceding sections, shall bo discharged from all liability thereon, when seven years shall have elapsed without suit thereon, after the cause of action accrued.” (Rev. Slat., see. 14, chap, 97, 2 Slant., 400.) Proving and filing a note with the master commissioner, in an action by the administrator of the estate of the principal in the note, against his heirs, &c., for settlement and pro rata distribution, without taking the steps necessary to recover judgment on the note, cannot he regarded as a suit, and will not prevent the bar as above provided, not even if the note was so filed, at the request of the surety. (Kellar vs. Sinton’s ex'r, 14 B. Mon., 306.)
68 Ky. 561Hatcher v. Andrews (1869)
CASE 50 — PETITION EQUITY APPEAL FROM BOYD CIRCUIT COURT. CITED— Revised Statutes, secs. 20, 21, chap. 24. 15 B. Mon., 119; Hedger vs. Ward, Syc. 4 Kent, p. 59, and note “ B,” and pp. 135 to 145, and notes. 3 Mason S," Page, 349 ; Powell vs. Manson. 25 Conn., 242; Collins Manufacturing Co. vs. Marcy. 18 Ves., 56; Hise vs. Barclay. 1 Dana, 305; Simpson, Syc., vs. Hawkins Sy Cochran. 2 Parsons on Contracts, pp. 498 to 500. 3 J. J. M., 304-9; Wily vs. Fitzpatrick. 5 Littell, 233 — 4; Royston vs. Shackleford. 7 Mon., 202; Payne vs. Cabell. 5 B. Mon., 540; Vance vs. House’s heirs. 5 B. Mon., 231-3 ; Rawlins vs. Timberlake. 3 Munford, 68; Stockton vs. Cook. CITED— 5 B. Mon., 537; Vance vs. House’s heirs. 4 Bibb., 272; Breckinridge vs. Hoke. 4Met., — ; Willis vs. Valett. Rawle on Cov.for Title,.pp. 613, 677, 724. 1 J. J. M., 480; Cummins vs. Boyl. 3 Marshall, 1173; Miller vs. Long. 7 B. Mon., 96; Brassfield vs. Walker. 4 Kent, 11 111 edn., p. 143. 5 Littell, 228 ; Royston vs. Shackleford.
68 Ky. 567Wilhoit v. Hancock (1869)
CASE 31 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. CITED— 2 Grccnlcaf on Ev., sees. 571, 577, 579, pp. 539, 540. 2 Mar., 129 ; Applegate vs. Ruble. Phillips on Evidence, part 5, pp. 218, 219. Revised Statutes, 2 Stanton, 128.
68 Ky. 573Bullitt County Court v. Troutman (1869)
CASE 52 — APPEAL FROM COURT OF CLAIMS APPEAL PROM BULLITT CIRCUIT COURT. CITED— 2 M. ip B.’s Digest, sec. 1, p. 1411. Revised Statutes, secs. 2, 4, 5, 6, 2 Stanton, 372-3. Myer's Supplement, see. 7,p. 494, and see. 1 ,p. 756. CITED— Act of March 7, 1867, Session Act.s,p. 74. Revised Statutes, 1 Stanton, pp. 243 and 301.
68 Ky. 575Walters v. Ratliff (1869)
1. Emancipated Slaves were required to remove erom the State. — . Barnabas Johnson died in 1862. In October, 1867, a copy of hig alleged last will was produced, proved, and admitted to record in the Pike county court. This paper, without date, purported to emancipate a number of slaves, and to devise to them most of testator’s real and personal estate'. Appellants, claiming to be heirs of said Johnson, in November, 1867, filed their petition in equity, in the Pike circuit court, against the persons named as devisees in said paper, seeking to vacate and set it aside on the alleged ground that the original, of which the paper recorded was represented to be a copy, if ever executed, was procured to be so executed by fraud and undue influence, &e. And by amended petition, they alleged that a number of said devisees, who, if really emancipated, were, at the. time of testator's death, in 1862, required, as a condition of freedom, to assent to be removed from the State, had never .done so, but remained iu Pike county; and on this ground the plaintiffs, as heirs-at-law of said Johnson, claimed the estate purpurporting to have been devised to said slaves. The circuit court •sustained a demurrer to the petition as amended, and dismissed the action. Held— First. That the demurrer was properly sustained to so much of ■the petition as sought to annul the supposed will, the remedy for that purpose, on the grounds disclosed, being exclusively by appeal ■to the circuit court. {Hughey, $c., vs. Sidwell’s heirs, 18 B. Mon., 259; Civil Code, sec. 519.) Second. But as the petition, as amended, substantially alleged a .refusal on the part of a number of said slaves to assent to their emancipation by removal from the State, and as, by the constitution and law of this State, in force at the death of Johnson, neither the emancipation nor the devises could take effect without removal or assent of the slaves to be removed; and that, from the alleged •facts, the .plaintiffs had such an interest in the estate ng would authorize them to maintain an action for its recovery, and that the court therefore erred in sustaining the demurrer to the entire petition.
68 Ky. 579Walker v. Sayers & Hopkins (1869)
CASE 54 — PETITION ORDINARY APPEAL FROM NELSON CIRCUIT COURT. CITED— 18 B. Mon., 649-50; Emmons vs. Overton. 13 B. Mon., 403; Ilord vs. Chandler. CITED— 18 B. Mon., 649; Emmons vs. Overton. 3 Met., 329-30; Kimble vs. Cummins. 15 B. Mon., 134. Rev. Stat., secs. 14, 15, chap. 97, 2 Slant., 400-1. 3 Met., 65-9; Coleman vs. Walker. 2 Met., 148-9 ; Chiles vs. Drake.
68 Ky. 584Beynroth v. Mandeville (1869)
CASE 55 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Revised Statutes, chap. 56, secs. 6, 7. Civil Code, sec. 500. 2 Bush, 176 ; Shepherd vs. Thompson. Taylor on Landlord and Tenant, p. 384. CITED— 4 Bush, 424; Thompson vs. Marsh. 1 Bush, 176; Shepherd vs. Thompson. Revised Statutes, chap. 56, secs. 6, 7.
68 Ky. 587Lloyd v. Colston & Moore (1869)
1. An agent to sell cannot become an agent to buy in the same transaction. (Story on Agency, sec. 211.) 2. Real estate agents for one party, in the sale or exchange of property, cannot represent the other party in the same transaction, and cannot demand and recover commissions from both parties.
68 Ky. 591Southerland v. Southerland's adm'r (1869)
CASE 58 — PETITION EQUITY APPEAL PROM SPENCER CIRCUIT COURT. CITED— 7 B. Mon., 444; Basham vs. Chamberlin. Roper's Law of Legacies, 1 and 2. 5 Littcll, 12; Duncan's adm'r vs. Duncan. 3 Aik. Rep., 214; Snellgrove vs. Bailey. 1 Duvall, 402; Kemper vs. Kemper's adm'r. 2 Edward's Ghy. R., 333 ; 2 Kent., s. p. 447. CITED— 2 Wheat. R., 17; 10 Conn. R., 480. 16 Vermont, 206; 31 Maine, 422. 14 Barb. S. R., 243; 10 Mass., 427. 16 Ala. R., 221; 3 Comstock, 98. 5 Gill Johns., 58; Bradley vs. Hunt. 4 Gralt. R., 479; Miller vs. Jeffreys. 6 Harris' R., 226; Headley vs. Kirby.
68 Ky. 595Bacon, McClardy & Co. v. Hutchings, Duncan & Co. (1869)
1. After dissolution of the partnership, one partner has no legal right to incur new responsibilities and execute new evidences of indebtedness in the name of the firm, without the knowledge or consent of the other. 2. Each member of a firm has the implied right and power to make bills to raise money to carry on their business; and in making such bills, whether the style of the firm or some other style is used, it does not change the legal rights of creditors nor the legal responsibility of each of the partners. 3. A partner, against whom a judgment by default was rendered, was a competent witness for the plaintiff, to prove that the bill sued on was made by him in the name of two members of the firm, and indorsed by a third, to raise money for the benefit of the firm, and that the money so raised was so used and applied.
68 Ky. 598Reed v. Lander (1869)
1. Ten per cent, damages cannot be awarded by the Court of Appeals on the affirmance of a judgment for the payment of money, as provided in section 904 of the Civil Code, unless an order of supersedeas has been issued by the clerk of the circuit court, or by the Clerk of the Court of Appeals. 2. A judgment is not superseded by the execution of a bond, nor until an order of supersedeas is issued by the proper clerk, as provided by the Civil Code, sections 886, 887, 888, and 892. 3. On rule, a judgment of tlie Court of Appeals for ten per cent, damages,, on affirmance of the judgment of the circuit court, is sot aside, because no supersedeas had been sued out.
68 Ky. 601Wood v. Anders (1869)
CASE 60 — PETITION EQUITY APPEAL PROM LOUISVILLE CIIAXCERY COURT. CITED— Act of Jan. 26, 1866, Myers’ Sup., 685. Story on Contracts, sec. 183. CITED— Myers’ Supplement, 685.
68 Ky. 603Buckner's ex'rs v. Cromie's ex'rs (1869)
1. Executors, with no express power to sell, have no authority to sell and convey real estate which relapsed to heirs and distributees, and did not pass under the will. 2. Beal estate which did not pass under the will, but relapsed to testator’s heirs and distributees, vested absolutely by descent in such lieirs and distributees. 3. When the will is inoperative, and real estate relapses and passes to heirs by descent, they have a right to take it as real estate, and that right cannot be defeated by any not of the executors. 4. When a devisee has the right, within a specified time, to elect to take real estate or its proceeds, unless the devisee has elected to take the proceeds, the executors have no authority to sell such real estate within the prescribed time.
68 Ky. 607Marshall & Kilpatrick v. Curtis (1869)
1. The local law of a State can give no liens to be adjudicated, and enforced in the State courts by a proceeding in rem against a vessel plying between the home port and a port in another State, even to a resident of the home port and against a vessel whose owners reside at the same port.— It would be in conflict with the Constitution of the United States (clause 1, sec. 2, art. 3, and the Judiciary Act of Congress of 24th September, 1780), which gives jurisdiction''exclusively to the United States Admiralty Courts. (The Moses Taylor, 4 Wallace, 411; Sine vs. Trevor, lb., 571.) 2. A proceeding against “ The Steamboat Magnolia and owners,” in which the thing itself is seized and impleaded as a defendant, without naming the debtor and present owner, and making them parties, is strictly an action in rem. 3. The marine lien, of which the United States Admiralty Court has exclusive jurisdiction, attaches to the thing- which can be followed anywhere and enforced against any person, by making the thing a defendant. No such remedy was known to the common law, therefore, such cases do not fall wilhin'that clause of the Judiciary Act of 1789, saving to the State court’s jurisdiction-' where the common law afforded a remedy. (The Moses Taylor, supra.; The Mine vs. Trevor, supra; Bird vs. The S. B. Josephine, 39 N. Y., 19j The Belfast, 7 Wallace, 631.) 4. The act of 1789 saves to the State courts a common law jurisdiction, with common law remedies; but the right of proceeding in rem against a vessel as the defendant, was never a common law remedy, and was derived from the civil law. At common law, the debtor or owner is an essential party, and must bo before the court by actual or constructive service. His interest in the vessel may be attached. 5. By the Admiralty law, as-understood both in England and America, no lien attaches, even on a vessel engaged in a foreign trade, for repairs done or materials furnished at the home port, except such as a shipwright had at common law, which was so long as he retained the possession. 6. Most of the Stales, by legislative enactment, have given material men, mechanics, &c., a lieu on vessels for repairs, materials, &c\, which, there can bo little doubt, the local law might authorize the State courts to enforce by a common law proceeding in personam, and by attaching the interest of the original debtor or his vendee, inasmuch as such liens are not of original Admiralty jurisdiction.
68 Ky. 617Ecklar v. Galbreath (1869)
CASE 63 — PETITION EQUITY APPEAL PROM HARRISON CIRCUIT COURT. CITED— Story on Partnerships, sec. 390. 7 B. Mon., 610; Simrall vs. O’Bannon. 1 Dana, 306; Simpson vs. Hawkins. 7 Mon., 457 ; Tribble vs.--.
68 Ky. 619Powell v. Powell (1869)
CASE 64 — PETITION EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT.
68 Ky. 621Whitaker v. Crutcher (1869)
CASE 65 — PETITION ORDINARY, APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Civil Code, see. 887. Revised Statutes, 1 Stanton, 246, 247. 2 Met., 613 ; Millott vs. Parker. 1 Met., 59 ; Jones, SfC., vs. Shclbyville, fyc.
68 Ky. 625Smith v. Smith (1869)
A written contract between Peter Smith and Nancy Smith, the widow and administratrix of his deceased son, Noah Smith, contained the following words: “It being the express agreement and understanding between the parties Hereto, that on a final distribution of hi9 estate, the said Peter Smith intends to make the aforesaid children, who represent their father, the said Noah Smith, equal in all things with his son, Lee 0. Smith.” Held — • First. That the words above stated constitute an obligation on the part of Peter Smith to make Noah Smith's children equal with Lee 0. Smith in the distribution of Peter Smith’s estate. Second. That the release of an asserted claim by the administratrix was a sufficient consideration to uphold said obligation. Third. Although the agreement was with Nancy Smith, yet as it was made for the benefit of her children, they had a right to sue in equity for its enforcement. (Civil Oode, secs. SO, 33.) Fourth. The recognition by Peter Smith, in his will, of a debt to Lee 0. Smith, which, in point of fact, he did not owe, is held invalid and ineffectual, it being shown to have been made for the purpose of defeating the above obligation to Nancy Smith for the benefit of her children.
68 Ky. 637Terrell v. Spence (1869)
CASE 61 — PETITION EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT. CITED— 18 B. Mon., 376; Williamson vs. Williamson. 14 B. Mon., 571; Turman vs. White's heirs. Revised Statutes, Myers' Sup., 426, 428. Civil Code, sec. 49; Story's Eq., sec. 63. MS. Opn., Dec., 1854 ; Gary vs. Meigs. 11 B. Mon., 273; Berry vs. Williamson. 1 Met., 479 ; Worthington vs. Crabtree. 3 Bush, 484; Paid vs. Paul. 1 Met., 424; Magowan, fyc.,vs. Way. 16 B. Mon., 289; Carpenter vs. Strother. 18 B. Mon., 387 ; Barret vs. Churchill. 1 Met., 284; Todd vs. Dowd's heirs. Revised Statutes, sec. 10, chap. 80, arts. 3, 5, 6; chap. 86, sec. 17, art. 4, chap. 47. 1 Bouvier's Law Die., p. 303, “Contingent Remainders." 1 Bush, 229, 232; Miller vs. Hall and wife. CITED— Revised Statutes, sec. 1, art. 5, chap. 86. Act of Feb. 16, 1858 ; 2 Stanton, 314. Act of Aug. 25, 1862 ; Myers' Sup., 426.
68 Ky. 642Horsfall v. Ford (1869)
CASE 68 — PETITION EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT. CITED— Civil Code, secs. 543, 55. 18 B. Mon., 391; Barret vs. Churchill. CITED- Civil Code', sec. 543. Myers’ Supplement, 428.
68 Ky. 646Keith v. Wolf (1869)
CASE 69 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. CITED— Revised Statutes, sec. 26, chap. 80, 2 Stanton, 230. 2 Bush, 208 ; Maupin, fyc., vs. McCormick', fyc. 3 Bush, 670; Ricketts vs. Lambert. , Section 11, Charter of Cov. Lex. R. R. Co., 1847. 1 Amer. Railway Cases, 352. 17 Conn. Rep., 40; Enfield Bridge Co. vs. Hartford N. R. R. Co. 2 Amer. Railway Cases, 83, 527. 2 B. 4- Aid., 548. 21 Vermont Rep., 594; 3 Paige, 45. 18 B. Mon., 448; Phillips, SfC., vs. Winslow. 3 Bush, 650; Applegate, SfC., vs. Ernst. 23 Bevan, 290 ; Wood vs. Charing. 5 B. Mon., 1; Winchester <§• Lexington Turnpike Road Co. vs. Vimont. CITED— Revised Statutes, sec. 26, chap. 80. 4 Bush, 637; Beyland vs. Sewell, fyc. 18 B. Mon., 448; Phillips vs. Winslow. CITED— 7 Monroe, 117. 5 J. J. Mar., 144; Trebble vs. Oldham. 4 Kent, 155-6 ; 2 Story's Equity, secs. 1224-25. 17 B. Mon., 650; 1 Met., 563; 3 Met., 252. 2 Bush, 90; Long vs. Burke.
68 Ky. 649Oneal v. Orr (1869)
CASE 70 — FORCIBLE DETAINER APPEAL FROM BRACEES CIRCUIT COURT. CITED— 4 Bibb, 355; Rogers vs. Turley. 3 J. J. Mar., 168; Wheatley vs. Price. 4 J. J. Mar., 230 ; Gudgell vs. Duvall. Revised Statutes, sec. 4, art. 1, chap. 56. Civil Code, sec. 500. 2 Bush, 177; Shepherd vs. Thompson. CITED— 4 Bibb, 355; 3 /. /. Mar., 168 ; 4 J. J. Mar., 230.
68 Ky. 652Manhattan Insurance v. Stein & Zang (1869)
CASE 71 — PETITION ORDINARY APPEAL EKOM JEEEERSOK COURT OP OOMHOX PLEAS. CITED— 3 jWill, 501; Roberts vs. Chenango Mut. Ins. Co. 2 Comstock, 210 ; Murdock vs. same. 20 Indiana, 520; Rising Sun Ins. Co. vs. Slaughter. Arnould on Insurance, 291, 292, 293, 294. Angelí on Fire and Life Ins., secs. 140, 142, 143, and note 2. Ellis on Law of Fire and Life Insurance, 28. 5 Ohio, 467 ; Harris vs. Ohio Insurance Co. 21 Missouri, 97 ; Hutchinson vs. The Western Ins. Co. 22 New York, 402; Bigler vs. The Central Ins. Co. Same case, 20 Barbour, 635. 16 Peters, 508-511 ; Carpenter vs. Prov. Wash. Insurance Company. 3 Robinson's La. R., 384; Battaile vs. Merchants' Insurance company. 12 Cushing, 469 ; Pendar vs. American Ins. Co. 8 Gray, 33; Kimble vs. Howard Ins. Co. 7 Cushing, 175; Barrett vs. Union Mut. Ins. Go. 12 Gushing, 144; Conway Tool Co. vs. Hudson River Insurance Company. 6 Gray, 169; Hale vs. Mechanics’ Mut. Ins. Co. 41 New Hamp., 175 ; Gale vs. Belknap Ins. Co. 23 Pick., 418; Jackson vs. Massachusetts Ins. Co. 6 Cushing, 342 ; Clarke vs. New England Ins. Co. 37 Maine, 37; Philbrook vs. New England Mutual Insurance Company. 6 Cowen, 635; Lucas vs. Jefferson Ins. Co. 18 Pick., 21 ; Kent vs. Manufacturers’ Ins. Co. 6 Gray, 204; Kennebec Company vs. Augusta Insurance Company. 9 Howard’s S. C. R., 390; Taylor vs. The Merchants’ Insurance Company. 19 New York, 306; Baptist Church vs. Brooklyn Insurance Company. 2 Kernan, 258; Western vs. Genesee Mutual Ins. Co. 3 Comstock, 266; Hyde vs. Goodnow. 4 Metcalfe’s Kentucky R., 14; Phoenix Insurance Company vs. Lawrence. 32 New York, 414; Hoffman vs. The JEtna Ins. Co. Chilly’s Pleadings, 257, 258, 9ih Amer. from 6th London ed. 25 Barbour, 189 ; Goit vs. The Protection Ins. Go. 12 Cushing, 423 ; Daniels vs. Hudson River Ins. Co. 5 Rawle, 342; Moliere vs. Pennsylvania Fire Ins. Co. 1 Cushing, 257 ; Heath vs. Franklin Ins. Co. 4 Bush, 242; Baer vs. Phoenix Ins. Co. 1 Disney’s Ohio S. C., 138; Root Co. vs. Cincinnati and Washington Insurance Companies. 1 Wright’s Ohio, 544; Harris vs. Ohioffns. Co. CITED— 28 Barbour, p. 119; Courtney vs. New York City Insurance Company. 9 Dana, p. 150; The Louisville Marine and Fire Ins. Go. vs. Bland ¿y Coleman. Angelí on Fire and Life Insurance, secs. 244 and 245. 23 Wendell, page 526; McLaughlin vs. Washington County Marine Insurance Company. ' 25 Wendell, p. 378; Turley vs. The JNorth American Fire Insurance Company. 25 Wendell, p. 381; McMasters <§• Bruce vs. The Western Mutual Insurance Company. 16 Wendell, p. 401; The JEtna Fire Insurance Company vs. Tyler. 9 Wendell, p. 166, sec. 149, C. C. P.; Cornell vs. Le-Roy ly Rapelye. 2 Mason's Reports, p. 475; Robinson vs. The Marine Insurance Company. 18 Pickering, p. 152; Wiggins vs. Suffolk Ins.' Co. 29 Barbour, p. 303; Voss vs. The Hamilton Mutual Insurance Company, Salem. 10 Pickering, p. 43 ; Strong vs. Manufacturers'' Insurance Company. 16 B. M., p. 273 ; JEtna Insurance Company vs. Jackson, etc. 28 Barbour, p. 118; Courtney vs. New York City Insurance Company. ; 5 Cranch, 341; Yeatman vs. Foy. 7 Hill, 255 ; Livingston vs. Sickles. 32 New York Rep., 415, 434. 9 Dana, 150; Louisville Marine and Fire Ins. Co. vs. Coleman. 12 Cushing, 148; Camden Tool Company vs. Hudson River Insurance Company.
68 Ky. 660Board of Trustees v. Watson (1869)
Authority, conferred on the trustees of a town by act of the Legislature, to exact the piyment of not more than three hundred dollars from any person selling spirituous liquors by retail within one mile of tho town, is a police regulation, and is not unconstitutional. But it would be unconstitutional if it wa3 a simple tax for local municipal purposes alone.
68 Ky. 663Fannin v. Bellomy (1869)
CASE 13 — PETITION EQUITY APPEAL FROM BOYD CIRCUIT COURT. CITED— . 5 Litlcll, 179-80 ; Liggctt's heirs vs. Ashley, fyc. 2 Dana., 258 to 269 ; Harrison vs. Talbott. 12 B. Mon., 269-71; Grundy's heirs vs. Grundy, fyc, 3 Met., —; Fall vs. McMurtry.
68 Ky. 666Fellows & Co. v. Day (1869)
1. In all cases of a mere injunction of a judgment, the ordinary injunc1ion bond affords all the security required by law. 2. The bond required by sub-section 2, of section 440, of the Civil Code, applies only to cases of attachment, to secure the restoration of the property in a certain event.
68 Ky. 667Hawes v. City of Louisville (1869)
CASE IS — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Charier of Cily of Louisville, sec. ’1, art. 7. 2 Smith’s Leading Cases; Dovaslon vs. Payne. 18 U. S. G. R., 11 ; Irwin vs. Dixon. G Peters, 442-3 ; City of Cincinnati vs. While’s lessee. CITED— 2 Smith’s Leading Cases; Dovaslon vs. Payne, and notes. 9 B'. Mon., 200; Trustees of Dover vs. Fox. 2 B. Mon., 232, 237; Rowan’s cx’rs vs. Town of Po?-t-land.
68 Ky. 670Hick v. Hick (1869)
CASE 76 — PETITION EQUITY — FOR DITOROE APPEAL FROM KENTON CIRCUIT COURT.
68 Ky. 672S. Barker & Co. v. Mann, Bennett & Co. (1869)
CASE 77 — PETITION APPEAL FROM JEFFERSON CIRCUIT COURT. CITED— Sedgwick on Damages, p. 82. Parsons on Contracts, p. 458. Story on Sales, p. 425. CITED— 1 Parsons on Contracts, 432. 9 Exch., 341; Hadley vs. Baxendale. 20 Eng. Law and Eq., 410; Waters vs. Towers. 1 Starkie, 504 ; Bridge vs. Wain. 18 C. B. (U. Si), 445; Bevins vs. Hutchinson. 3 Barbour’s S. C. Rep., 424; Freeman vs. Clute. 16 N. Y., 489; Griffin vs. Colver. 14 B. Mon., 116; Thompson vs. Jackson, fyc.
68 Ky. 680Commonwealth v. Jackson (1869)
CASE 78 — PETITION EQUITY APPEAL PROM M’LEAK CIRCUIT COURT. CITED— House Journal, \8m,pp. 344, 733, 782, 800, 813. Senate Journal, 1867,pp. 346, 645, 721, 737, 757.. Constitution of Kentucky, sec. 40, art. 2. CITED— Act of March 9, 1867, Session Acts, chap. 1952. 1 Chitty on Pleading, p. 76.
68 Ky. 686McNees v. Thompson (1869)
1. After a person has been found to be of unsound mind, so long as the unsoundness exists he should for most, if not all purposes, be regarded as civilly dead. Yet the provisions of the Civil Code prescribing the mode of reviving judgments have not specifically provided for such a case. 2. A judgment obtained against a person subsequently found to be of unsound mind may be revived by an action against the defendant and his committee. 3. Such a judgment- cannot be satisfied by execution after the defendant is found to be of unsound mind.
68 Ky. 689Ferguson v. Loar (1869)
CASE 80 — PETITION APPEAL PROM 'LAWRENCE CIRCUIT COURT. CITED— 2 Cranch, 170 ; Little vs. Bárreme. 13 Howard, 504; Mitchell vs. Harmony. 2 Duvall, 504; Christian County vs. Rankin Sp Tharp. 2 Bush, 456; Terrill vs. Rankin. 1 Bush, 357; Short vs. Wilson. 1 Bush, 355 ; Beck vs. Ingram. CITED— 1 Duvall, 232; Bland vs. Adams Express Company. 1 Bush, 387 ; Price, fyc., vs. Poynter. 1 Bush, 404.; Bell vs. Louisville Sf Nashville R. R. Co. 2 Black’s U. S. Prize Cases, pp. 666, 695, 295. Ilalleck’s Int.- Law and Laws of War, sec. 22, p. 464. 3 Vattell, chap. 18, sec. 295. Lawrence’s Wheaton, 596; lb. on Amnesty, p. 524. President Johnson’s Amnesty of 1868. 1 Kent, pp. 97, 98, and notes to pp. 99 and 100.
68 Ky. 695Royse's adm'r v. McCall (1869)
CASE 81 — ARBITRATION - AWARDS APPEAL FROM FLEMING CIRCUIT COURT. CITED— 15 B. Mon., 445; Smith vs. Fah. CITED— 6 Dana, 11; Glass ford vs. Shockcy.
68 Ky. 698Able v. Commonwealth (1869)
CASE 82 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. CITED— Revised Statutes, sec. 10, chap. 28. 4 Blackstonc, chap. 3. 12 Alabama, 460; Hughes vs. The Stale. 2Wharton’s Amor. Grim. Law, sec. 1811. 1 Wharton’s Arner. Grim. Law, secs. 112 to 134. 2 Dev. ó,- B.’s N. G. Rep., 412; State vs. Hardin. 1 Bishop on Grim. Prac., pp'. 546 to 551. 1 Hale’s Pleas of the Grown, pp. 611 to 618, 623 to 626, and 537. 1 Bishop’s .Grim. Law, pp. 475-6. 3 Gilmore, 368, 381, 382. 5 Gal. Rep., 133; People vs. Davidson. 1 Green. Ill; Russell vs. United Slates. 5 Mich., 71, 86, 88; Shannon vs. People. 29 Maine, 84; State vs. Ricker. 2 Hawkins’ Pleas of the Grown, page 445. Foster, 354; Plowden, 475, 476. 2 Inst., 182; Dalton, 108. Lamb, 2, chap. 7 ; Concromp, 49. 3 Inst., 51; Compton, 42, summary, 217, 218. CITED— Bishop’s Grim. Law, 432-33. 4 Washington Cir. Court Rep.,733. 2 B. Mon., 417; Ross vs. Commonwealth. 10 Mass. Report, 160. 11 Mass. Report, 136. LitteWs Select Cases, 118; Caldwell vs. Sacra. 2 Russell on Crimes, 118, and cases cited.