69 Ky.

Volume 69 — Kentucky Reports

163 opinions

69 Ky. 1Brown v. Grover (1869)
CITED 4 Bush, 383, Calloway v. Commonwealth. Constitution of Kentucky, sec. 9, art. 6; sec. 36, art. 4. Revised Statutes, secs. 2, 3, chap. 91, 2 Stanton, 339. Revised Statutes, sec. 1, art. 23, chap. 28, 1 Stanton, 407. Revised Statutes, secs. 10, 12, chap. 71, 2 Stanton, 191-2. Civil Code, secs. 532, 535.
69 Ky. 4Daniels v. Vertrees (1869)
Case 3 — PETITION ORDINARY — CITED Revised Statutes, secs. 3, 4, chap. 43, 1 Stanton, 574-5. Revised Statutes, sec. 1, art. 1, chap. 91, 3 Stanton, 339. 4 Bush, 306-7, Fletcher v. Leight, Barrett & Co. CITED 1 Greenleaf on Evidence, sec. 86, page 134. Revised Statutes, sec. 4, 1 Stanton, 338, 339.
69 Ky. 8Girty & Frame v. Logan (1869)
Case 3 — PETITION EQUITY — CITED Civil Code, secs. 543, 34, 36, 53, 81, 57, 56, 65, 97, 106. Myers’s notes to sec. 97. CITED Civil Code, sec. 543. Revised Statutes, chap. 86.
69 Ky. 12Hall's Administrator v. Priest (1869)
Case 4 — PETITION EQUITY — CITED 1 Bush, 54, Churchill v. Terrill. 2 Duvall, 283, Lane v. Berry. Revised Statutes, secs. 18, 19, chap. 80, 2 Stanton, 229. 1 Duvall, 312, Spalding v. Bull. 1 Met. 572-3, Tipton v. Triplett. 4 Littell, 254, Mason v. Chambers. 5 Mon. 386, Clay v. Straughan. 17 B. Mon. 678, Moore, &c. v. Caruthers, &c. 4 Met. 112, Hutchings v. Moore. CITED Notes on page 407, Myers’s Code, Ready v. Smith; Steers v. Mason..
69 Ky. 16Thruston's Administratrix v. Oldham (1869)
APPEAL FROM DAVIESS CIRCUIT COURT. 1. What is necessary to constitute a sufficient denial. — In any case this must depend on the import of the petition, or of the counterclaim or set-off presented by the answer. 2. A petition, set-off, or counter-claim, founded on an ordinary account for goods, will be construed to relate to it, and by implication to .. allege what may be reasonably inferred from the statement of the items of the account; that is, a sale and delivery of the goods to the party charged upon an express or implied promise to pay therefor the piices stated in the account. 3. An answer to such a petition, or reply to such a set-off or counterclaim, to be sufficient as a denial, should controvert some material part of these actual or constructive 'averments; and it will not be sufficient to simply deny some mere conclusion of law. (Francis v. Francis, 18 B. Mon. 57; Webb v. Jeffries, 2 Bush, 221; Clark, &c. v. Finnell, 16 B. Mon. 329.) 4. If a reply is sufficient as to one only of several items in an account pleaded as a set-off, it is not error to overrule a motion to take the set-off as confessed.
69 Ky. 20Burks v. Wonterline (1869)
Case 6 — PETITION ORDINARY — CITED Chitty on Contracts, 6th American edition, page 528. 1 Parsons on Bills and Notes, page 236. Byles on Bills, 5th Amer. and 9th London edition, s. p. 234. Burge on Suretyship, 218, 219, 224. 18 Johnson, 404, Pleming v. Slocum. 5 Bingham, 142, Stone v. Oompton. 3 B. & Cress. 605, Pidcock y. Bishop. 9 B. Mon. 222, Singleton y. Kennedy. 2 Kent, page 643, 11th edition. 26 Maine, 149, Denny y. Gillian. 1 Wendell, 10, Allen y, Addington. 7 Met. (Mass.) 252, Kinney v. Stoddart. 2 Sandford Chancery, 636. 9 Ala. 42, Arrington and Evans v. Keeland. 10 S. & M. 1, Tucker v. Graves. 32 N. H. 60, Watriss v. Pierce. 19 Juris. 404, Willis v. Willis. 4 Am. Law Reg., Lee et al. v. Jones. 1 Smith’s Leading Cases, 238, Chandler v. Lopus. 5 Dana, 82, Crutcher v. Trabue. 14 B. Mon. 15, Patton v. Shanklin. 2 Met. 248, Neel v. Harding.
69 Ky. 25Rake v. Owners of the Steamboat Potomac (1869)
Case 7 — PETITION ORDINARY — CITED 3 Metcalfe, 55, Hall & Co. v. Renfro. 4 Dana, 430, Robertson & Co. v. Kennedy. CITED 4 Wallace, The Moses Taylor, and cases cited. Civil Code, secs. 46, 85, and Myers’s notes to 118. Ms. Opinion, December, 1857, Willies v. Morehead. 16 B. Mon. 585, Kouutz v. Brown.
69 Ky. 27Bailey v. Villier (1869)
APPEAL FROM JEFFERSON COURT .OF COMMON PLEAS. 1. Power of the Jefferson Court of Common Pleas over its judgments — Time of filing bills of exceptions in said court. — Said court has the same power over its final judgments for sixty days that the circuit courts have during the same terms in which judgments are rendered. (Act of February 5, 1866, Myers’s Supplement, 770; Civil Code, sec. 800.) But whether the time for filing a bill of exceptions may not, by the rules of practice which the court is authorized to adopt, be restricted within a shorter period of time than sixty days, th.c enactments referred to do not contemplate the exercise of that right after the expiration of sixty days from the rendition of a final judgment. 2. If under any circumstances the JefEcrson Court of Common Pleas was authorized to extend time to file a bill of exceptions to a day beyond the period of sixty days from the judgment, such a day having been fixed, and passed without any notice of the subject being tajeen, the opportunity for filing a bill of exceptions was entirely lost. 3. Bill of exceptions not regarded if not filed in time prescribed BY LAW. In this case the judgment was rendered June 8, 1868. Time for filing a bill of exceptions was extended from time to time until September 19, 1868. The bill of exceptions was not then filed, but was filed September 26, 1868. Held, That such a bill of exceptions can not be regarded. (Freeman v. Brenham, &c., 17 B. Mon. 609; Meadows v. Campbell, 1 Bush, 104.)
69 Ky. 31Joyce v. O'Toole (1869)
Case 9 — PETITION EQUITY — CITED 3 Bibb, 466, Kennedy’s heirs v. Meredith. 2 Mar. 325. 4 J. J. Mar. 271. 4 J. J. Mar. 271, Sandusky v. McGee. Civil Code, secs. 392, 393. CITED Civil Code, secs. 577, 578, 389.
69 Ky. 34Bonney v. Reardin (1869)
APPEAL PROM WOODFORD CIRCUIT COURT. 1. Each cause of action should be distinctly stated. — When a petition contains more than one cause oi action, each should be distinctly stated in a separate paragraph and numbered (Civil Code, section 119); and on the failure of the plaintiff to do so the court may require a compliance'with the rule. 2. Plaintiff may be required to elect which cause of action he will prosecute. — If different causes of action are joined which can not be united in the same petition (Civil Code, section 111), the plaintiff may be required to elect which of them he will prosecute and,dismiss the others; but not so when the different causes are such as may bo joined; and no election can be required if the petition contain but one substantial cause of action; although if it contained irrelevant or redundant matter it may be stricken out under section 147 of the Code. 3. In an action against a husband on an account against his wife, alleged to have been created before their marriage, proof, in connection with an. agreement of the husband to pay the_account, that he said he had consulted his wife about the account, “and that she said it was all correct” excej)t certain specified items, was competent evidence; and the case ought not tcrhave.-been withdrawn from the jury by a peremptory instruction, on the ground of a failure of proof of the account. 4. Nor should said instruction have been given on the ground that the wife was an infant when the account was created, as the jury may have inferred from the account itself that some part of it was for necessaries for which the husband, on receiving estate by his wife, would be liable, independent of any subáequent ratification or express promise.
69 Ky. 41Greenly v. Daniels (1869)
APPEAL PROM HARDIN CIRCUIT COURT. 1. A guardian was appointed for three wards by order of the county court. But two of these wards were named in the bond executed by said guardian. He acted as guardian for all three, and as such made settlements which were approved and recorded, showing that he was indebted as guardian to each one of the three wards; and In suit against the guardian and his sureties on his said bond, judgment was rendered in favor of each of the three wards named in the county court order against the guardian and his sureties, when but two of the wards were named in thchbond on which the suit was brought. The judgment in favor of the ward whose name does not appear in the bond is reversed, on the appeal of the sureties, as to them. 2. An action on a guardian’s bond must be brought in the county.in which the guardian qualified. (Civil Code, sec. 98.)
69 Ky. 44Holderman v. Middleton (1869)
Case 12 — PETITION ORDINARY — CITED Revised Statutes, Act of March, 1854, 2 Stanton, 50. 17 B. Mon. 498, Beebee and wife v. Hutchison. CITED Revised Statutes, 2 Stanton, 50. 17 B. Mon. 498, Beebee and wife y. Hutchison.
69 Ky. 47Holmes's Heirs v. Gay's Heirs (1869)
APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. Continued and exclusive possession from 1818 to 1863 gave a possessory title if not a fee. 3. Possession under pretense of an equitable right under the holder of the legal title would not be constructively adverse to the holder of the legal title. '' ■ 3. A joint-judgment was proper against the defendants who made themselves joint-defendants, and jointly answered and claimed the land for which the judgment was rendered.
69 Ky. 51Knight v. Whitman (1869)
APPEAL FROM HART CIRCUIT COURT. 1. Ill an action for thirty dollars for a hog, commenced in a quarterly court in December, 1865, judgment was rendered in that court in March, 1866, for the defendant. The plaintiff: appealed to the circuit court, and in 1867 recovered a judgment against the defendant in that court for $80 for the hog and for $152.98 costs. JDid the homestead exemption act.apply to the judgment, or to the costs incurred after June 1, 1866, when that act took effect? Held, First, that the homestead act did not apply to the judgment, which was recovered on a liability which existed prior to June 1, 1866; and, Second, that the homestead act did not apply to the costs; that the costs of all such cases are only incidents attached thereto, and must be governed by the laws applicable to the debt or liability out of which they grew. 2. A deed duly acknowledged and lodged for record passes the legal title as between the vendor and vendee, although such deed was not recorded because the tax was not paid thereon. Any subsequent' vendee, or a purchaser of the land so held under an execution sale thereof, might pay the tax and fees, and have such deed recorded. 3. It is the legal duty of the officer to cause land levied on, before making sale thereof, to be valued, under oath, by two disinterested intelligent housekeepers of the county not related to either party. (Subsec. 3, sec. 0, art. 13, chap. 86, Revised Statutes, 1 Stanton, 483.) But if the officer should permit each party to select one of the appraisers, this would simply be a courtesy and not the discharge of a legal duty. 4. That the appraisers were sworn may be shown by the appraiser’s certificate or by the officer’s return.
69 Ky. 55Lawrence v. Edelen (1869)
APPEAL FROM LARUE CIRCUIT COURT. 1. “Sales made under execution by fraud, covin, or collusion maybe set aside on the motion of any person aggrieved, or by bill in equity.” (Revised Statutes, seo. 1, art. 16, chap. 36, 1 Stanton, 490.) 2. To authorize the court to set aside an execution sale of land on the ground of fraud in the selection of the appi-aisers, or that they had ' appraised the laud below its real value, it must appear by sufficient allegation and proof that the incorrect valuation was procured by fraud, or resulted from mistake other than in- the mere judgment of the appraisers. 3. The valuation, if fairly made, is the legal test of the defendant's right to redeem, although, the persons selected by the sheriff to make the valuation may err in judgment as to the value of the land.
69 Ky. 58Winstell v. Hehl (1869)
Case 16 — PETITION EQUITY — CITED Taylor on Landlord and Tenant, secs. 304, 305, 306, 808, 431, 445. 3 Bush, 353, Hackett v. Schad. 11 Mo. 440, Blair v. Rankin. 14 Mass. 488, Waldo v. Hall. 3 Mon. 221, Coleman v. Moberly. 3 Mon. 290, Bedal v. Stith. 3 J. J. Mar, 633, Tribble v. Baker. 14 B. Mon. 18, Emerson v. Olaywell. 2 Mass. 455, Bickford v. Page. 14 Johnson, 89, Kane v. Sawyer. CITED Woodfall on Landlord and Tenant,'book 1, chap. 1, § 14. 3 Mon. 290, Bedal v. Stith. 4 Bibb, 249, French v. Orear. 3 J. J. Mai’. 686, Tribble v. Davis. 7 J. J. Mar. 843, Stafford v. Steele’s executors. 4 Dana, 66, Sebree’s heirs v. Harper. 1 Mar. 227, Johnston’s heirs v. Mitchell’s heirs. 1 Mar. 118, Lee v. Metcalfe. 9 B. Mon. 525, Lacey’s heirs v. McMillan. Revised Statutes, art. 2, chap. 47. 8 Bacon’s Abridgment, 398, 399.
69 Ky. 65Bethel v. Bethel (1869)
APPEAL PROM HARDIN CIRCUIT COURT. 1. TWO PINAL JUDGMENTS IN SAME CASE TO SELL LAND, THE LAST HELD TO be void. — After full preparation of the jileadings, etc., to pay debts and for- distribution, the court rendered a final judgment for the sale of a taj,ct of land, ordering the commissioner to sell on one and two years’ time, first in two tracts and then in gross, and to report- the sale most advantageous to the heirs, but not- to sell unless the whole tract brought a sum equivalent to eighteen dollars per acre; but should it not sell for that sum, then a sufficiency off a designated side was to be sold to pay the ascertained indebtedness of one thousand two hundred dollars and costs. ■Without any supplemental pleadings or steps, at a subsequent term of the court another apparently original judgment was rendered “upon the petition, answers, and various reports, exhibits, and surveys, evidence,” etc., in which said land is directed to be sold on credits of nine, twelve, and eighteen months, and without any restriction as to price. The commissioner sold the land in the manner prescribed in the first judgment, and on the terms prescribed in the last. The report of sale was confirmed, but afterward the heirs in possession refused to surrender on the ground that the sale was void. The circuit court decided that the second judgme7it and sale were void. On the appeal of the purchaser of the land, that judgment is affirmed. 2. The sale of land can only he valid when made in pursuance of the judgment; and 3. No invalid sale can be sanctified by a mere confirmation of the commissioner’s report.
69 Ky. 69Bracken County Court v. Robertson County Court (1869)
Case 18 — PETITION FOR MANDAMUS — CITED Act of February 11, 1867, Session Acts, 37, sec. 8. CITED Acts of February 11 and 27, 1867, Session Acts, 87 and —.
69 Ky. 75Bryant v. Hunter (1869)
APPEAL PROM ADAIR CIRCUIT COURT. 1. Recitals in a deed that given cvmounts were paid are not conclusive evidence as to who paid them, hut only prima fade, and therefore susceptible of demonstration by other orparol evidence. 2. Real estate purchased by a firm, on firm account, must be held as firm assets for all the purposes of the partnership, and then for reimbursing the individual partners for advances. . 3. A party called to testify against his legal interest is a competent witness. 4. A party to a suit who is not a party to the issue is a competent witness. 5. The interest of one partner in partnership real estate being levied on to satisfy an individual debt, the other partner filed his petition claiming a prior lien for advances. The partner whose interest was levied on, although a party to the suit, but not to the issue, was a competent witness for his co-partner to prove that the latter had advanced the money paid on such real estate, etc.
69 Ky. 77Clore v. Bailey (1869)
APPEALS FROM GALLATIN CIRCUIT COURT. 1. Sureties of a sheriff have no lien on money collected by such SHERIFF AS SUCH, AND BY HIM PAID OVER TO OTHER PARTIES TO WHOM he was indebted. — The court soAj.: “It would be a dangerous precedent to settle that those receiving money from officials — such as collectors of state revenue and military or bounty funds — would be responsible to the sureties of such officials whenever they faded to account as required by law.” 2. The chancellor will not take money from one party and pay it over to others who have no better or more meritorious claim to it than he had.
69 Ky. 81Dugan v. Massey (1869)
APPEAL FROM DAVIESS CIRCUIT COURT. 1. Dowei- of surviving wife is not barred by a fraudulent deed wliicli is set aside by the judgment of a court at the instance of creditors. But 2. Dower is barred by failure to take an appeal or file a bill of review within TnREE years. — The widow being a party to a suit in which it was alleged and adjudged that she was barred of her dower right in the land. Held, that While that judgment was erroneous, and might have been reversed as to her, on an appeal taken within three years it was not absolutely void. By the lapse of three years after judgment, and her failure to prosecute an appeal within that time, she was barred of both her right of appeal and from a review of that judgment.
69 Ky. 85Allen v. Perry (1869)
APPEAL FROM HARDIN CIRCUIT COURT. Newly-discovered evidence — New trial. — To entitle a party to a new trial on the ground of “ newly-discovered evidence,” the discovered evidence must he of such permanent and unerring character as to preponderate greatly, or have a decisive influence upon the evidence to he overturned hy it. This rule has not been changed or relaxed by the Civil Code. See opinion for a discussion of the alleged newly-discovered evidence, showing' its insufficiency in this case to authorize the circuit court to grant a new trial under subsection 7 of section 369 of the Civil Code.
69 Ky. 91Commonwealth v. Hadcraft (1869)
APPEAL FROM KENTON CRIMINAL COURT. 1. Sale of liquors to minors, defective indictment for. — The Act of March 3, 1860 (Myers’s Supplement, 517), defines this offense to be a sale of liquor to a white minor “without the written consent or request” of the father or mother or guardian of the minor. An indictment charging a sale “ without then and there having the written consent and request of the father, mother,” etc.: Held, that this indictment required the defendant to have had not only the written consent, but also the loritten request, and that the facts stated in the indictment did not constitute the offense defined by the statute, and the motion in arrest of judgment was properly sustained by the lower court. 3. The only question arising on a motion in arrest of judgment in a criminal or penal case is whether the facts stated in the indictment constitute a public offense within the jurisdiction of the court. (Criminal Code, sec 371.)
69 Ky. 94Commonwealth for Scott v. Kendall (1869)
APPEAL PROM NICHOLAS COUNTY COURT. 1. An appeal in ’bastan-Ay cases directly from the country court to the court of appeals, by the cormnomoealth, is not authorized by section 12 of the act of June 3, 1865, to reduce into one the bastardy laws of this commonwealth. (Myers’s Supplement, 62.) Said section 12 provides . for an appeal from the county court to the court of appeals by the adjudged father alone. Appeal by the commonwealth is dismissed for want of jurisdiction. 2. The amendment of March 1, 1860, to section 20, Civil Code, giving the circuit courts “appellate jurisdiction of the judgments and final orders of the county courts in cases of bastardy,” is not repealed by section 12 of the said act of June 3, 1865. (Myers’s Supplement, 62; Lewis v. Commonwealth, 8 Bush, 541.)
69 Ky. 97Gossom v. Badgett (1869)
APPEAL FROM -WARREN CIRCUIT COURT. 1. Joint-obligors — Action may be' brought against all or any of them. — Though, before the adoption of the Code of Practice several actions could not be maintained on a joint-contract, the rule of the common law is now so changed that “when two or more persons are jointly bound by contract the action thereon may be brought against all or any of them. '(Civil Code, sec. 89.) 3. Plaintiff can recover only upon the proof of the cause of action alleged in the pleadings. — There is no provision of the Code of Practice abrogating this principle. (Kearney v. City of Covington, 1 Met. 339.) 3. Allegations unproved not a variance, but a failure of proof.— Although no variance between allegations and proof is to be deemed material unless it has misled the adverse party (Civil Code, sec. 156), yet when the allegation to which- the proof is directed is unproved in its general scope and meaning, it is not to be deemed a variance, but a failure of proof. (Civil Code, sec. 158.) Allegation of a joint undertaking — Proof of a separate agreement a failure of proof. — Under the jn'esent as well as the former system of practice, where the plaintiff, though proceeding against a single defendant, alleges a joint undertaking of the defendant and another, and proves only a separate agreement of the defendant, there will be a failure of proof for want of identity "between the cause of action proved with that which is alleged.
69 Ky. 103Ironton Rolling Mills Co. v. Ross's Adm'r (1869)
APPEAL FROM GREENUP CIRCUIT COURT. An attorney is liable on the covenants of his receipt for notes for collection. — L., as attorney for R. M. Co., placed two notes due said company in the hands of R., an attorney at law, for collection, as shown by his receipt, in which he covenanted, to wit, “ which I am to collect if I can, and account for when collected.” Held, First, that R. M. Co. could maintain an action on the covenant in said receipt against R. for his failing to account and pay over money collected by him in satisfaction of said notes. (1 Story on Contracts, see. 188.) Second, that a payment of the notes to the firm of S. & R. was equivalent to a payment to R., and authorized a recovery against him. Third, that the action was not in the nature of assumpsit as for money had and received, but it was an action on the covenants of the receipt. Therefore the action was not barred by the lapse of five years after the payment of the notes.
69 Ky. 107McKegney v. Widekind & Co. (1869)
Case 28 — PETITION ORDINARY — CITED 1 Greenleaf on Evidence, secs. 304, 284. 1 Parsons on Contracts, 430. Civil Code, subsec. 4 of sec. 125. CITED 1 Greenleaf’s Ev., secs. 275-6, p. 351; secs. 281, 284, 282. 16 B. Mon. 6, Wright v. Shelby Railroad Company. 16 B. Mon. 284, Spurrier’s heirs v. Parker, &c. 16 B. Mon. 319, Western v. Pollard. 1 Gow R. 74, Campbell v. Hodgson. 1 Mass. 297, Lewis v. Gray. 8 Met. (Mass.) Lopham v. Whipple. 2 Parsons on Contracts, 5th ed., 553. 1 Starkie Rep. 267, Jeffrey v. Walton. 2 Mau. & Gr. 452, Sweet v. Lee. 16 Penn. 43, Edwards v. Goldsmith.
69 Ky. 111McMurray v. Shuck (1869)
Case 29-MOTION AND RULE — CITED 1 Bush, 110, Anthony, &c. v. Wade. CITED Civil Code, secs. 225, 235. Revised Statutes, 1 Stanton, 423, 486.
69 Ky. 113Galloway v. Bethume (1869)
Case 30 — PETITION ORDINARY — CITED Civil Code, secs. 215, 211. 3 Blackstone, 400. CITED 18 B. Mon. 567, McKee v. Pope. Civil Code, secs. 211, 212, 215.
69 Ky. 115Moriarity v. Vessey (1869)
Case 31 — PETITION EQUITY — APPEAL PROM BOYD CIRCUIT COURT. Lien reserved in a deed is not embraced by the statute resulaitno SALES OP ENCUMBERED PROPERTY UNDER EXECUTION. Land encumbered by a lien for unpaid purchase-money reserved in the conveyance thereof may be levied on and sold to satisfy an execution which issued on a judgment rendered for such unpaid purchase-money. Such a lien is not embraced by section 1, article 15, chapter 36 of the Revised Statutes, regulating sales of encumbered property. (Bondurant v. Owens, 4 Bush, 663.) Land sold to satisfy such an execution is not subject to redemption if it sells for more than two thirds of its appraised value.
69 Ky. 118Oppenheimer v. Riley (1869)
Case 32 — PETITION EQUITY — RULE— CITED Civil Code, sec. 235. CITED 2 Greenleaf, sec. 278. 3 Met. 558. 2 Met. 209, Schwein v. Sims. Civil Code, secs. 235, 251, 257, 254. 2 Met. 445, Hazelrigg v. Donaldson. Act of January 20, 1864, Myers’s Supplement, 206.
69 Ky. 123Shean v. Cunningham (1869)
Case 33 — PETITION ORDINARY — CITED Revised Statutes, Myers’s Supplement, sec. 2, p. 694. 17 B. Mon. 325, Masterson v. Hagan, &c. 4 J. J. Mar. 332, Oifut v. Stout’s adm’r. 1 Litt. 212, Dickson v. Smith. 3 Mon, 157, White v. Green. 3 Mon. 138, Stone, &c. v. Weatherby. CITED Civil Code, secs. Ill, 341, 374, 397.
69 Ky. 127Farmers Bank v. Commonwealth (1869)
APPEAL PROM GREENTJP COUNTY* COURT. Land belonging to Farmers Bank op Kentucky is not subject to TAXATION POR COUNTY PURPOSES NOR POp STATE REVENUE. The charter of the Farmers Bank of Kentucky provides that its cashier shall, on the first day of July in each year, pay to the state treasury “fifty cents on each one hundred dollars of stock held and paid for in said bank, which shall be in-full of all tax or bonus,” etc. (See act incorporating said bank, Session Acts, 1849-50, p. 7.) By paying the fifty cents on each One hundred dollars of stock said bank was to be discharged fronnthe payment of all and every other tax.
69 Ky. 129Ledford v. Smith (1869)
Case 35 — PETITION EQUITY — CITED 17 B. Mon. 143, Neal, &C. v. Davis. 1 Met. 563, Cottman’s adm’r v. Martin, &c. 18 B. Mon. 650, Chapman, &c. v. Stockwell. 3 Met. 253-4, Gritton y. McDonald, &c. Revised Statutes, sec. 26, chap. 80, 2 Stanton, 230. 2 Bush, 207, Moupin v. McCormick. 2 Bush, 91, Long v. Burke. 2 Duvall, 44, Griswold v. Hepburn. Printed Decisions, 150, Ewing y. Thompson. 3 Bush, 340, Stokes v. Warren. 4 Bush, 125, Pack v. Carder. 4 Bush, 639, Beyland v. Sewell and wife. CITED Revised Statutes, sec. 26, chap. 80, 2 Stanton, 230. 2 Bush, 207, Maupin v. McCormick. 3 Bush, 670, Ricketts, &c. v. Lambert. 10 Wheat, 347. 1 Barrows, 457, Miller v. Race. 3 Bush, 342, Stokes v. Warren.
69 Ky. 133Ford v. Buckeye State Insurance (1869)
Cases 36, 37 — PETITIONS ORDINARY — CITED 1 G. & H.’s Indiana Statutes, 397, 398, 20 Ind. 520, Rising Sun Ins. Co. v. Slaughter. 31 Conn. 518, Woodberry v. Charter Oak Ins. Co. 25 Conn. 51, Beebee v. Hartford Ins. Co. 2 Allen (Mass.) 398, Washington Ins. Co. v. Hastings. 1 Allen, 437, Roche v. Ladd. 32 Barbour, 626, Huntley v. Merrill. 3 Comstock, 267, Hyde v. Goodnow. 8 Eng. (Ark.) 461, Lindaner v. Delaware Las. Co. Parsons on Mercantile Law, 493. 2 Bush, 226, Archer v. National Ins. Co. Revised Statutes, Act of March 3, 1856, 2 Stanton, 274. CITED 4Bush, 289, Union Insurance Company v. Groom. Ind. Stats. G. & H.’s 2d ed., p. 397, sec. 56; pp. 398-401, 372. 14 Indiana, 239, Igo v. State. 24 Indiana, 295, Grubbs y. State. 17 New York, 609, Miller v. Hamilton Fire Ins. Co. 5 Duer, 101, Miller y. Hamilton Fire Ins. Go. 82 Barbour, 626, Huntley v. Merrill. 3 Comstock, 267, Hyde v. Goodnow. 2 Kernan N. Y. 258, Western y. The Genessee Mut. Ins. Co. Revised Statutes, 2 Stanton, 274. 4 N. Y. Statutes (Edmunds), p. 213, sec. 3. 20 Barbour, 68, People v. Imlay. . 5 Indiana, 96, Kentucky Mut. Ins. Co. y. Jenks. 31 Penn. 532, Thornton y. Western Reserve Farmers Ins. Co. 20 Indiana, 520, Rising Sun Ins. Co. v. Slaughter. 25 Indiana, 589-40, Now England 3hs. Co. v. Robinson. 18 Missouri, 229, Columbus Ins. Co. v. Walsh. Phillips on Insurance, 3d ed., sec. 1832. 2 Arnould on Insurance, 1216. 1 Parsons on Marine Insurance, 512. 2 Douglass, 585, Lorraine v. Tomlinson.
69 Ky. 141Louisville & Nashville R. R. v. Hodge (1869)
APPEAL FROM WARREN CIRCUIT COURT. Obstructing natural flow of water and causing occasional inundations of plaintiff’s lot. — For damages thus sustained action of TRESPASS MAINTAINED. In adjusting the grade of the railroad the L. & N. R. R. Oo. made an embankment about six feet high across Main Street in the town of Bowling Green. This necessitated a correspondent elevation in the grade of that street opposite plaintiff’s lot. At the instance of the municipality, and for the convenience of the citizens, that extension of the embankment was constructed by the railroad company as desired. Before that extension plaintiff’s lot was higher than the level of that street, and the elevation of the track of the railroad with its culvert would not have obstructed the flow of the water from the lot to a sink below and across the street. But the extended embankment, with its two culverts, occasionally obstructs the flow so much as by stagnation or refluence to flood a portion of plaintiff’s lot, and not only injuring its grass and flowers, but annoy its occupants, and subject them and their visitors to inconvenience. For that imputed wrong the plaintiff obtained a verdict against the L. & N. R. R. Co. for five hundred dollars, and the circuit court remitted one third and rendered judgment for the residue. On the appeal of the railroad company the judgment of the circuit court is affirmed on several grounds stated in the opinion.
69 Ky. 144Evansville, Henderson & Nashville Railroad v. Grady (1869)
Case 39 — PETITION ORDINARY — CITED Charter of H. & N. R. R. Co., Acts 1850-51, vol. 2, 281. 17 B. Mon. 173, Henderson, &c. R. R. v. Dickinson. 1 Bush, 153, Cornellison v. Cornellison. Civil Code, secs. 2, 3, 29. 3 Harring (Del.) 3 64, Graham v. Anderson. 9 B. Mon. 201, Trustees of Dover v. Pox. 8 B. Mon. 232, Rowan’s ex’rs v. Portland. 11 B. Mon. 163, Wickliffe v. City of Lexington. 33 Vermont, 311, McCauley v. Western R. R. Co. 1 Red&eld on Railways, 284. 3 Bush, 590, Parker v. Jenkins. 8 Dana, 289, Lex. & Ohio R. R. Co. v. Applegate. 4 Litt. 322-28, Jackson v. Winn. CITED Constitution of Kentucky, sec. 14, art. 13. 15 B. Mon. 99, Bowman v. Wickliffe. 16 B. Mon. 586, Kountz v. Brown, &c. STATEMENT OE THE CASE. It appears in the pleadings and evidence in this case that the Henderson & Nashville Railroad Company, in 1858, entered upon Grady’s land to grade its road-bed; that Grady at first objected to the entry, bnt consented upon the assurances of the railroad engineer that his damages should be thereafter assessed and paid. The road-bed was graded with Grady’s knowledge, and without further objection from him. This company failed to pay Grady for his land, or for his damages for the right of way; and, having suspended operations, Grady inclosed his land and the road-bed over it. The Evansville, Henderson & Nashville Railroad Company, in 1867, purchased the property, rights, franchises, etc., of the Henderson & Nashville Railroad Company. After making said purchase said company entered upon Grady’s land, opened his fencing, exposed his crop to damage, and proceeded to complete the railroad, etc. Grady sued the company for trespass, claiming six hundred dollars damages. The company claimed that it had a right to enter upon the land; that the right of way belonged to it; that as Grady consented to'the first entry and grading of the road in 1858, he was estopped from asserting any claim for. damages, and that he was also barred by lapse of time, etc. Grady recovered a judgment for three hundred dollars. On the railroad company’s appeal that judgment is affirmed.
69 Ky. 146Security Insurance v. Bronger (1869)
Case 40 — PETITION OBDINABY — CITED Session Acts, 1865-6, p. 378. 1 Met. 523, Eminence Mut. Ins. Co. v. Jesse. 1 Ins., 5th edition, 475, subsection 874. 1 Amould on Insurance, 579. 2 Phillips on Insurance, 5th edition, 653, subsec. 2122. Civil Code, sec. 161, and note a, Myers’s Code. 8 B. Mon. 637-9, Ky. and L. Mut. Ins. Co. v. Southard. 1 Phillips on Insurance, 5th edition, pp. 47, 48, subsec. 70. CITED 2 Am. L. O. 460, Locke v. North Am. Ins. Co. 10 Pick. 44, Strong v. Manufacturers Ins. Co. 18 Pick. 420, Eletclier v. Commonwealth Ins. Co. 2 B. Mon. 50, Franklin Ins. Co. v. Drake.
69 Ky. 149Shackleford v. Collier (1869)
APPEAL FROM SHELBY CIRCUIT COURT. 1. Ah assignee in bankruptcy may maintain an action to recover any property which might have been subjected by the bankrupt’s creditors if he had not become a bankrupt. 3. Separate estate of a married woman is such estate as has been vested in her, for her separate use, to the exclusion of her husband’s marital rights therein. (Petty v. Molier, 14 B. Mon. 347; Bowen v. Sebree, &c., 3 Bush, 113.) 3. No particular form of words is necessary to create a separate estate; so that it clearly appears that the title was passed and accepted with the intention that it should vest in the feme covert for her own benefit, to the exclusion of her husband. (2 Story’s Equity, sec. 1381; Clancy on Rights, 262; Hutchinson, &c. v. James, &c., 1 Duvall, 75.) 4. A SEPARATE ESTATE MAY BE CREATED WITHOUT A WRITTEN TRANSFER.— It. is not essential to the creation of a separate estate in property, the title to which, will pass without a written transfer or conveyance, that the property should be transferred by a written instrument. (McClanahan v. Beasly, 17 B. Mon. Ill; Tinsley, &c. v. Roll, &c., 2 Met. 509.) 5. But although a feme covert may acquire the possession of property as separate estate, 3ret if its acquisition was in consideration of the money or property of her husband which ivas subject to the claims of his antecedent creditors, the wife’s claim will generally be made to yield to those of the creditors. (Doyle, &c. v. Sleeper, &c., 1 Dana, 531.) 6. The real and personal estate in controversy in this case being in part the separate estate of the wife, and the remainder subject to the husband’s creditors: Held,, That so far as -the separate estate of the wife entered into the purchase or production of the real or personal property in controversy in this case, her title thereto is valid and is sustained; and as the savings by a feme covert out of her separate property are hers, the products and accumulations of her separate estate must be included in estimating her present interest in said property. After securing the title and possession of the wife as to her separate estate, the residue is subjected as estate which passed to the assignee of the husband by the assignment in bankruptcy.
69 Ky. 160Spalding v. Alexander (1869)
Case 42 — PETITION EQUITY — CITED Ery on Specific Performance, sec. 578, 574, 575, 576. 3 Litt. 358, Lewis v. Herndon. 4 Mon. 118, Jarman v. Davis. Act of 1792, sec. 2, 1 M. & B., 435. Act of 1796, 1 M. & B. 437. Act of 1810, 1 M. &. B. 447. 5 Mon. 87, Taylor, &e. v. Bush. 6 Mon. 286, Hynes, &c. v. Campbell. 1 McLean, 200, Watts v. Waddell. 12 Barr, 34, Guns v. Renshaw. 6 B. Mon. 422, Beckworth v. Kouns. 8 Gill, 337, Owings v. Baldwin. 2 P. Wm. 198, Marlow v. Smith. 3 Bibb, 366, Tyree v. Williams. 3Mon. 313, Cotton v. Wood. 3 Litt. 293, Campbell v. Harrison. Story’s Equity, p. 775. 3 Mon. 49, Oldham t. Wood. 4 Mon. 500, Cook y. Hendricks. 7 Mon. 143, Stevenson v. Dunlap. CITED 4 Mar. 56. 4 B. Mon. 488. 11 B. Mon. 322. 5 B. Mon. 455, Henry v. Graddy. 6 B. Mon. 366, Kereheval v. Swope. 9 Dana, 48, Miller’s heirs v. Johnson. 2 Dana, 288, Couchman v. Boyd. 5 B. Mon. 341, Daniel & Brick v. Smyth. 9 Dana, 470, Woodson v. Seott. 1 Johnson Chy. 379, Benedict v. Lynch. 2 Duvall, 183, Duvall v. Parker Story’s Equity, secs. 747, 751, 777. 3 Bibb, 366, Tyree v. Williams. 3Mon. 321, Mason v. Chambers. 6 Mon. 366, Kereheval v. Swope. 7 Mon. 656, Tevis’s representatives v. Richardson’s heirs.
69 Ky. 168Buckner v. Clark's (1869)
APPEAL FROM CHRISTIAN CIRCUIT COURT. A SURETY IS LIABLE ON A NOTE GIVEN IN PLACE OE A PREVIOUS NOTE ON WHICH nE WAS SURETY, BUT ON WHICH HE WAS RELEASED BY LAPSE OE TIME. To a suit or a note one of the defendants pleaded “that he had previously been his said brother’s security to Thomas P. Clark in a note dated January 33, 1853, due in one year thereafter, on which his brother had made several payments; that he and his brother had both resided all the time in the county where the suit was brought, and that neither had in anywise absconded, obstructed, or hindered suit or sendee of process; and that more than seven and near fourteen years having'elapsed after said first note became due, and before this one was given, he had, as his brother’s security, been released from all liability by reason of such lapse of time without suit; yet that in ignorance thereof and of his legal rights, he executed this note, which he would not have done had he known ho was by law released from the former one.” To the foregoing answer the circuit court sustained a demurred'. That judgment is affirmed.
69 Ky. 171Commonwealth ex rel. Bennyworth v. Radford (1869)
Oases 44, 45 — MOTION ON BOND TO SUSPEND SALE — CITED 4 Bush, 550, Sparks v. Shropshire. 3 Met. 470, Hooker, &c. v. Gentry, &c. 1 Met. 488, Smith and wife v. Long, &c. Revised Statutes, 3 Stanton, 8. Myers’s Supplement, 738. 1 Parsons on Contracts, 536. 7 Dana, 60, Crawford v. Smith. 4 Mon. 370, Hazelrigg v. Hill. 3 Littell, 309, Crump v. Bennett. Civil Code, sees. 709, 711, 713. 14 B. Mon. 114, Brown, &c. v. Alden, &c. 3 Met. 506-8, Johnson v. Ferguson. CITED Revised Statutes, sec. 17, chap. 47, 3 Stanton, 38. 18 B. Mon. 305, Daniel, &c. v. Robinson. 3 Met. 344, Stacker v. Whitlock.
69 Ky. 174Kenton Insurance v. Shea (1869)
Case 46 — PETITION ORDINARY — CITED Angelí on Eire and Life Insurance, secs. 140, 142, 143, and note 2. Ellis on Law of Fire and Life Insurance, 28. 5 Ohio, 461, Harris v. Ohio Insurance Company. 21 Mo. 97, Hutchinson v. Western Insurance Company. 22 N. Y. 402, Bigler v. The Central Insurance Company. 20 Barb. 635, same case. 16 Peters, 508-511, 512, Carpenter v. Providence Washington Ins. Co. 3 Robinson La. R. 384, Battaile v. The Merchants Insurance Company. 41 N. H. 175, Gale v. Belknap Insurance Company. 22 Pick. 418, Jáckson v. Massachusetts Insurance Company. 6 Cush. 342, Clark v. New England Insurance Company. 37 Maine, 137, Philbrook v. New England Mutual Insurance Company. 19 How. S. C. R. 318, Commercial Mutual Ins. Co. v. Union Mut. Ins. Co. 19N. Y. 306, Baptist Church v. Brooklyn Fire Insurance Company. 9 Barb. 191, Sexton v. Montgomery County Mutual Insurance Company. 5 Hill, 101, McEwen v. Montgomery County Mutual Insurance Company. 7 Cush. 175-181, Barrett v. The Union Mutual Insurance Company. 6 Gray, 169, Hale v. Mechanics Insurance Company. 12 Gush. 144, Conway Tool Company v. Hudson River Ins. Co. 1 Disney, 217, Madison Insurance Company v. Fellowes. 38 Mo. 85, Dietz v. The Mound City Insurance Company. 17 N. Y. 199, Lamatt v. Hudson River Fire Ins. Co., reported in note to Harper v. Albany Ins. Co. 11 Cush. 265, Worcester Bank v. The Hartford Fire Insurance Company. 12 Cush. 4G9, Pendar v. The American Insurance Company. 5 Foster N. I-I. 169, Goodall v. New England Insurance Company. 17 N. Y. 609, Milieu y. The Hamilton Fire Insurance Company. 5 Duer, 101, same case. 9 Cush. 470, Forbes v. Agawan Mutual Insurance Company. 5 Hill, 147, Potter v. Ontario Insurance Company. 20 Barb. 468, New York Central Ins. Co. y. The National Pro. Ins. Co. 23 Wend. 18, Lightbody v. The North American Insurance Company. 6 Gray, 204, Kennebec Co. v. The Augusta Insurance and Banking Co. 38 Barb. 402, Carroll v. The Charter Oak Insurance Company. 25 Barb. 189, Goit v. The National Protection Insurance Company. 5 Denio, 154, Frost V. The Saratoga Mutual Insurance Company. 19 Barb. 440, Yiall v. Genessee Mutual Insurance Company. 23 Conn. 244, Bovin v. The Connecticut Mutual Life Insurance Company. 4 Bush, 241, Baer v. The Phoenix Insurance Company. 16 Md. 260, National Insurance Company v. Crane. 5 Md. 165, The Associated Fire Insurance Company v. Assum. 45 Mo. O. W. Obermeyer et al. v. Globe Mutual Insurance Company. 2 W. & S. (Penn.) 506, Stacy v. Franklin Insurance Company. 86 Barb. 372-485, Gilbert v. Phmnix Insurance Company. 38 Penn. St. 250, Simpson v. Pennsylvania Insurance Company. 3 Gray (Mass.) 583, Lee v. Howard Fire Insurance Company. 8 Gray (Mass.) 33, Kimball v. Howard Fire Insurance Company. 33 N. H. 203, Fabyan v. Union Mutual Fire Insurance Company. 16 Peters, 495, Carpenter v. Washington Insurance Company. 4 Zabr. (N. J.) 447, Schenck v. Mercer Insurance Company. 10 Barb. N. Y. 285, Kennedy v. St. Lawrence County Mutual Ins. Co. 5 Duer N. Y. 101, Mellen v. Hamilton Fire Insurance Company. 3 Wis. 254, Kelley v. Troy Insurance Company. 16 Ohio R. 149, Cockerill v. Cincinnati Insurance Company. 14 B. Mon. 400, Lynn v. Burgoyne. 1 Phillips on Insurance, secs. 10, 864, 881, 5th edition. 35 N. H.-, Atlantic Insurance Company v. Goodall. 20 Ind. 342, R. I. Insurance Company v. Slaughter. Digest Fire Insurance Decisions, Littleton & Blatchley, ed. 1868, pp. 385, etc., secs. 23, 30, 32, 36, 38, 40, 48-72, inclusive. Western'Insurance Review, St. Louis, July, 1869, p. 293: Union Ins. Co. v. John A. Lackey; Central Ins. Co. v. John A. Lackey. CITED 40 Barb. 292, Carroll v. Charter Oak Insurance Company. 23 Wend. 22, Lightbody v. North Am. Insurance Company. 16 Barb. 511, Wilson v. Gennesseo Mutual Insurance Company. 5 Foster, 191, Goodall v. New England Fire Insurance Company. 5 Hill, 105, McBwen v. Montgomery County Mutual Insurance Company. 25 Barb. 192, Goit v. National Protection Insurance Company. 40 N. H. 382-3, Patton v. Insurance Company. 45 N. H. 21, Barnes v. Union Mutual Fire Insurance Company. 38 Ills. 106, New England Fire and Mutual Insurance Co. v. Shelton. 14 N. Y. 258, Ames v. New York Insurance Company.
69 Ky. 182Hester v. Wallace (1869)
Case 47 — PETITION ORDINARY — CITED 3 Met. 437, Musick v. Ray. New York Code (Vorhies), 196, note to subsec. 3. New York Code (Vorhies), 576, sec. 395. 18 Barb. 334, Chamberlin v. Hamilton. CITED Civil Code, sec. 673.
69 Ky. 185Prather v. Harlan (1869)
APPEAL PROM HICKMAN COMMON PLEAS COURT. 1. A REPLEVIN BOND SIGNED ON SUNDAY, BUT DELIVERED ON ANOTHER day, is binding. — In this case the replevin bond was signed on Sunday at church by the sureties, and delivered to the principal therein, who afterward, but not on a Sunday, delivered it to the deputy sheriff. Held, that the principal was made the agent of the sureties in the delivery of the bond to the officer; that the bond did not become obligatory until delivered to the officer. It can not fye regarded, so far as the sureties’ rights are concerned, as executed on Sunday. 2. A replevin bond is not vitiated, as a statutory bond, because not attested by the officer, nor by other mere faultiness or omission of some duty by the officer. (Hopkins v. Chambers, 7 Mon. 261.) 3. df the bond is merely faulty it map be quashed, upon proper notice made in proper time. But after abiding by and recognizing the efficacy of the bond from 1861 to 1865 without taking any steps to quash it, and raising no objections by legal proceeding until the latter date, such objections must be deemed as waived, even if they had been available if properly made. 4. Stay op execution on replevin bond por more than a year at INSTANCE OP SURETIES DOES NOT RELEASE THEM. — The execution ill this case issued on a replevin bond, and was levied on the principal debtor’s land. At the request of the sureties the execution was stayed March 6, 1861, upon the sureties executing a writing “ to remain bound for said debts in as full and complete manner as if the same had not been stayed in any way, hereby consenting that the collection of said debt shall be delayed so long as the said Prather (the plaintiff) map desired’ In 1S65 the plaintiff caused another execution to be issued. The sureties’ land being levied on, they enjoined and claimed, first, that said bond was not obligatory because signed by them on Sunday; and second, that they were released because “the plaintiff had permitted more than one year to elapse after the issual of an execution before he took out another.” Both questions are decided against the sureties, their injunction dissolved, and petition dismissed..
69 Ky. 190Yeiser v. Brown (1869)
APPEAL FROM HANCOCK CIRCUIT COURT. 1. Questions or law should be determined by the court. 1. “The court instructs the jury that in so far as defendant’s answer set out the terms of the contract between the plaintiffs and defendant not being specifically denied in the reply, the jury must take them as true.” This was erroneous. 2. “That in so far as the answer states acts done by defendant in performance of said contract, they must for the same reason be taken as true.” This was erroneous. 3. “That in so far as the answer alleges acts which the plaintiffs failed to do in performance of their contract, they must be taken as true.” The foregoing instructions ought not to have been given. Held, that Whether the material facts alleged in the answer, which was made a cross-petition, were specifically denied or notin the reply, and the allegations of acts done by defendant in performance of his contract, and acts to be performed by plaintiffs, had or not been controverted in the reply, were questions of law to he determined hy the court. 2. The court should determine not only what allegations arc material, but also whether or not such material allegations have been specifically controverted, and inform the jury what facts are to be considered as true undef the pleadings in the action. (Tipton v. Triplett, 1 Mot. 570.)
69 Ky. 192Bennett v. Titherington (1869)
Case 50 — PETITION ORDINARY — CITED 5 B. Mon. 234. 3 Met. 457, Halbert v. McCulloch. 7Mon. 598, Nautz v. McPherson. 2 Bibb, 418, Gilpin v. Davis. 2 Equity Leading Cases, pp. 37, 38, 44, notes to pp. 40-43. 9 Vesey, 24. 10 Wendell, 13. 6 W. & S. 469. 2 Leading Cases, 85-48, Basset v. Nosworthy. 1 Leading Cases, 406, Marsh v. Lee. Story’s Equity, sec. 411. 3 Sergeant & Kawle, 430, Toust v. Martin. 7 Peters, 271. 10 Peters, 177-211. 8 Wheaton, 446. Civil Code, sec. 125. Revised Statutes, sec. 15, chap. 24. 1 Johnson’s Chancery, 300, Erost v. Buckman. 2 Sumner, —, Elagg v. Maine. CITED 2 Bibb, 418, Gilpin v. Davis. 7 Mon. 600, Nautz v. McPherson. 5 B. Mon. 234, Hally v. Oldham. 3 Met. 457, Halbert v. McCulloch. Acts of 1831, secs. 6, 10,1 M. & B. “Conveyances.” Revised Statutes, secs. 14, 15, 16, 23, 24, chap. 24. 9 Dana, 225, Applegate v. Gracey.
69 Ky. 198Brown v. Farmers Bank (1869)
APPEAL EROM ERANKLIN CIRCUIT COURT. By proving ms claim the creditor oe a bankrupt waives all right OE ACTION AND SUIT ON SUCH CLAIM AGAINST THE BANKRUPT. (SeC. 21, General Bankrupt Law of 1867.) A bankrupt who was indebted to the Farmers Bank of Kentucky had deposited to his credit in that bank two hundred dollars and four cents. The bank proved its entire claims against the bankrupt without giving him credit or deducting the amount of his deposit. The assignee of the bankrupt in his suit against the bank is entitled to recover a judgment against the bank for the amount of the deposit to the credit of the bankrupt. The subsequent assertion of a part of its claims by the bank as a set-off against the claim of the assignee for the amount of the deposit was equivalent to the prosecution of an original suit upon said claims against the prohibition of the bankrupt law.
69 Ky. 200Crawford v. Woods (1869)
APPEALS PROM MERCER CIRCUIT COURT. 1. A residua/ry devisee charged, with the duty of living with and taking care of his mother, etc., may transfer his residuary interest, and the trusts imposed on liim by her consent may be performed by Ms vendees. 2. Possession of real estate under a parol contt'act of purchase, in tMs case, is held to be notice to creditors of the vendor. 3. Parol vendor adhering to his contract, his creditors can not interpose between him and his vendees in possession merely because the contract was not written. 4. A parol vendor of land is a competent witness for Ms vendees to prove the contract under which they were in possession.
69 Ky. 204City of Covington v. Boyle (1869)
EOTJR APPEALS EROM KENTON CIRCUIT COURT. 1. “The city council shall home power, without a iietition from the owners or holders of property along the line of the street, square, or portion of the street, alley, market-space, or other public place to be altered, repaired, or renewed as aforesaid, to cause the same to be done, in any manner it may deem proper, at the cost and expense of the owners of lots and parts of lots fronting or abutting on the same.” (Act of March 9, 1808, amending charter of city of Covington, Session Acts, vol. 2, p. 427.) Held, that under the foregoing “A majority of the members of the council of the city of Covington forms a quorum, and can perform the business allotted to their body unless restrained by some specific inhibition. Whatever therefore may have been the requirements of the original charter as to a unanimous vote of all the members elect to the council, this amendment authorized the council to do these things without requiring a unani mous vote of all the members elected to it. Hence that body, which constituted a council, whether all the members belonging to it were or not present, could order the work to be done.” 2. An ordinance of the city council of Covington directed in general terms, the repairing and renewing certain named streets within certain defined boundaries, and then specified what kind of repairs, how to be made, and with what kind of materials within each district. It then empowered the city engineer and the internal improvement committee to superintend and direct said improvement within each district, to determine where and to what extent the repairs within it should be made, and how much of the old material should be used, etc. Held, that this ordinance was valid. 8. The cost of such improvements being assessed on the lineal front feet of the district instead of against each lot-owner: Held, “The ownership may change after the expense was incurred, in which case the vendee would have the right to have the assessment paid by his vendor. “But as the assessment on the front feet of each lot was virtually an apportionment on each owner thereof, we would not reverse on this possible error to a subsequent vendee when no suggestion is made that either of the defendants had, since the work was done, become the owner.”
69 Ky. 210City of Covington v. Dressman (1869)
Cases 58-61 — PETITIONS EQUITY —
69 Ky. 215Selman v. Lee's Heirs (1869)
APPEAL EEOM CAMPBELL CIRCUIT COURT. Decision on questions op identity op decedent, and op heirship. John Lee, the son of a tallow-chandler in the City of New York, studied law, spent his patrimony in high living in that city, and leaving William Lee, his only brother, he disappeared from that city in 1823 or in 1824, and thereafter remained unknown and unheard of by his New York friends and relatives. John Lee, a journeyman tailor, made his appearance in Maryland in 1823 or 1824, worked at that trade, married, and had two children born to him. In 1827 or 1828 he disappeared from Maryland, abandoned his wife and children permanently, and was never again heard of by his acquaintances in that state. John Lee settled in Newport, Kentucky, about 1827-8, and without marrying or having a recognized wife in that place he continued to reside there, accumulating considerable property, and died in 1855 intestate and without heirs, as it appeared to his intimate friends in that place. The children of William Lee, of New York, claim that the New York and Newport John Lee were the same; that he settled in Newport in the year 1824; and that they were his lawful heirs. The children of the Maryland John Lee claim that the New York, Maryland, and Newport John Lee were all one and the same individual, and that they were his lawful children, and consequently his lawful heirs. See opinion for a recitation, discussion, and analysis of the evidence showing that the New York, Maryland, and Newport John Leo were the same identical individual, and that the children of the Maryland wife were his lawful heirs.
69 Ky. 232Trustees of Hawesville v. Hawes's Heirs (1869)
Case 63 — PETITION ORDINARY — CITED Session Acts, 1835, pp. 242-3. 1Marshall, 153, McMillen v. Brown. 1Marshall, 406, Coleman v. Morrison. 4 Littell, 120, Trustees of Falmouth v. Horter. 4 Littell, 322, Jackson, &c. v. Winn’s heirs. 1 Wheaton, 292, Walden v. The Heirs of Gratz. 8 Dana, 50, Kennedy’s Heirs v. Trustees of Covington, &c. 3 B. Mon. 442, Trustees of Augusta v. Perkins. 5 Mon. 402, Pemberton v. Riddle. 7 B. Mon. 685, Wickliffe v. Bascom. 24 Pick. 109, Arnold v. Stevens. 1 Bouvier’s Law Die. 667, “Highway.” 4 Viner’s Abr. 502. Comyn’s Dig. Chemin (A 2). Angelí on Highways, sec. 315. 1 Barr, 133.' 1 N. H. 16. 1 Summer C. C. 21. 3 Rawle Penn. 495. 10 Peters, 25. 6 Mass. 454. 15 Johnson, 447. 11 Maine, 463. 3 Kent, 433. 4 Day Conn. 228. 13 H. H. 381. 8 Mote. (Mass.) 266. 2 R. I. 508. 2 Sandf. H. Y. 234. 2 Wharton (Penn.) 18. Ohitty on Contracts, 99, 7th rule of construction. CITED Session Acts, 1835, p. 242. Session Acts, 1829, p. 3. Angelí on Highways, secs. 142, 2, 24. 3B. Mon. 576, L., H. & P. Turnpike Road Company v. McMurtry. 2 Mete. 482, Kelly v. Donahue. 2 Washburn on Real Property, s. p. 636. 3 Kent, pp. 432-4, and note a to page 433, 3d edition. 2 Wendell, 472, the Matter of Lewis Street. 8 Wendell, 85, Livingston v. Mayor of -Hew York. 11 Wendell, 486, Wyman v. Mayor of New York.
69 Ky. 237Myles's Executors & Devisees v. Myles (1869)
Cases 64, 65 — PETITIONS EQUITY — CITED Roberts on Frauds (notes), 45, 46. 2Redfield on Wills, 281, 282. Fonblanque’s Equity (note 1), 225. lTBro. Cb. R. 130, Haynes v. Mico. 2Yesey, 411, Prince v. Stebbins, 411. 2Atk. 419, Lee v. Armadale. 2 Bro. Oil. R. 396, note, Rockman v. Morgan. 2 P. Williams, 616, Eastward v. Winkle. 3 P. Williams, 22V, 10 Yesey, 9. 2 Str. V28. 2 Do. G. M. & S. 318. 3 Man. & Gr. VV1. 1 Swanst —■, Goldsmith v. Goldsmith. CITED 2 Redfield on Wills, sec. 52, p. 517; sec. 62, p. 519. 2 Roper on Leg. 1050. Pric. Ohy. 312, Mondeth v. Winn. 3 Yesey, 561, Carr v. Eastbrooke. 1 P. Williams, 408, Ohancey’s case. 8 B. Mon. 398, Cloud and wife v. Clinkenbeard. 4 Dana, 137, Howard’s adm’r v. Burgen. 8 B. Mon. 423, Bull v. Me Crea. 9 B. Mon. 369, King’s ex’rs v. Hanna. Story on Agency, secs. 79, 58, 85, 97, 141, 237, 239, 256. 7 Richardson, 45, Williams v. Cochran. 1 Dana, 399, Taylor v. Knox’s ex’rs. 1 Johns. Cases, 174, Lawler v. Keaquick. 2 Cain’s Rep. 310, Drummond v. Wood. 4Binn, 361, Dusar v. Perit. 1 B. & Cres. 186, Prince v. Clark. 4Was. Cir. Ct. Rep. 549.
69 Ky. 251Jeffersonville Railroad v. White (1869)
Cases 66-68 — PETITIONS EQUITY CITED 1 Greenleaf on Evidence, sec. 394. 8 Meeson & Welsby’s Ex. Rep., Amos et al. v. Tempersly. 1 Ld. Raymond, 271, Evans v. Marlett. 8 How. 439, Grove v. Brien. 32 Conn. 91, Miner v. Norwich and W. R. R. Co. Parsons on Contracts, p. 60. Story on Agency, sec. 481. CITED Angelí on Carriers, secs. 331, 332. Story on Contracts, sec. 792. Story on Sales, secs. 390, 392. [Note — The opinion delivered by Judge Habdin on these three appeals, December 4, 1868, was suspended on a petition for a rehearing, and on a reconsideration Judge Robertson delivered a supplemental adhering opinion, November 25, 1869.]
69 Ky. 259Carpenter v. Stevenson (1869)
APPEAL PROM HARRISON CIRCUIT COURT Damages embraced by attachment bond. — When, by an attachment which is wrongfully obtained, a party is prevented from performing a contract, and material or property prepared or procured to enable him to do so is thus depreciated in its value to him, and damage is consequently sustained, such damage to the materials, and the damage sustained by being prevented from completing the work, are embraced by the attachment bond. (Sedgwick on the Measure of Damages, 74)
69 Ky. 263Commonwealth v. Smith (1869)
APPEAL FROM JOHNSON CIRCUIT COURT. Indictment for “malicious mischief.\ in the shooting and killing by defendant of the sheep of A. C., willfully and unlawfully, without the owner’s consent.” The circuit court sustained a demurrer to this indictment. ' On this appeal by the commonwealth that judgment is reversed. Held, First, “by section 7, article 25, chapter 28, Revised Statutes (1 Stanton, 411), it is enacted that if any person unlawfully, but not with felonious intention, destroy or injure any property, real or personal, of another, he shall be subject to indictment and fine of from ten to two hundred dollars;” that in the indictment above the offense, and in what it consisted, is directly charged; but it is named as “malicious mischief ” instead of “ willful trespass.” Second, that the offense charged in said indictment was at common lam known as malicious mischief, and our statute aforesaid has enacted that such trespass to personal property shall be an indictable offense, but limits the discretion of the jury, which the common law did not.
69 Ky. 266Commonwealth v. Whaley (1869)
APPEAL PROM ROBERTSON CIRCUIT COURT. 1. Indictment for Hgamy, charged to have been committed in the following manner: “That the said J. W., on the 24th day of December, 1868, in the county and state aforesaid, and before the finding of this indictment, did then and there, having a wife then living, unlawfully marry Laurena Earley, against the peace and dignity of the commonwealth of Kentucky.” The judgment of the circuit court sustaining a demurrer to the foregoing indictment is reversed. 2. The word “ marriage ” has a technical meaning, and includes a compliance by the parties entering into that relation with all the legal forms and prerequisites to constitute them husband and wife, if neither is laboring under any disqualifying disability or legal obstruction at the time. 3. The charge that the accused unlawfully married a certain woman, having a wife living at the time, contains facts sufficient to constitute the ofíense of bigamy. 4. It is not necessary to aver in an indictment for “Hgamy" that the accused was not within any of the savings or exceptions of the statute. Such facts may be made available as a defense to the prosecution.
69 Ky. 268St. Louis Mutual Life Insurance v. Graves (1869)
Case 3 — PETITION ORDINARY — CITED 21 Penn. 466, Hartman v. Keystone Insurance Co. 4 Allen (Mass.) 96, Dean v. American Insurance Co. S American Law Register, 358. 4 Bligh, 194, Amicable Life Assurance Society v. Bland. 5 Man. & Gra. 639, Barrodale v. Hunter. 1 Hare, 390, Cook v. Block. 7 American Law Register, 300-2 and 506. 3 Man. & Gra. 437, Clift v. Schwabe. 13 Allen, 316, Cliffie v. Mutual Benefit Life Insurance Co. CITED Taylor’s Medical Jurisprudence, 307, 648. American Law Register, April, 1854, p. 360, Breasted, adm’r y. Farmers Loan and Trust Company. 4 Hill, 73. 4 Selden, 306. 2 Kent, 324, 333. 44 English Common Law, 319. 54 English Common Law, 455-71. 54 Maine, 224, Easterbrook y. Insurance Company. [In this case Judge Robertson delivered the opinion, in which Judge Peters concurred, and Chief Justice Williams delivered a separate opinion, in which Judge Hardin concurred. These opinions, differing as to the law as expounded by them respectively, agree in a reversal of the judgment of the circuit court.]'
69 Ky. 291Commonwealth v. Ball (1869)
Case 4 — BAIL BOND — CITED Criminal Code, sec. 617.
69 Ky. 295Commonwealth v. Davis (1869)
APPEAL PROM BOYD COUNTY COURT. A BASTARDY PROSECUTION CAN NOT BB DISMISSED BY THE MOTHER. — After a bastardy proceeding lias been initiated, and the court lias acquired jurisdiction over it, tlie mother has no legal control over it. On motion of the mother the court dismissed the proceeding. That judgment is reversed on appeal of the commonwealth, “ and the cause remanded for further prosecution for the relief of the county and the benefit of the bastard.” (Commonwealth v. Turner, 4 Dana, 511.)
69 Ky. 296Commonwealth v. Mills (1869)
Casb 6 — INDICTMENT — CITED Revised Statutes, sec. 88, chap. 84, 2 Stanton, 298. Revised Statutes, sec. 7, art. 2, chap. 84, 2 Stanton, 296. Ms. Opinion, Rich v. Commonwealth. Myers’s Code, p. 600. CITED Revised Statutes, sec. 38, art. 1, chap. 84. Criminal Code, subsec. 5, sec. 10, and secs. 117, 126, Wharton’s American Criminal Law, sec. 414.
69 Ky. 298Commonwealth v. Monarch (1869)
APPEAL FROM DAVIESS CIRCUIT COURT. KENO-TABLES WHAT INDICTMENT FOB SETTING UP AND KEEPING MUST aver. — This was an indictment for “setting up and keeping a keno-table, committed as follows: that he did on the --day of --, 1868, and on divers days since, in the county aforesaid, procure to be set up and to be kept a keno-table in a house under his control and in his occupation; . . it being a contrivance for betting, at which and whereby money and property was bet, won, and lost.” Demurrer to the foregoing indictment was properly sustained. Held, It is not averred that the keno-table is a contrivance ordinarily used for gaming; nor that it was a banking game kept for the ordinary purpose of betting, winning, and losing. This kind of table or contrivance is not specifically named in the statute, nor is it judicially known to the court; therefore the court say: “Without such equivalent averments we can not determine that it falls within the denunciations of section 6, chapter 42, Revised Statutes.” (1 Stanton, 563.) To convict under said section 6, chapter 42, Revised Statutes, it should appear that the table or machine or contrivance was such as is ordinarily used for gambling for money or property. It is essential that this should be averred as proved, for the indictment must allege the essential facts constituting the offense. (Ritte v. Commonwealth, 18 B. Mon. 40.) Nor is this indictment sufficient even under the 10th section of said chapter 42, Revised Statutes; for it is not averred that “he suffered or permitted any games at which money or property was bet to be played.”
69 Ky. 301Commonwealth v. Monarch (1869)
Case 8 — INDICTMENT— CITED Revised Statutes, sec. 6, chap. 42, 1 Stanton, 568.
69 Ky. 303Commonwealth v. Smith (1869)
APPEAL PROM LOUISVILLE CITY COURT. 1. Sale op goods by sample without license therepob. — The act of March 2, 1860 (2 Stanton, 805), prohibiting a sale by sample and without license, in the city of Louisville, of goods of a non-resident having no place of business in that city, is constitutional. Said act is not repealed by section 10 of the act of 1865 (Sess. Acts, p. 270), empowering the authorities of the city of Louisville to grant license for such trade. 2. An indictment for selling goods Toy sample and without license, under the statute, must charge a sale without Ucense.
69 Ky. 305Dugan v. Commonwealth (1869)
Case 10 — BAIL BOND — CITED Charter of City of Lexington, secs. 69 to 88, and sec. 96. Revised Statutes, see. 3, Act of Feb. 18, 1854,1 Stanton, 338. 3 Metcalfe, 478, Commonwealth v. Moore. 1 Bush, 176, Tomppert v. Lithgow. 3 Met. 409, Schneider v. Commonwealth. Criminal Code, sec. 80. 1 Duvall, 199, Commonwealth v. Roberts. 3 Bush, 478, Covington v. Commonwealth. 1 J. J. Marshall, 306, Hildreth’s heirs v. Mclntire’s devisees. 3 Bush, 15, Rice v. Commonwealth. CITED Revised Statutes, Myers’s Sup. 706, Act of February 5, 1866. 1 Session Acts, 1867, p. 454, and sec. 75. 6 Mon. 375-6, Ellison v. Stevenson. 3 Littell, 311, Stevenson v. Miller. 5 Littell, 199, Lolland v. Ewing. 3 Littell, 316, Commonwealth v. Arnold. Revised Statutes, 1 Stanton, 338, Act of February 18, 1854. 3 Bush, 17, Rice v. Commonwealth. 1 Mon. 83, Justices of Jefferson County v. Clark. 7 Johnson, N. Y. 549, People v. Collins. Andrews, 363, King v. Lisle.
69 Ky. 309Robinson v. Commonwealth (1869)
Case 11 — INDICTMENT FOR BIGAMY — CITED 18 Iredell, 289, State v. Bray 26 Vermont, 765, State v. LaBon. Revised Statutes, Act of Feb. 14, 1866, Myers’s Sup. 734. Revised Statutes, secs. 1, 2, 7, 8, 9, art. 1, chap. 47. Wharton]s American Criminal Law, sec. 2628. 1 Russell on Crimes, 290. 1 Hale, 693. 1 East P. G 466. 20 Ohio, 1, Shafher v. State. 3 Western Law Journal, 134, Ohio v. Peter Moore. CITED 1 Cox (C. L.) 202, Murray v. Queen. Revised Statutes, sec. 7, chap. 47.
69 Ky. 312Young v. Commonwealth (1869)
APPEAL PROM JACKSON CIRCUIT COURT. 1. Good character op prisoner. — Evidence of the good character of the prisoner is admissible, on the ground that an individual who has maintained an unblemished character up to the time when he is charged with crime may avail himself of that fact as some evidence that lie has not committed the crime with which he is accused. 2. Bad character. — The prosecution is not allowed to call witnesses to the general bad character of the prisoner unless to rebut the evidence of good character already adduced by the prisoner. 3. Evidence as to character must be restricted to the trait of character which is in issue, or ought to bear some analogy and reference to the nature of the charge; it being obviously irrelevant and absurd on a charge of stealing to inquire into the prisoner’s loyalty, or on a charge of treason to inquire into his character for honesty in his private dealings. (3 Greenleaf, 31-2.) 4. Impeaching the credibility of a witness. — The examination of witnesses called for the purpose of impeaching the credibility of a witness must be confined to his general reputation and not to particular facts. Every man is supposed to be capable of supporting his general reputation at any time, without notice; and unless his general character and behavior be in issue he can not without notice be prepared to meet a special or particular charge. 5. The regulan' mode of examining into general reputation of a witness is to inquire of the witness called to impeach him whether he knows the general reputation of the person in question among his neighbors. If he answers in the affirmative, then he should be asked what that reputation is. (1 Greenleaf, 461.) Unless he had stated that he was acquainted with his character among his neighbors at the time he testified, he should not be permitted to speak of it, nor should he be permitted to testify to particular acts. 6. Dying declarations. — In this case the deceased, at the time he made the declarations offered as evidence, stated that he did not believe the wound would kill him. A witness was examined, and proved that he was with the deceased about one hour after he made said declarations. Deceased said he had made the statement; that it was true; and that he had said to the party to whom it was made that he did not think ho would die, but that he believed he would die, and believed so when he made the statement; but that he was induced to so say because a man in the neighborhood had been shot some time before that, and detailed circumstances under which he was shot, and said he believed he would die; that man got well and was disgraced; and he did not say he thought he would die because it would be a reproach to Mm if he got well. This was sufficient evidence that the decla/i'ations were made under a sense of impending death upon the part of the decla/rant to authorize their admission. 7. Circumstances and grounds of a justifiable homicide.. — The accused, at his own house, was assaulted and shot at with a pistol by deceased; both parties fired again at each other; deceased left making threats, and was pursued and again fired at by accused; accused then returned toward his own house, when deceased pursued again, renewed the attack, and was fired upon and killed by accused. On the foregoing, and facts fully stated in the opinion, the court held that “If the accused had sufficient reason to apprehend, and did actually apprehend, that deceased would take his life, or that he was in continual danger of losing Ms life, or suffering great bodily harm from him, and that if he returned, to Ms house the attack would bo renewed upon him, he had a right to pursue his enemy until he might reasonably believe he was secure from danger; and if after having stopped the deceased returned and again assaulted him with deadly weapons, and he had cause to believe, and did actually believe, from his persistent attacks and previous threats, he would take his life or do him great bodily harm, and he slew him after having been assaulted, it was excusable homicide in self-defense.” (Phillips v. Commonwealth, 3 Duvall, 338; 3 Starkie on Evidence, side page 533.) 8. Unfairness' or misconduct of witness. — It is the duty of the court to prevent any unfairness or misconduct of witnesses, and not to substitute the jury instead of the court to determine such matters.
69 Ky. 321Campbell v. Wooldridge (1869)
APPEAL PROM CHRISTIAN CIRCUIT COURT. 1. Execution sales op encumbered property — When the purchaser ACQUIRES THE LEGAL TITLE — WHEN HE ACQUIRES A LIEN ONLY. When land encumbered by a vendor’s lien for unpaid purchase-money reserved in the conveyance thereof is levied on and sold under execution, the purchaser at such a sale acquires all the title of the execution defendant, subject to his equity of redemption, when the land has sold for less than two thirds of its valuation. 2. When land encumbered by liens created by the holder of the legal title, by mortgage, deed of trust, or otherwise, is levied on and sold under execution, the purchaser at such a sale acquires a lien, as provided in sec. 1, art. 15, chap. 36,' Revised Statutes, 1 Stanton, 488. 3. A lien for unpaid purchase-money reserved in a deed of conveyance, is not such an encumbrance as is embraced in and provided for by the statute aforesaid. The purchaser of land so encumbered acquires all the title of the execution defendant, subject to Ms right of redemption within a year in case the sale was for less than-two thirds of the valuation of the land. If the land is not redeemed, or is not subject to redemption, by paying the vendor’s lien the purchaser secures a perfect and absolute title to the land.
69 Ky. 326McDaniel v. Commonwealth (1869)
Case 14 — INDICTMENT— cited Criminal Code, secs. 247, 335.
69 Ky. 328Walton v. Broaddus (1869)
Case 15 — PETITION EQUITY — CITED Civil Code, secs. 713, 716, 30. 13 B. Mon. 392, Jones v. Letchex'. 2 Bush, 115, Bowen v. Sebree. 14 B. Mon. 247, Petty v. Molier. CITED Civil Code, sec. 716. Revised Statutes, sec. 8, chap. 97, 2 Stanton, 398.
69 Ky. 330Alexander v. Waller (1869)
Case 16 — PETITION EQUITY — CITED Revised Statutes, 2 Stanton, 461, see. 20, p. 462. 5 Littell, 96, McCampbell v. McCampbell. 1 American Chancery Digest, 165. 4 Desau. 305, 319, Dunlap v. Dunlap. 2 Redfield on Wills, 870. 37 Miss. Rep. 492, Morris v. Henderson. 2 Williams on Executors, pages 1460, 1461. 1 Dana, 208, Gore v. Stevens, &c. Story’s Equity Jurisprudence, sec. 479, 484. 18 B. Mon. 20, Cunningham v. Cunningham. 4 Bibb, 402, Payne, &c. v. Logan’s adm’r. 1 Com. Digest, 563. Revised Statutes, secs. 2, 3, 5, 6, chap. 23. 18 Hlinois, 19, Milbanks v. Milbanks. CITED 2 Jarman on Wills, side page 546, 549, 601, 390, 554-5, 600. 2 Redfield on Wills, 549, 457, 459, 466, n. 30, 467, 471, n. 42, 472, 475. 2 Beavan, 341, Stephenson v. Dawson. 1 P. Williams, 403, Long v. Short. 2 Williams on Executors, 1042. 3 Williams on Executors, 842. 2 Redfield on Wills, 865, 867, 868, 869, n. 33, 872. 9 Pink. 561, Hubbell v. Hubbell. Revised Statutes, sec. 25, chap. 21; sec. 5, 1' Stanton, 277. Revised Statutes, art. 19, chap. 36. 3 P. Williams, 325, Hazlewood v. Pope. 6 Jur. U. S. 879, Ion v. Ashton. 12 Law Library, Robertson on Succession, side page 209. Morrison, 4478, Drummond v. Drummond.
69 Ky. 346Glass v. Pullen (1869)
APPEAL PROM SCOTT CIRCUIT COURT. 1. P. had a lien upon two tracts of land, the property of the same debtor, upon one of which G. also had a lien junior to P.’s lien. P. waived, or by his conduct released, his lien upon the tract not subject to G.’s lien, which was more than sufficient to have paid P.’s claim. Held, that G. should be first satisfied out of the tract in lien to both. 2. If one creditor can resort to two funds, and another to but one of said funds, the former will be compelled to seek satisfaction out of that fund which the latter can not touch. 3. On the 1st of August, 1862, A. borrowed of G. legal-tender United States treasury notes, and agreed to pay their nominal amount in gold, with usurious interest, and executed his several notes therefor, payable in one, two, three, and four years. Held, that to the extent of the difference between the value of the currency when loaned and gold the obligation must be considered as an evasion of the usury laws. 4. The judgment upon a contract to pay in gold should be for the gold or its value in currency. 5. No equity or right of subrogation accrues to a surety in a replevin bond who has not paid the debt.
69 Ky. 352Hackett v. Metcalfe (1869)
Case 18 — PETITION EQUITY — APPEAL PROM PAYETTE CIRCUIT COURT. CITED Revised Statutes, 3 Stanton, 38, see. 17, art. 4, chap. 47. 3 Met. 533, Toombs v. Stone. 16 B. Mon. 376, Lillard v. Turner. Ms. Opinion, December, 1856, Bryan v. Bohannon. 13 B. Mon. 383, Bell & Terry v. Kellar. 14 B. Mon. 437, Petty v. Holier. 3 Bush, 486, Stone and wife v. Werts, &c. 3 Bush, 360, Craddock v. Tyler, &c. 3 Bush, 703, Connolly, &c. v. Braustler. 18 B. Mon. 301, Daniel, &c. v. Robinson. 18 B. Mon. 383, Williamson v. Williamson. 4 Met. 95, Hanly & Co. v. Downing, &c. 3 Met. 336, Marshall v. Miller. 3 Met. 344, Stacker v. Whitlock. 10 B. Mon. 330-1, Coleman v. Woolley’s ex’r. CITED 1 Duvall, 76, Hutchinson v. Janies. 14 B. Mon. 247, Petty v. Molier. 2 Met. 508, Johnson v. Ferguson. 2 Met. 521, Toombs v. Stone. Civil Code, sec. 123. 18 B. Mon. 261, Hughey, &c. v. Sidwell’s heirs. 13 B. Mon. 466, Bible v. Oaplinger. 14 B. Mon. 145, Brown v. Alden. 18 B. Mon. 306, Daniel v. Robinson. 18 B. Mon. 385, Williamson v. Williamson. 4 Met. 96, Hanley v. Downing. 3 Met. 244, Stacker v. Whitlock. 3 Litt. 12, Sharpe v. Wickliffe. 16 B. Mon. 486, Buck v. Breckinridge. 3 Bush, 210, Lee v. Morris. 52 Penn.-, Glidden v. Scruple. 2 Story, sec. 1385. 12 B. Mon. 329, Johnston, and wife v. Jones. 16 B. Mon. 374, Lillard v. Turner. Revised Statutes, 2 Stanton, 28, sec. 17, art. 4, chap. 47. 17 B. Mon. 59, Stuart v. Wilder. 3 Met. 334, Marshall v. Miller.
69 Ky. 356Moore v. Calvert (1869)
APPEAL PKOM SCOTT CIRCUIT COURT. 1. Testator devised land to Ms wife for life, remainder to Ms children. One of the children, a daughter, died before the termination of the life-estate; her interest in the land at her death descended to her children; her surviving husband was not entitled to an estate by the curtesy in that interest. 2. “If at the time the right of any person to bring an action for the recovery of real property first accrued such person was an infant, married woman, or of unsound mind, then such person, or the person claiming through him, may, notwithstanding the period of fifteen years has expired, bring the action within three years after the time at which the person to whom the right first accrued ceased to be under such disability as existed when the same so accrued, or died, which ever has happened first.” (Sec. 3, art. 1, chap. 63, Revised Statutes, 2 Stanton, 123.) 3. Where the right of entry has descended to heirs who are all under disability, or under the age of twenty-one years, at the time their right of action accrued, they all fall withM the saving of' the statute (as above) until such disability is removed from all. 4. If the heirs are all under the age of twenty-one years at the time the right of entry descended to them, then under said statute they will not be barred from bringing such action until three years after that disability is removed from all the heirs. 5. But if part of such heirs were of full age and not under disability at the time the right of entry descended to them, then under said statute, as under the statute of 1796, the saving of three years does not apply, and the disability of the others does not prevent the statute from running against all. 6. “ Bent after it is due shall ca/rry interest like other liabilities originating in contract. (Sec. 3, art. 2, chap. 56, Revised Statutes, 2 Stanton, 92.) This statute was intended to secure interest on rents originating in contracts, express or implied, and not to the recovery in suits for the land itself, and in which damages for its detention could also be recovered,- under section —, Civil Code. Interest is not allowed as matter of law on unliquidated damages for the use of land. 7. Use and occupation — Lasting; improvements__The claimants in possession are in no legal sense renters, but when holding even under an honest claim against the rightful owner they are responsible for use and occupation, and entitled to compensation for lasting and valuable improvements which ameliorated the land.
69 Ky. 361Graves v. Mattingly (1869)
Case 00 — PETITION EQUITY — CITED 2 Johnson’s Ch’y Rep. 515, Gillespie v. Moore. 2 Phillips on Evidence, 508. 1 Johnson’s Ch’y Rep. 429, Sleven v. Cooper. 2 Bibb, 246, Garten v. Chandler. 1 J. J. Mar. 84, Eishback v. Woodward. 5 B. Mon. 341, Davis v. Logan’s heirs. 3 Mar. 385, Nicholas’s heirs v. Jones. 1 Bibb, 203, Grant’s heirs v. Craigmiles. 3 Mon. 82, Ashbrook v. Watkins, &c. 2 Bibb, 272, Young v. Craig. 2 Bibb, 275, Cox’s heirs v. Strode. 2 Bibb, 451, Fisher v. May’s heirs. 5 Litt. 74, Thompson v. Patton. 1 Story’s Equity Jurisprudence, sec. 155. 18 Howard, 66, Bradford v. Union Bank. 4 Dana, 181, Campbell v. Johnson, &c. 4 J. J. Mar. 225, McGowan v. Hoy. Civil Code, sec. 126, and Myers’s note. 2 Williams on Executors, 1153. 4 Bush, 168, Worley v. Tuggle, &c. CITED 4 Bush, 168, Worley v. Tuggle, &c. 12 Ohio, 344, Lancaster, &c. v. Colgate. 14 Ohio, 81.
69 Ky. 366Hudson v. Agee & Son (1869)
APPEAL FROM MADISON CIRCUIT COURT. 1. Estray horses — When the poster acquires title. — The statute contemplates a retention of the horse by the taker-up for two years, so as to secure restitution to the owner for a reasonable time by reasonable diligence, 2. At the expiration of the two years, without demand by the owner, the title to the horse passes to the taker-up, subject to the assessed value to the owner. 3. The poster having disposed of the horse before the expiration of the two years, the owner, by making a demand' within that time of the poster, might recover the horse from any person in possession. 4. The sale of the poster’s prospective title, at the expiration of the two years without demand, divested the owner of his right to the horse, and substituted a right to its reported value, and the poster’s liability to a fine.
69 Ky. 369Cornwall v. Cornwall (1869)
APPEAL FROM LOUISIANA CHANCERY COURT. 1. Partnership real estate - as to when it shal be DEEMED PERSONALTY. When real estate is bought with the partnership funds, to be used in carrying on and facilitating the partnership business and purposes, and is used as a means of continuing and enlarging the partnership business and operations and profits, it then is partnership property, impressed with the characteristics of personalty for any and all purposes, not only as between the partners inter se and the firm and its creditors, but also as to distribution between the administrator, distributees, and heirs. In this case a lot and house were purchased with the partnership funds and for the partnership purposes, to be used as a factory in making candles and soap, one of the main businesses of the partnership. After dissolution of the partnership by death of one of the partners, it ivas not necessary to sell this property to pay debts of the firm, nor to pay advances by any of the partners. The surviving partner filed a petition against the widow and infant children of the deceased partner to sell this lot, under the provisions of section 543 of the Civil Code. Held, that The widow of the deceased partner is entitled to one third of the net proceeds absolutely, as a distributee, after the necessary exjienses are deducted. See opinion for a- list and discussion of English and American authorities on the foregoing questions. 2. Defective proceedings to sell lot in city of Lotjisvillb, under SECTION 543 OF THE ClVIL CODE, MAY BE PERFECTED BY SUPPLEMENTARY PROCEEDINGS. In this case the purchaser excepted to the sale because no one was appointed to talce care of the infants' interests, and other irregularities in the jiroceedings, under said section 543. His exceptions being overruled, the purchaser appealed. Held, that Before the purchaser should be compelled to pay the purchase price, the proceedings should be so far perfected as to assure to him a good legal title. But If the sale is beneficial to the distributees, supplementary proceedings should be allowed to perfect the title, and when so completed the purchaser should be compelled to pay the purchase price with interest, unless he should in the mean time bring the money into court. “ Wherefore the judgment compelling the purchaser to accept the title and pay the purchase price is reversed, with directions' for further proceedings consistent herewith.”
69 Ky. 375Hopkins v. Stout (1869)
APPEAL PROM SHELBY CIRCUIT COURT. 1. In September, 1856, Stout sued the administrator of Hopkins on a promissory note dated the 11th and jiayable the 12th day of May, 1849, indorsed, “Received on the within note twenty-three dollars, August 30, 1852. James Stout.” At the date of the credit Hopkins was living. His administrator neither controverted the partial payment indorsed nor alleged any other jiayment, but resisted judgment upon a plea of usury. Judgment was rendered against the administrator in 1860 for the debt and interest, less the twenty-three dollars credited as above. There being no personal assets, the judgment was never collected. In August, 1866, Stout brought this suit against the heirs of Hopkins for the debt aforesaid. The statute of limitations was the only defense pleaded by the heirs. The circuit court rendered judgment against them for the debt. On the appeal of the heirs thfit judgment is affirmed, Judge Hardin dissenting. Reid, 2. An acknowledgment of or promise to p>ay a debt before it is barred by time does not absorb or supplant the still subsisting cause of action, but operates to prolong the statutory limitation by cutting off the antecedent time. 3. After an action on a contract has been barred by limitation, a moral obligation may be a binding consideration for a new promise and different cause of action, and then the suit must bo brought on the new promise. 4. A partial payment on a note made before a bar by limitation is prima fade an acknowledgment that the residue is unpaid, and of a continuing liability therefor, and suspends the operation of the statute between the accrual of the cause of action on the note and the date of that payment. 5. An indorsement of a partial payment upon a note shown to have been made by the obligee in the life-time of the obligor, and before the cause of action was barred by limitation, is competent evidence for the obligee that at its date the amount indorsed was paid, and that the balance remained unpaid. 6. A judgment against the administrator is prima fade evidence against the heirs in a proceeding against them to subject land descended to them to the payment of the debt for which the judgment was recovered against the administrator of their ancestor.
69 Ky. 389Burnam v. Burnam (1869)
Case 24 — PETITION EQUITY — CITED 8 Dana, 214-15, Lashbrook v. Lee. 1 Mon. 80, Simms v. Kirtley. 11 B. Mon. 827, Cunningham v. Smith’s ex’rs. Colyer on Partnership, p. 77. 4 B. Mon. 491, Divine v. Mitchum. 16 B. Mon. 686. 1 Parsons on Contracts, 128. (Brief not in record.)
69 Ky. 393Montague v. Reakert (1869)
APPEAL EROM OWEN CIRCUIT COURT. One pa/i'tner has no authoi'ity to hind his co-partner after dissolution and notice thereof, by a note in the firm name, even though executed for a firm debt.
69 Ky. 394Long v. Montgomery (1869)
APPEAL PROM HENRY CIRCUIT COURT. 1. Judgment without service void — Not a clerical misprision. — A judgment rendered by default, when there has been no service of process upon the defendant, is not a clerical misprision. A judgment without service or appearance is void, and may be reversed on appeal. Robinson v. Mobley, 1 Bush, 196, is reviewed and overruled so far as it conflicts with this case of Ruby v. Grace, 2 Duvall, 540. 2. Summons indorsed “executed,” with no signature to the return. Such a return is not sufficient evidence of service without any other proof. 3. The judgment recited that the “summons had beeís served in due time.” — Such a recital in the judgment is merely formal, and is not sufficient evidence of service without any other proof.
69 Ky. 397Mork v. Commonwealth (1869)
APPEAL PROM LOUISVILLE CITY COURT. 1. Selling goods by sample without license — Depective indictment por. — An indictment for this offense is defective “ in failing to cha/rge that the sale was without license.'" 2. The enactment making it a penal offense for non-residents of Kentucky to sell by sample without license within this state does not violate either the state or Federal constitution. 3. The state may constitutionally require a license for selling in particular places without reqttiring it in all places, even though revenue as well as local policy may be one of the effects and objects of the requisition. 4. The simple error in overruling the demurrer is not peí' se a ground for reversal as provided by subsection 2 of section 349 of the Criminal Code; but 5. A substantial defect in the indictment is a sufficient ground for arresting judgment, as provided in subsection 3 of section 334, Criminal Code. 6. The act of 1860, 2 Stanton, 805, is not repealed by the act' of 1865 amending the charter of the city of Louisville so as to authorize the council of said city to require for local revenue a city license for selling goods by sample for a non-resident. There is no conflict between these two enactments — one. is intended for the state, the other city revenue. The indictment in this case was under the statute of 1860.
69 Ky. 400Ulrich v. Commonwealth (1869)
Case 28 — INDICTMENT—
69 Ky. 401Macklin's Ex'r v. Crutcher (1869)
APPEAL PROM PRANKLIN CIRCUIT COURT. 1. To bind a partner by a note drawn by Ms co-partner in Ms own individual name, it must appear that such individual name was the style of the firm. 3. If the individual note of one partnfer is accepted as a merger of a partnership liability, the other partner is thereby exonerated. 3. Ferguson, of the firm of Macklia & Ferguson, purchased stock for the use of the firm, executing his individual notes therefor, signed by his own individual name. Held, that no recovery could bo had against Macklin upon the notes, although it may have been shown that the stock was applied to the use of the firm. The case of Hikes v. Crawford & Dong, 4 Bush, 19, in so far as it conflicts with the opinion in this case, is overruled.
69 Ky. 405Bush v. Williams (1869)
APPEAL PROM PULASKI CIRCUIT COURT. 1. Circuit courts have jurisdiction to enforce liens on land for DEMANDS LESS THAN PIPTY DOLLARS. In a suit in the circuit court to enforce a vendor’s lien on an interest in two tracts of land for the sum of fifty dollars, a judgment was rendered for a sale of the two tracts of land, without defining any particular part or interest as the subject of the sale. Under that judgment a sale of the two tracts entire was made and confirmed, plaintiffs being the purchasers. Before the filing of the suit to subject the land an execution in favor of another party had been levied on interests, including those covered by the lien, in the two tracts of land, and a sale thereof was made after the filing of the suit. The purchaser at the execution sale filed his petition, offering to pay the amount of the lien debt, and seeking to set aside the decretal sale on the ground that the judgment therefor was void. Held, that The execution purchaser was a pendente lite purchaser; that although the decretal sale was not absolutely void, yet on.the petition of the execution purchaser the circuit court ought to have set aside the decretal sale, and have permitted him to have discharged the vendor’s lien.
69 Ky. 408Edelen v. White (1869)
APPEAL EROM BOYLE CIRCUIT COURT. 1. Accommodation drawer and indorser — Joint-sureties.—The drawer and indorser were the joint-sureties of the acceptor of an inland bill of exchange, they having executed the same for the accommodation of the acceptor, and with the understanding and agreement that each should pay one half the bill if the acceptor failed to pay it. 2. The drawer was entitled, to recover of the indorser, his co-surety, one half of the amount of the bill which the drawer was compelled to pay in consequence of the acceptor becoming insolvent and failing to pay the bill. 3. The statement of the president of a bank, in his examination as a witness, that a certain bill was paid, or taken up at his bank with a new bill, was competent to show the fact of payment, although the witness had never seen the bill with which the payment was made.
69 Ky. 413Orphan Society v. Fayette County (1869)
Case 32 — PETITION EQUITY — CITED Revised Statutes, article 19, chapter 27. CITED Revised Statutes, sec. 1, art. 19, and sec. 2, art. 21, chap. 27. Revised Statutes, sec. 1, art. 3, chap. 06. Pr. Dec. (Sneed’s Reports, Ky.) 380, Martin v. McKinney. 18 B. Mon. 850. 3 Bush, 144.
69 Ky. 423Anderson v. Summers (1869)
Case 38 — PETITION EQUITY — CITED Revised Statutes, see. 8, chap. 40, 1 Stanton, 552. 17 B. Mon, 532-3, Chambers, &c. v. Davis, &c. CITED Civil Code, sections 153, 409. 15 B. Mon. 270, Lambert v. Ingram’s adm’r.
69 Ky. 424Beazley v. Mershon (1869)
ON MOTION TO FILE PETITION FOR A REVIEW. Bills of reviewt-Motion to file in court of appeals overruled.— The court of appeals has no authority under the Code, statutes, or common law to entertain Mils of remeto of its own decisions. When the court of appeals has passed upon a record, and then upon a petition for a rehearing, if one has been presented, and the term has adjourned, the cause is wholly beyond its reach.
69 Ky. 428Burton v. McKinney (1869)
Case 35 — PETITION EQUITY — CITED Civil Code, sec. 118. 2 Met. 230, City of Covington v. Powell. 2 Met. 311-13, Moxley’s adm’r v. Moxley. CITED 3 Met. 29. 4 Met. 100. 2 Marshall, 130. 1 Littell, 27. 3 Bush, 168. Civil Code, sec. 405.
69 Ky. 429Seaton v. Marshall (1869)
APPEAL FROM MASON CIRCUIT COURT. 1. Exemption from execution — Housekeeper with a family. — The statute exempting the property oí a debtor from sale under execution applies only to a housekeeper with a family. (Gunn v. Gudehus, 15 B. Mon. 447.) 2. The horse of a practicing physician is held to be exempt in this case. — He “was a widower with two daughters of tender age, whom he kept in the care of his mother, providing for them, and sending one of them to school from his mother’s house, while he himself occupied a single room, about one mile distant, as an office and dwelling, without servants or other family than his children, who were sometimes with him at his office, where he lodged and cooked and ate his meals.”
69 Ky. 431Commonwealth v. English (1869)
APPEAL PROM FLEMING CIRCUIT COURT. 1. An indictment for grand larceny, for stealing sheep, was indorsed on its back and described in the order of the court filing it as an indictment for “ sheep-stealing." The circuit court sustained the defendant’s motion to set aside said indictment on the sole ground “that it was not found and presented as required by the Code.” Tire commonwealth’s attorney excepted, and on this appeal the judgment of the circuit court setting aside the indictment and discharging the prisoner is reversed, with directions for further proceedings on said indictment, and a re-arrest of the defendant thereunder. 2. The order of the court describing the indictment as “for sheep-stealing ” is a sufficient identification of an “indictment for a felony committed by sheep-stealing." See opinion for reasoning showing the sufficiency of the order in this case. 8. The order of court is the only legitimate evidence that the indictment was presented to the court by the grand jury.
69 Ky. 436Glass v. Commonwealth (1869)
Case 38 — INDICTMENT— CITED Criminal Code, secs. 271, 126, 258, 259, 273. 1 Wharton, secs. 362, 402, 118, 637. 3 Greenleaf’s Evidence, secs. 229, 223-233. 2 Wharton, secs. 1701, 1704. Revised Statutes, 1 Stanton, 372, sec. 2, page 381. 1 Russell on Crimes, 879. 2 Bush, 84, Commonwealth v. Shields. 5 Bush, 199, Perrit v. Crouch and Commonwealth. 2 Bishop’s Criminal Law, 769, 680, 973, 969. . 1 Hale’s Crown Pleas, 534, 532, and note. 2 Duvall, 160, Rhodes, &c. v. Commonwealth. 4 Ohio, 540, Mathews v. State. 1 Hawkins’s P. C. 214. 3 Bush, 511, Taylor v. Commonwealth. 1 Lewis’s C. C. 301, Rex v. Hughes. CITED Roscoe’s Criminal Evidence, 891. 1 Russell on Crimes, 867. 1 Duvall, 150, Commonwealth v. Brooks. 16 B. Mon. 86, Walston v. Commonwealth. 1 Met. 9, Tipper v. Commonwealth. 17 B. Mon. 409, Comley v. Commonwealth. Criminal Code, sec. 271. 5 Bush, 362, Uriel v. Commonwealth.
69 Ky. 438Yeates v. Weeden, Adm'r (1869)
Case 39 — PETITION EQUITY — CITED 4 Dana, 475, Withers v. Bay. 2 Met. 148, Child v. Drake.
69 Ky. 440Sansberry's Ex'r v. McElroy (1869)
APPEAR FROM WASHINGTON CIRCUIT COURT. 1. Testator devised to a trustee all his estate for the use of his surviving wife for life, and died intestate as to the reversion. At the death of the testator a present vested estate in the reversion passed by descent to his children, to be enjoyed after the termination of the particular estate. 2. A posthumous child at its birth became as much entitled to a vested interest in this reversionary estate as any one of its brothers or sisters. 3. At the death, in infancy, of this posthumous child, its interest in the reversionary estate passed by descent under the statute to its mother, brothel's, and sisters. 4. The mother having sold the interest which she thus acquired in the reversionary estate, after her death her vendees are entitled to recover that interest.
69 Ky. 443Goff v. Winchester College (1869)
APPEAL FROM CLARK CIRCUIT COURT. Subscriptions before incorporation not mutually binding upon the subscribers. — ■“ The undersigned agree to pay the sums annexed to their respective names, in five equal annual installments, beginning 1st of January, 1860, and to pay the interest at six per cent, annually in advance till the principal is paid to H. €f. Poston, for the purpose of purchasing grounds in or near Winchester, and erecting thereon suitable buildings for a first-class high-school for both sexes .... Whenever a sum sufficient in the judgment of the stockholders shall be subscribed, there shall be a meeting of them called, and a permanent organization effected. Upon all questions brought before the contributors each stockholder shall be entitled to one vote for every hundred dollars subscribed.” By an act of the legislature seven persons were constituted a body corporate, under the style of the “ Winchester Collegeand as managers of said corporation they purchased real estate, and contracted debts, and sued the subscribers to said paper for contribution. Held, that as the defendants took no part in procuring the act to be passed, and have not been in any way concerned in the proceedings under it, and especially as by the terms of their agreement purchases were not to be made and liabilities created until in the judgment of the subscribers a sum had been subscribed sufficient to effectuate the objects of the association, they can not be made Moble on their subscriptions for any debts contracted by said corporators. Inasmuch as the corporation was not a party to the contract, there was no mutuality among the subscribers, and no consideration was passed. (Angelí & Ames on Corporations, sec. 255.)
69 Ky. 448Thorn v. Darlington (1869)
APPEAL PROM SHELBY CIRCUIT COURT. 1. Mortgage op homestead is invalid ip the mortgagor has a wipe WHO DOES NOT SUBSCRIBE AND ACKNOWLEDGE THE MORTGAGE. In this case the husband mortgaged a house and lot on which he and his wife and children then resided. His wife was no party to the mortgage. The house and lot were not worth one thousand dollars. The mortgagee instituted his suit in equity to foreclose the mortgage. The husband for the benefit of his family claimed an exemption of the house and lot under the homestead exemption statute of February 10, 1866. (Myers’s Supplement, 714.) The circuit judge rendered a judgment in personam against the husband for the debt, and dismissed the petition as to foreclosure and sale. That judgment is affirmed. 2. A party claiming the benefit of a homestead exemption will be presumed to be white when there is no evidence to the contrary.
69 Ky. 450St. Louis Mutual Life Ins. v. Kennedy (1869)
Case 43 — PETITION EQUITY — CITED 13 Louisiana Rep. 539, Berthoud v. Atlantic Marine Ins. Co. 9 Peters, 639, Owings v. Hull. CITED 3Parsons on Contracts, 486-7. Parsons’s Mercantile Law, 543, 381. 9 Howard, 390, Taylor v. Merchants Fire 3hs. Co. 5 Indiana, 96, Jenks v. Kentucky Mutual Ins. Co. Angelí on Insurance, secs. 343, 343, 349, 343, 37, 49, 34. 1 Phillips on Insurance, secs. 135, 33, 33, 34, 315, 514, 515. 3 Phillips on Insurance, secs. 3111, 1849, 1993. 1 Greenleaf, secs. 375, 378, 379. 1 Story’s Equity, sec. 733. Adams’s Equity, 77-91. 4 Sandford’s Ch’y Rep. 408, Carpenter v. Mutual Safety Ins. Co. 4 Cowen, 645, Perkins v. Washington Ins. Co. 33 Wendell, 18, Lightbody v. North American Ins. Co. 18 Ohio, 459, Suydam v. Columbus Ins. Co. 19 Ohio, 453, Neville v. Merchants Ins. Co. Civil Code, secs. 118, 79, 80. 1 Duvall, 93. 4 J. J. Mar. 153. 3 Peters, 305. 10 Wheaton, 199. 16 Howard, 81. 15 Indiana, 395. 3 Duvall, 113. 3 American Leading Cases, 813. 1 Smith’s Leading Cases, 999, side pages 833-4. 7 Ohio, 333. 1 J. J. Mar. 195. 5 Porter (Ind.) 103. 18 Barbour, 79. 9 Howard, 390, Taylor v. Merchants Ins. Co. 13 Mass--, Higginson v. Dale. 1 Taunton, 115, Westen v. Evans. 7 Cushing, 175, Barrett v. Mutual Life Ins. Co. 5Foster (N. H.) 193, Goodall v. New England Fire Ins, Go. 42 Maine, 259, Bragdon y. Appleton Fire Ins. Co. 1 Duer on Insurance, page 66, secs. 10, 11, 18. 3 B. Mon. 231. 19 Howard, 231. 19 Howard, 318, Commercial M. M. Ins. Co. v. Union M. Ins. Co. 5 Barr, 339, Hamilton v. Lycoming Ins. Co. 11 Paige, 547. 43 Barbour, 352. 25 Barbour, 191, Goit y. National Prot. Ins. Co. 20 Barbour, 469, N. Y. Central Ins. Co. y. National Prot. Ins. Co. 22 Conn. 572. 27 Eng. Law and Eq. 140. 6 Cushing, 342, Clark y. New England M. F. Ins. Co. 2 Kiernan, 81. 19 N. Y. (5 Smith) 305. 5 De Gex, Macnaghten, and Gordon, 255. 17 Vermont, 449. 18 Conn. 138. 3 Hill, 219. 6 Adol. & Ellis, 469. 33 Eng. Com. Law, 115. 20 Ohio, 529. 2 Dutcher’s (N. J.) Hep. 272, Hallock y. Insurance Co. 6 ‘Wendell, 103. 1 Barn, and Aid. 681. 4 Cow. 660, Perkins v. Washington Ins. Co. 6 Man. & Gra. 1, Pirn v. Reed. 1 Wash. C. C. R. 93, Kohne y. Insurance Co. 1 House of Lords’ Cases, 381, Dunlop v. Higgins. 8 C. B. 225, Duncan y. Topham. 6 Hare, 1. 1 Pickering, 278. 14 Barb. 341, Vassal- v. Camp: 3 Term Reji. 653, Cooke v. Oxley. 1 Paige, 434, Mactier y. Frith. 3 Dutcher (N. J.) 645. 1 Camp. 532. 29 Barbour, 312, Whitaker v. Farmers Union Ins. Co. 4 Kent, 460, 3d ed. 2 Kent, 477. 1 Sandf. L. O. R. 68. 10 Pickering, 332, Thayer y. Middlesex Ins. Co. 7 Dana, 282, Chiles v. Nelson. 42 Mo. 41, Keim & Co. y. Home M. F. and M. Ins. Co. of St. Louis.
69 Ky. 457Cawein v. Browinski (1869)
Case 44 — PETITION ORDINARY — CITED 2 Bush, 104, Smith & Campbell v. Jones. 17 B. Mon. 663, Piner v. Clay. CITED Smith’s Mercantile Law, pages 249, 300. Ohitty on Bills, page 512. 2 Story’s C. C. R. 502, Brown in Bankruptcy. 6 Cowen, 490, Murray v. Judah. 2 Bush, 104, Smith & Campbell v. Jones. 17 B. Mon. 663, Piner v. Clay.
69 Ky. 463Webber v. Minor (1869)
Case 45 — PETITION ORDINARY — CITED 2 Chitty’s Pleading, 264. CITED 2 Kent, 504. Sedgwick on Damages, 282. Story on Contracts, section 812. 2 Parsons on Contracts, 483, 189. Ckitty on Contracts, 871, 738, 445. 3 Met. 556, Cook v. Brandéis & Crawford. 1 East. 203, Rawson, &c. v. Johnson. 2 Bos. & Pul. 447, Waterhouse v. Skinner. Civil Code, sec. 118. 5 Monroe, 372. 1 Bibb, 379, Marshall v. Craig. 5 Mass. 67, Borden v. Borden. 4 Littell, 15, 16, Tibbs & Clark v. Timberlake. 4 Bibb, 47, Dorsey v. Cock and Barbee. 17 T. R. 127. 6 Eng. Law and Equity R. 230. 3 Bibb, 732, Shaw v. Hurd. 3 Missouri, 230, Clendenin v. Paulsel. 3 Missouri, 233, Crump v. Mead.
69 Ky. 466Barret v. Rhem (1869)
Case 46 — PETITION ORDINARY — CITED Story on Agency, sections 187, 11-15. 18 B. Mon. 400, Linn v. Burgoyne. 32 Vermont, 130. 15 Pickering, 307. 1 Hill, 501. 1 McMullen, 454.
69 Ky. 469Pendleton's & Devisees v. Pendleton's Administrator (1869)
Case 47 — PETITION EQUITY — CITED Statute of 1800, 2 M. & B.’s Digest, page 1546. 1 Marshall, 74, Agnes Iron’s ex’r v. Robert Lucky. 3 J. J. Marshall, 389, Logan v. Withers. 6 J. J. Marshall, 595, McCampbell v. Gilbert’s adm’r. 9 Dana, 348, Caleb v. Field. Revised Statutes, section 26, chapter 106. 18 B. Mon. 20, Cunningham v. Cunningham. 2 Met. 291, Broadwell v. Broadwell’s adm’r. 1 Met. 102, Coffey v. Wilkerson. 6 B. Mon. 406, Burtlo, &c. v. Thomas, &c. 5 Littell, 281, Hanley v. Earl. 7 J. J. Mar. 194, Clark v. Baker. 3 Littell. CITED Revised Statutes, secs. 26, 29, 2 Stanton, 464, 466. 18 B. Mon. 260, Hughey, &c. v. Sidwell’s heirs. 5 Littell, 274, Wells’s will. 10 B. Mon. 474, Tibbatts v. Berry, &c. 18 B. Mon. 20; Cunningham v. Cunningham. 2 Bibb, 587, Beauchamp v. Mudd. 1 Dana, 575, Simrall’s adm’r v. Graham. 4 Monroe, 422, Payne’s will. 4 B. Mon. 380, Mitchell’s adm’r v. Mitchell. Revised Statutes, 2 Stanton, 360, 361, chap. 93, secs. 3, 4. 18 B. Mon. 8, Easley’s ex’r v. Easley. 1 Duvall, 404, Dazey v. Killam, &c. 5 B. Mon. 190, Wood’s ex’rs v. Wickliffe.
69 Ky. 473Bryant v. Pottinger (1869)
Case 48 — PETITION EQUITY — APPEAL FROM LARUE CIRCUIT COURT. Infancy must be plead and restitution tendered.' — Pottinger, an infant, by next friend, brought this action against Bryant, &c., for a rescission of a contract for the sale of a horse, upon the sole ground of fraud, and obtained judgment in the circuit court. That judgment being appealed from, his counsel seek to affirm it upon the alleged ground that he was an infant at the time of the sale. JETeld, Mrst, that no case of fraud was made out by the proof. Second, the plaintiff could not avoid the contract, because of his infancy, unless he had plead and relied upon it as a ground of avoidance, and tendered to the defendant restitution of that which he had received under the contract.
69 Ky. 475Gray v. McDowell (1869)
APPEAL FROM WASHINGTON CIRCUIT COURT. 1. Devise of land with a pecuniary charge upon it. — Testator devised land to Ms wife during her life, and after her death to Ms two sons, by their paying to Ms two daughters one half of the valuation of the land at the time they got possession. Reid, that The two sons took a present vested interest in the land, subject to the life-estate and the pecuniary charge upon the land. The legacy of one half of the value of the land was a pecumary legacy to the daughters. One of the daughters having married, tMs legacy passed tó her husband; and, having survived his wife, he is entitled to receive and hold said legacy. 3..Absence from the state, and not heard from for more than twenty years. — One of the devisees left Kentucky with a family in 1841 and joined the Mormons in Missouri; since that time he has not been heard from in Kentucky. Being entitled to an interest in the land in controversy in this suit, these facts will not authorize the legal conclusion that he and his whole family of children or descendants are now extinct in 1869. 3. A DEBT BARRED BY THE STATUTE MAY BE REVIVED BY A NEW PROMISE, EXPRESS OR IMPLIED. An implied promise may be created from the fact of a positive and unqualified admission of the debt. But if the acknowledgment is accompanied by any circumstances or expressions which repel the idea of an intention or willingness to pay, no implied promise is created, and the debt is not thereby revived. . (Angelí on Limitations, page 347.) 4. Non-payment admitted — Plea of the statute of limitations sustained notwithstanding. — -The defendant in his answer admits that 11 he has not paid off said debt, but pleads and relies on the statute of limitations; that it has been' more than twenty years since ” the cause of action accrued. Reid, that the above statement in defendant’s answer “was not an express promise to pay, nor was it such an unqualified acknowledgment of the debt as to raise a promise by implication of law to pay; but it was connected with words which repel the conclusion that he had intention to pay.” . . . “The admission in the answer therefore can not have the effect to take the case out of the statute.”
69 Ky. 483Herndon v. Lancaster's Adm'rs (1869)
Cases 50, 51 — PETITIONS EQUITY — CITED 3 Bush, 384, Paul v. Paul and wife. Revised Statutes, article 3, chapter 86. 18 B. Mon. 391, Barrett v. Churchill. 1 Met. 263, Barbee’s adm’r v. Hopewell CITED 4 J. J. Mar. 367, Morrow’s heirs v. Stark’s adm’r. 9 Johnson, 450, Waters v. Travis.
69 Ky. 486Lexington City National Bank v. Guynn (1869)
Case 52 — PETITION EQUITY — CITED Brown on Actions at Law, 45 Law Library, 390. Oooley on Constitutional Limitations, '594-5. 2 Black, 545. cited 2 Johnson’s Ch’y R. 273, Yan Bergen v. Van Bergen. ' 2 Atkinson, 82. Story’s Equity, secs. 925-8. 10 B. Mon. 463, Combs v. Stewart. 1 Paige’s Oh’y, 197. 25 Georgia, 132. 14 Conn. 568, Bigelow v. Hartford Bridge Company. 2 Green’s Ch’y R. 427, Yan Winkle v. Curtis. 2 Green’s Ch’y R. 136, Attorney-General v. New Jersey R. and T. Co. 6 Paige, 435, Smith v. Adams. 24 Barbour, 44, Smiles v. Hastings. 22 N. Y. 217. 18 N. Y. (4 Smith) 48. 26 Penn. (2 Casey) 438, Huttemeier v. Albro. 21 N. Y. (7 Smith) 505, Lampman v. Wilks. 37 Penn. 503, Rhen v. Forsythe. Revised Statutes, sec. 29, chap. 24; sec. 4, art. 21, chap. 27. Civil Code, secs. 123, 30. Revised Statutes, sec. 5, chap. 35. 14 B. Mon. 248. 15 B. Mon. 589.
69 Ky. 491Rutledge v. Farrar (1869)
APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. 1. An assistant constable, appointed under the provisions of the acts of 1854 and 1868, for Woods’s district in Jefferson County, might act as a constable in the city of Louisville in said county. 2. The constable of the third district in the city of Louisville was not entitled to the said office for Woods’s district in Jefferson County, and consequently was not authorized to proceed against the assistant constable of Woods’s district, to prevent him from usurping the office of constable in said district.
69 Ky. 493Haupt v. Pittaluga (1869)
Case 54 — FORCIBLE ENTRY — CITED 8 Marshall, 347, Chiles v. Stephens. CITED Civil Code, section 500.
69 Ky. 495Norman v. Norman (1869)
Case 55 — PETITION EQUITY —
69 Ky. 498Campbell v. Clay (1869)
APPEAL PROM NICHOLAS CIRCUIT COURT. 1. Void sale op inpant’s real estate under chapter 86, Revised Statutes — Because the commissioner’s report was not such as THE STATUTE REQUIRED, TO GIVE THE COURT JURISDICTION, THIS JUDGMENT AND SALE ARE VOID. The petition sought the sale of a tract of two hundred and twenty-five and a half acres of land, as an undivided tract. It appeared by an exhibit filed, certified by the clerk of the county court, that the widow’s dower (fifty-four and a half acres) in this tract of land had been allotted to her, and that the residue, one hundred and seventy-one acres, had been divided into three parcels of unequal quantities, and assigned to the three infants respectively; that the interests of the infants in the one hundred and seventy-one acres had been thus severed and restricted to particular boundaries; and that the net value and annual profits of these several lots may have differed. The commissioners disregarded the division of the land, and reported the aggregate net value and annual profits arising from the one hundred and seventy-one acres, and wholly failed to report the net value of the infants’ estate in the fifty-four and a half acres, subject to the dower. The circuit court rendered a judgment for a sale of the joint interests in the entire tract of two hundred and twenty-five and a half acres of land. Reid, that “If it was not fatally irregular to adjudge a joint sale of the several interests of the parties, said report was not such as the statute required to gire the court jurisdiction, and the judgment and sale arre raid?' 2. The report of the commissioners, that they had no “ hesitancy in saying it would he greatl/y to the intei'est of the infants aforesaid to decree a sale of the landf did not strictly respond to the question whether the interest of the infants required the sale to made.
69 Ky. 501Hawthorn v. Root (1869)
APPEAL PROM KENTON CIRCUIT COURT. 1. Where the legal title to real estate has been invested in a party, to hold and convey the same as a trustee to other parties for certain purposes, and the intention of the parties can not be carried out because the legal title by an oversight was conveyed to an infant, a court of equity will set aside such a conveyance even against the wish of such infant. 2. Mi's. H. held title to real estate under her father’s will, with power to devise or convey the same to any of his lineal descendants. In order to raise funds to erect or provide residences for each of her three married daughters, she conveyed valuable real estate to one of the daughters, to be by her conveyed to certain parties who proposed to purchase the same. The sale and conveyance was made by the daughter. This daughter and her husband refused to carry out the intention of the parties. Mrs. H. and her husband instituted suit to set aside all the conveyances. On the ground that the daughter was an infant and could not convey, the sale and conveyance by her is set aside; and on the ground of the refusal of the daughter and her husband to carry out the purposes of the conveyance to her, that conveyance is also set aside, and all the parties placed in statu quo.
69 Ky. 507Wood v. Morgan (1869)
Case 58 — PETITION ORDINARY — CITED Civil Code, sec. 409. 15 B. Mon. 638. 14 B. Mon. 393. 18 B. Mon. 316. 1 Metcalfe, 558. 3 Metcalfe, 196. 4 Metcalfe, 383.
69 Ky. 508Guy v. Butler (1869)
APPEAL PROM ADAIR CIRCUIT COURT. 1. A vendor of land took three notes from his vendee, and gave him a bond for conveyance. The vendor transferred two of the purchase-notes to one party and the third note to another party, and then made a deed of conveyance to his vendee, reserving a lien to secure the two purchase-notes, and pretermitting the third note. The holder of the two notes instituted suit against the purchaser to enforce his lien, and subject the land to the payment thereof. The holder of the third note asked to be made a party, and filed an answer and cross-petition, alleging that the third note was secured by an equitable lien on the land, and that the parties to the conveyance had notice of her equity, and fraudulently designed by the conveyance to deprive her of it. The circuit court sustained a demurrer to that answer and cross-petition, and adjudged a sale of the land for paying the two notes alone. That ¡judgment is reversed. 2. The vendor of the land parted with his title to the land, and transferred the purchase-notes to third parties. In a suit by the assignee of the purchase-notes to enforce his lien the vendor was not a necessary party.
69 Ky. 510Heeter v. Jewell (1869)
Case 60 — PETITION ORDINARY — CITED 4 Bibb, 353, Edwards’s ex’rs v. Taylor, &e. 7 B. Mon. 21, Smith, &c. v. Bland. 7 Dana, 11, Clay & Craig v. Hart. Civil Code, secs. 465 to 469. Revised Statutes, secs. 17,18, 1 Stanton, 500. Revised Statutes, sec. 3, 2 Stanton, 339. CITED Civil Code, section 466.
69 Ky. 514Pauer v. Simon (1869)
Case 61 — PETITION ORDINARY —
69 Ky. 515Lishy v. Perry (1869)
Case 62 — PETITION EQUITY — CITED 2 Met. 230, City of Covington v. Powell. Homestead Act, Myers’s Supplement,’ 714. 4 Bush 40, Alfriend v. Hughes.
69 Ky. 518Brown v. Piner (1869)
APPEAL PROM OHIO CIRCUIT COURT. 1. “He sheared two of Zack Austin’s sheep, meaning to charge that plaintiff had stolen the wool from two of Zack Austin’s sheep.” “Jesse Piner sheared Zack Austin’s sheep and kept the wool, thereby meaning to charge plaintiff with the crime of larceny; all of which was slanderous.” Neither of the above charges imports per se a criminal act. 2. The innuendo can not change or enlarge the legal effect of the utterances as alone properly interpreted and understood. 3. The words themselves not necessarily importing actionable slander, the circuit court erred in instructing the jury to find for the plaintiff if they believed that the charge as recited in the petition had been proved.
69 Ky. 519Foster v. Shreve (1869)
Case 64 — PETITION EQUITY — CITED 15 Vernon, 519, Wheelock v. Molton. Riche’s Chancery, 243, Dawson y. Dawson. Act of 1796, M. & B.’s Digest, 4,43. Revised Statutes, sec. 7, chap. 80. 14 B. Mon. 560, Thurman v. White. 15 B. Mon. 282, Stevenson v. Haggan. 14 B. Mon. 167, Rogers v. Payne. 2B. Mon. 404, Webb & Harris v. Holmes. 16 B. Mon. 309, Carr v. Bstill. 4 Kent (11th edition), top page 249. 1 Met. 331, Johnson v. Johnson. 2 Duvall, 547, True v. Nichols. Powell on Devisees, 500. 16B. Mon. 280, Spurrier v. Parker. 4 Littell, 168, Bank of Kentucky v. Vance’s adm’r. 7 B. Mon. 257, Kemper v. Hughes. 4 Bibb, 436, Massie v. Sebastian. 9B. Mon. 561, Eitzhugh v. Tyler. 10 B. Mon. 204, -Upshaw v. McBride. 11 B. Mon. 115, Bailey v. Bamberger. 1 Dana, 46, Deason, &c. v. Boyd. 4 Met. 852, Phillips v. Clark. Story’s Equity, top page 57, sec. 64. 7 B. Mon. 574. 14 B. Mon. 251, Shortridge v. Bartlett. 10 B. Mon. 163, Phillips v. Pope. 10 B. Mon. 58, Prescott v. Prescott’s heirs. 11 East. 668, Doe v. Golf. 4 Bibb, 390, McNair v. Hawkins. 1 Bibb, 114, Horine v. Craig. 1 Mon. 48, Steele v. Lewis. 3 Mon. 265, Berry v. Berry. 4 Mon. 385, Russell v. Craddock. 4 Mon. 252, Barclay v. Hendricks. 6 Mon. 43, Rice v. Spotswood. 5 Mon. 189, Jackson v. Murray. CITED 3 B. Mon. 406, Webb & Harris v. Holmes. 1 Story’s Equity, sec. 383. S Dana, 292, Turner v. Patterson. 3 Bibb, 209, Coleman v. Hutchinson. 3 Marshall, 334, Miller y. Long. 3 J. J. Marshall, 538, Gale y. Conn. 5 J. J. Marshall, 424, Ogden y. Yoder. 16 B. Mon. 283, Spurrier v. Parker. 8 B. Mon. 502, Davis v. Tingle. 1 J. J. Marshall, 283, Head v. Ward. 14 B. Mon. 560, Turner v. White. 15 B. Mon. 282. 7 B. Mon. 257, Kemper v. Hughes. 4 Bibb, 436, Massie v. Sebastian. 9 B. Mon. 561, Eitzhugh v. Tyler. 10 B. Mon. 204, Upshaw v. McBride. 11 B. Mon. 115, Bailey v. Bamberger. 1 Dana, 45, Deason v. Boyd. 3 Maulé & Selwyn’s Bep. 308, Stone v. Gordon. 8 B. Mon. 502,' Davis v. Tingle. 7 Penn. 329. 16 Penn. 361. 7 Gill (Maryland Bep.) 354. 4 Littell, 320, Johnson v. Gwathmey.
69 Ky. 532Murphy v. Estes (1869)
Case 65 — PETITION ORDINARY — APPEAL FROM HANCOCK CIRCUIR COURT. 1. Essential amerments in the body of the petition can not be supplied by merely referring to another paper, though it be the foundation of the action. (Hill for use of Wintersmith v. Barret, 14 B. Mon. 83.) 2. Defects in the petition, not cured by statements in a paper filed WITH AND AS PART OF THE PETITION. . The plaintiff alleged as cause of action that the defendant extm'ted and obtained three hundred and eight dollars and forty-five cents from him without any consideration, and was therefore indebted to him in said sum; and filed with and as part of his petition a written statement, in substance setting forth that he had paid the money under the mistaken belief, induced by the defendant’s attorney, that he was liable therefor for failing to return an execution as sherifl. Held, that the petition stated a legal conclusion merely, and that the essential facts’could not be supplied by the paper filed and referred to as part of the petition. Denvw'rer to the petition ought to home been sustained. CITED 1 Story’s Equity, sections 110 to 139. 12 Peters, 32, United States v. Daniel. 3 Bouvier’s Institutes, page 612. 10 Peters, 137, Elliot v. Swartout. 6 Yerg. 483, Dickens v. Jones. 8 New Hampshire, 149, Bean v. Jones. CITED 3 B. Mon. 514, Ray, <&c. v. Bank of Kentucky. 4 Dana, 309, Underwood v. Brockman. 1 Metcalfe, 153, City'of Louisville v. Zanone. 2 Metcalfe, 228, City of Covington v. Powell. Chitty on Contracts, 10th American edition, 696.
69 Ky. 534Johnson v. Gunter (1869)
Case 66 — ON RULE IN EQUITY ACTION —
69 Ky. 537McAfee v. Balden (1869)
Case 67 — PETITION EQUITY — cited Rev. Stat. secs. 1-4, art. 22, chap. 27, 1 Stanton, 328-9. Civil Code, section 161. 15 B. Mon. 377, Rogers v. Rogers. CITED Civil Code, sec. 118, subsec. 3, and secs. 393, 400, 23. Revised Statutes, sec. 2, subsec. 10,i art. 22, chap. 27. 1 Metcalfe, 492-502, 520, 521. 16 B. Mon. 686, Bentley v. Bustard. 1 Duvall, 60, 61, Gregory v. McFarland. 2 Bibb, 35, Hogan v. Vance.
69 Ky. 541Thatcher v. Cannon (1869)
Case 68 — PETITION EQUITY — CITED Story’s Equity Jurisprudence, secs 1257-60, 503. Cross on Liens, side pages 189, 190. Hill on Trustees, side page 92 and note. 22 Penn. 16, Thompson’s Appeal. CITED 2 Johnson, 732, Ray v. Bright. 15 B. Mon. 327, Sweeney v. Smith. 16 B. Mon. 376, Lillard v. Turner. 16 B. Mon. 487, Burch and wife v. Breckinridge. Story’s Equity, secs. 92, 503. Revised Statutes, secs. 10, 11, 16, chap. 23. 8 B. Mon. 416, Taylor v. Taylor. Adams’s Equity, side page 268. 3 Met. 261, Samuel v. Salter. 1 Met. 300, Carson v. Carson. Revised Statutes, sec. 1, art. 2, chap. 86; sec. 18, chap. 106.
69 Ky. 544Trimble v. Vaughn (1869)
APPEAL PROM WOLPE CIRCUIT COURT. 1. Suspension op statute op limitations in Wolpe and other speciphsd counties. — The act of February 30, 1864 (Myers’s Supplement, 393), providing that “no statute of limitation shall run against any cause of action therein from, the first of Map, 1861, until the courts shall be again opened to the citizens thereof," is constitutional. The courts in these counties were not re-opened, until the fall of 1865, and this suit was brought in April, 1868; consequently an elision of the time from the accrual of the action in 1863 to the re-opening of the courts leaves less than five years. 3. The act of February 30,1864, aforesaid was not constructively repealed by the act of February 17,1866 (Myers’s Supplement, 734), providing for a suspension of limitation from the 1st of April, 1861, to the restoration of the habeas corpus in Kentucky, and one year thereafter. There is no incompatibility between the two acts aforesaid; the latter applied to the whole state, the former applied only to certain specified counties.
69 Ky. 547Lynch v. Reynolds (1869)
APPEAL PROM ESTILL CIRCUIT COURT. 1. Bill op exceptions piled nunc pro tuna not good. — “ It being --within the personal knowledge of the court that the bill of exceptions in this case was approved and signed by the judge of the court at the last Api'il tei'm, and ordered to be madé' a part of the record; and it appearing by some omission the order to make it a part of the record was not entered up; it is now for then ordered that said bill of exceptions be made a part of the record of said case, and treated as such.” Omissions and failures to enter orders or judgments can not be supplied by orders made, at a subsequent term, on the memory of the judge. Bill of exceptions filed by above order is disregarded by court of appeals. 2. A Trill of exceptions filed at a subsequent term, when no order of court appears in the record extending the time for filing the same to said term, can not be regarded by the court of appeals. (Vandever v. Griffith, 2 Met. 425.)
69 Ky. 550McGuire v. Bowman (1869)
Case 71 — PETITION EQUITY — CITED Civil Code, section 40. 2 Duer, 663, Davis v. Mayor of New York. 29 Barb. 25, Shaver v. Brainard. 15 B. Mon. 47, Mays. & Lex. Railroad Co. v. Punnett, &c. 4 Met. 236, Applegate v. Applegate. 4 Met. 30, Bondurant v. Apperson.
69 Ky. 553Ormsby v. Terry (1869)
APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Sale op trust estates por re-investment. — la the year 1847 William Prather, &c., conveyed to Helen Terry, the wife of William Terry, certain real estate in the city of Louisville, “ for the separate use and benefit of the said Helen, and the children now living of the said William and Helen Terry, and of any other children that may hereafter be born of said wedlock.” Held, that such an estate, by proper proceedings, may be sold by the chancellor for the purpose of reinvestment on the same trusts and limitations, binding the living as well as the unborn grantees. 2. The purchaser at the decretal sale refused to execute bonds for the consideration bid by him. Being ruled to do so, he responded, objecting to the title as well as to the jurisdiction of the court to order the sale. The chancellor, considering his response insufficient, required him to execute his bonds. On the purchaser’s appeal, that judgment is reversed, with directions to the court below to allow reasonable time for supplying an apparent defect in the title.
69 Ky. 556Preston v. Henning (1869)
Case 78 — PETITION ORDINARY — CITED 2 Kent, side page 621 and notes. 1Am. Leading Cases (H. & W.) Batty v. Carswell. 6 Mon. 82, Morrison v. Taylor. 5 J. J. Mar. 267, Mitchell y. Sproule. 6 Monroe, 577, DeHart y. Wilson. 4 J. J. Mar. 87, Campbell y. Gill. 3 Monroe, 347, Postlewait y. Garrett. 1B. Mon. 825, Kenningham y. Bedford. 1 B. Mon. 324, Tudor v. Goodloe. 2 Am. Leading Cases, 172 and notes. 3 B. Mon. 262, Pyle y. Clarke. 6 B. Mon. 285, Scott y. Hull. , 7 B. Monroe, 217. 26 Illinois, 282, Warner v. Campbell. 10 Paige, 77, Vilas v. Jones. 7 Paige, 451, Miller y. McCann. 27 Illinois, 323, Mynn y. Mudd. 2 Bush, 188, Robinson y. Miller. - 14 Ohio, 351, McComb y. Kittridge. 11 Pickering, 150, Robertson v. Gardner. 6 Monroe, 618, Lamptony. Lampton. 4 Met. 280, Dougherty y. Smith. _ 3 Met. 24.6, Finnell v. Cox. CITED 3 J. J. Mar. 525, Sneed’s ex’rs y. White. 2 Bush, 188, Robinson v. Miller: 1 B. Mon. 322, Tudor y. Goodlóe.
69 Ky. 563O'Brian v. Commonwealth (1869)
APPEAL PROM HICKMAN CIRCUIT COURT. 1. The DISCHARGE OP A JUROR AGAINST THE OBJECTION OP THE PRISONER, AFTER THE JURY WAS SWORN, OPERATED AS A DISCHARGE OP THE' ENTIRE JURY, BUT IT DID NOT OPERATE AS AN ACQUITTAL, OR BAR ANOTHER TRIAL. After the jury was sworn iu this case, and during the examination of the first witness by the commonwealth, one of the jurors announced to the court that he recollected ‘■‘■that he was a member of the grand jury that found the indictment against the prisoner." Thereupon, against the objection of the prisoner, the court sua sponte ordered that juror to be discharged. Retaining the other eleven members of the jiu-y, the court, against the objections of the prisoner, ordered other persons to be summoned, and from them selected a juror in place of the one discharged, and proceeded with the trial; to all which the prisoner objected and excepted. The prisoner was convicted of murder, and sentenced by the court. On the prisoner's appeal, that judgment is reversed and a nem trial ordered. Held, First, that the court, of its own will, had no power to discharge the juror against the objection of the prisoner. Second, that the discharge of the juror operated as a discharge of the entire jury. Tim'd, blit the discharge of that juror did not operate as an acquittal, or a bar to the further prosecution of the case. Fourth, that the court ought to have discharged the entire jury, caused a new one to be summoned, and proceeded with the trial. 2. “Nor shall any person be subject for the same oifense to be twice put in jeopardy of life or limb.” The meaning of the above constitutional provision is, that no person shall be twice tried for the same offense; and The true test by which to decide the point whether a person has been tried or not is by the plea of cmbrefow acquit or aut/refois convict. A defendant is not put in jeopardy until a verdict has been rendered for or against him; and when for or against him, he can never be called in question again for the same oifense. 3. The discharge of a jury before verdict is no bar to the prosecution. 4. Testimony of deceased witness on a former trial between the same parties — When and how admissible. — Where a witness is dead, Ms evidence judicially taken in one proceeding may be used in another between the same parties, the party against whom the evidence is offered having had an opportunity to cross-examine in the former proceeding. 5. Where there are two trials, if a witness has died between the first and second trials, it may on the second be proved what he swore to on the first. This doctrine prevails in criminal as well as civil causes. 6. On the trial of the accused in the circuit court it was competent to prove the statements on the examimng trial of a witness who had since died.
69 Ky. 572Adams Express Co. v. Cressap (1869)
Case 75 — PETITION ORDINARY — CITED 3 Dana, 205. 4 Dana, 218. 5 Dana, 174. Story on Bailments, secs. 545 a, 545 b, 543, 450.
69 Ky. 574Louisville & Nashville R. R. v. Filbern's Adm'x (1869)
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. An engineer in charge of an express-train was instantly killed by his engine being thrown off the track, in the night, by a dead and decayed tree, which, standing on the road-bed, fell across the track. The engineer’s administratrix sued the railroad company for punitive damages, under the act of March 10, 1854 (2 Stanton, 510), and recovered a judgment for ten thousand dollars damages. On the appeal of the railroad company that judgment is reversed for errors committed by the circuit judge in instructing the jury, and a new trial is ordered. 2. Contributory negligence — Employees in same service. — The implied undertaking of employees in the same service to risk the contingencies which the ordinary skill and care of each other in his line of service could not avert, does not exonerate the company from liability for damages resulting to one of such co-agents from the extraordinary or gross negligence of another of them. 3. It was insisted for the railroad company that “the circuit court should have instructed the jury that if there was a neglect of duty on the part of Filbem (the engineer who was killed), as well as the section-boss, in failing to cause the removal of the tree, the plaintiff (Filbern’s executrix) could not recover.” Held, that “this was not the law if the section-boss, or some other agent of the company than Filbem, was alone guilty of willful negligence, causing the death of the latter, although in his own sphere he may have been guilty of some neglect of duty.” (Louisville & Nashville Railroad Company v. Robinson, 4 Bush, 507.) 4. Willful negligence in this case did not depend “on the knowledge or belief of the road-master or section-boss as to whether the tree was decayed, and subject to fall or be blown down across the trade, and his failure, though so apprised, to remove it.” These were facts from which the jury might have inferred willful neglect, but they did not necessarily constitute it. 5. Whether or not willful neglect is the same as gross neglect, or in any case more or less culpable, it must involve either an “intentional wrong, or such a reckless disregard of society and right as to imply bad faith.”
69 Ky. 581McAlister's Ex'r v. Commonwealth (1869)
Case 77 — MOTION AGAINST DELINQUENT TAX-PAYER — CITED Revised Statutes, 2 Stanton, 249, 252, 253, 256-7. Myers’s Supplement (Acts of 1862), page 5. CITED Act of February 28, 1862, Myers’s Supplement, 3-15. Act of December 19, 1865, Myers’s Supplement, 86-7. Act of January 13, 1866, Myers’s Supplement, 687. Civil Code, sections 130, 147. 1Bush, 259, Lou. & Nash. R. R. Có. v. Commonwealth. Rev. Stat., chap. 83, 2 Stanton, 256; chap. 101, pp. 470-73. Rev. Stat., chap. 28, 1 Stanton, 406-7. Constitution United States, art. 1. Proclamation of President Johnson, July 4,1868. 1 Met. 413-14, Stokes v. Kilpatrick. 2 Met, 496, Patterson v. Miller. 1 Mon. 86. 14 B. Mon. 29-30. 3 Littell, 459. I Cranch, 170-171. 4 B. Mon. 234. 5 Howard, 476. 2 Blackstone, 37, 59. II Howard, 367. 1 Blackstone, 28-9. 5 Duer, 697. 6 Howard, 352.
69 Ky. 585Adams v. Jett's Adm'r (1869)
APPEAL PROM MADISON CIRCUIT COURT. A matrried woman has a right to home a judgment against her opened and a new trial “ where the condition, of such defendant does not appear in the record nor the error in the proceedings.” (Civil Code, sub-sec. 5 of sec. 579.)
69 Ky. 587Barkley v. Lane's (1869)
APPEAL EROM BATH CIRCUIT COURT. 1. A trust estate in personal property may be created in parol, and proved by parol evidence. (Hill on Trustees, 55; Lewin on Trusts and Trustees, 56.) 3. It is not essential to the validity of the trust that a trustee be formally appointed, as the owner of property may convert himself into a trustee, and hold it for the benefit of another without transmuting the possession. (Tiffany and Bullard’s Law of Trusts and Trustees, 354) 3. But to fasten a trust on property by mere parol declaration the language used must be clear and explicit, manifesting the owner’s purpose to transfer the right, and pointing out with certainty both the subject of the trust and the person who is to take the beneficial interest. 4 The donor of promissory notes, without a delivery, to two of his children, in this case, is held to have constituted himself a trustee for then- benefit; and after the death of such trustee the beneficiary cMldren recover the notes.
69 Ky. 590Lilly v. Curry's (1869)
APPEAL PROM HARRISON CIRCUIT COURT. 1. Specific bequest to one not testator’s heir, in Kentucky, is ADEEMED BY ALIENATION BEFORE TESTATOR’S DEATH.-CuiTy J>ublished Ms will in. 1859 in Missouri, and soon thereafter died. Curry had left a horse in Kentucky with Lilly, with authority to sell it. Testator willed this horse to Cogswell, a citizen of Missouri. Lilly sold the horse before the death of Curry for two hundred dollars. After Curry’s death Anderson, a creditor of Cogswell, attached and recovered judgment agarnst Lilly for the price of the horse. In this attachment suit against Lilly he did not cause the executor of Curry to be made a party, and interplead with Anderson. Not being concluded by Anderson’s judgment against Lilly, the executor of Curry sued and recovered judgment against Lilly for the amount received by Mm for said horse. That judgment is affirmed. 2. A specific legacy is the bequest of a particular thing, specified and distinguished from all others of the same kind. 3. If a specific legacy is alienated by the testator before his death, the law presumes an intention to adeem it, and it will be considered as adeemed unless there be circumstances to repel this legal presumption. (6 Pickering, 48; 14 Johnson, 324.) But 4. In Kentucky the common law bule that alienation adeems a speCIEIC BEQUEST DOES NOT APPLY TO BEQUESTS TO TESTATOR’S HEIRS, UNLESS THE TESTATOR SO INTENDS. “The conversion in whole or in part of money or property, or the proceeds of property devised to one of the testator’s heirs, into other property or thing, with or without the assent of the testator, shall not be an ademption of the legacy or devise, unless the testator só intended it; but the devisee shall have and receive the value of such devise unless a contrary intention on the part of the testator appear from the will, or by parol or other evidence.” (Sec. 1, art. 3, chap. 46, Revised Statutes, 2 Stanton, 2, 3.)
69 Ky. 594Berry v. Berry's Ex'r. (1869)
APPEAL FROM BATH CIRCUIT COURT. 1. In an action on a lost note the defendant in equity might properly demand an. indemnifying bond against the after-assertion of the note; and 2. In an action on a note in possession of an adverse claimant, who is a nonresident, the defendant in equity might properly demand an indemnifying bond against the after-assertion of the note, before being coercively compelled to pay the money. In this case the judgment of the circuit court is reversed because such an indemnifying bond was not executed. 3. Any personal judgment against a non-resident on service of process by copies, as authorized by the Oivil Code, sections 86 and 87, without appearance, is prohibited by section 450 of the Civil Code.
69 Ky. 596Horton v. Banner (1869)
Case 83 — PETITION ORDINARY — APPEAL FROM MORGAN CIRCUIT COURT. 1, Slander, in actions por, dependant may set up defenses of not guilty and of justification. — In this action, for accusing the plaintiff oí the crime of perjury, the defendant set up the defenses of not guilty and of justification. The circuit court by rule compelled defendant to elect on which defense he would stand. That judgment is reversed. 3.
69 Ky. 600Rivers v. Moss's Assignee (1869)
APPEAL FROM BALLARD CIRCUIT COURT. 1. Confederate currency was not a vicious consideration. 2. On a note executed within the Confederate States during the late war, for Confederate currency, the payee is liable for the gold value of the consideration of the note when payable. (Thorington v. Smith, 8 Wallace, 1.) The value of such consideration, when payable, may be put in issue and determined.
69 Ky. 602Bradley v. Mason (1869)
APPEAL FROM M’CRACKEN CIRCUIT COURT. 1. “$500. Paducah, Ky., October 8, 1867. “Ninety days after date.....pay to the order of W. H. Mason five hundred dollars, value received, and charge to account of.....Payable at the First National Bank at Paducah, Kentucky. D. J. Mason.” On the above are the following indorsements: “Pay Jo. James — ■ W. H. Mason; pay B. O. Bradley — Jo. James.” B. C. Bradley brought suit against D. J. Mason on the above, styling it a note instead of a MU of exchange. The petition contained all the necessary averments of non-payment, etc. The circuit court sustained a demurrer to the plaintiff’s petition. That judgment is reversed. Held, That the above writing imports a promise by D. J. Mason, the maker, to pay to the order of W. H. Mason, the payee, five hundred dollars. The petition shows a good cause of action. 2. When a writing is capable of being interpreted either as a bill of exchange or a promissory note, the person who receives it may, at his option, treat it as a bill of exchange or as a note against the maker. (Story on Promissory Notes, sec. 16.) 3. As we have but one form of action — that by petition — if the writing sued on be set out, and it imports a covenant to pay, a mere misnomer of the wilting would not be a cause for a general demurrer.
69 Ky. 606Dills v. Hatcher (1869)
Case 85 — PETITION ORDINARY — CITED 13 Howard, 115, Mitchell v. Harmony. 3 Bush, 453, Terrill v. Rankin, &c. 3 Bush, 303, Lewis v. McGuire. 1 Bush, 39, Jones v. Commonwealth. 1 Bush, 69, Farmer v. Lewis, &c. Civil Code, sec. 670. 3 Bush, 346, Corbon & Bettis v. Stout.
69 Ky. 608Owens v. Roberts (1869)
APPEAL PROM H’CRACKEN COMMON PLEAS COURT. 1. Lease oe a ferry not void because not made “at public outcry,” as required by law. — Tlie trustees of the town, of Paducah, by act of the legislature of 1838, were authorized to lease the ferry opposite that place, across the Ohio River, “at public outcry.” In 1858 the authorities of the city of Paducah leased said ferry by primte contract. Held, that While the lease of the ferry might be voidable as between lessors and lessee, yet it was not void, and its validity could not he denied or questioned by a stranger, who attempted to run an unlicensed opposition ferry within one mile thereof. 2. Running an unlicensed ferry within one mile of a ferry established by law is an actionable wrong against the proprietor of such lawful ferry.
69 Ky. 610Fleming v. Wilson (1869)
Case 87 — PETITION EQUITY — CITED 1 B. Mon. 350, Phillips’s adm’r v. Bustard. Civil Code, section 98. 5 Monroe, 66, Wood and wife v. Lee. 2 B. Mon. 261, Mountjoy and wife v. Lashbrook. CITED 5 Dana, 77, Moore’s ex’r v. Beauchamp. 21 Curtis, 291, Barney v. Saunders. 16 Howard, 542. 2 B. Mon. 261, Mountjoy and wife v. Lashbrook. 7 B. Mon. 176, Clemons v. Caldwell. 2 Dana, 252, Hughes v. Smith. 3 Mon. 123, Campbell y. Williams. 1 Johnson’s Ch’y, 624, SeMef£elm v. Stewart. 11 Vesey, 92, Raphael v. Bochen. 5 Dana, 44, Beeler, &c. v. HilFs ex’r. 6 Monroe, 167-8, Webb, &c. v. Webb, &c. 7 Dana, 17, Clay v. Clay. 1 Met. 334, Cabell, &c. v. Cabell, adm’r, &c. 12 B. Mon. 190, Greening, &c. v. Eox, &c. 5 Dana, 133. 6 B. Mon. 357-8. 3 Dana, 376, White’s ex’r y. White’s adm’r. 5 Dana, 134, Jennings’s ex’r v. Davis & Wheeler.
69 Ky. 614Union National Bank v. Marr's Administrator (1869)
Case 88 — PETITION ORDINARY — CITED 2 Duvall, 380-83, Berry v. Southern Bank of Kentucky. 3 Bush, 398, Leathers v. Commercial Insurance Co. ■Wheaton (Lawrence’s) pages 544, 556, 636, 533. 8 Oranch, 155, The Rapid. 1 Kent. 55. Story on Bills, sections 308, 365. Constitution of the United States, sec. 8, art. 1. Story on Constitution, sec. 1177 eb seg. United States Statutes at Large, Act of July 13, 1861. CITED Story on Bills, secs. 037, 338-330, 384, 397, 398, note 3, 383-884. Chitty on Bills, 9th edition, pages 335, 339, 330, 336, 454. 3 Metcalfe, 381, Landrum v. Trowbridge. 3 Marshall, 616. 7 Monroe, 583. 3 Brock, 30. 4 Metcalfe, 391. 3 Black, 666 (Prize Cases.) Act of Congress of July 13,-1861. Act of Congress of February 38, 1795. Act of Congress of March 3, 1807. Proclamation of President Lincoln, August 16, 1861. 3 Duvall, 111, Graves v. Tilford. 3 Duvall, 380, Berry v. Southern Bank of Kentucky. 13 Wheaton, 19-30, Martin v. Mott. Story on Contsitution U. S., secs. 1-310, 1311, pp. 110-113. 3 Bush, 396, Leathers v. Commercial Insurance Co.
69 Ky. 617Child, Pratt & Co. v. Burton (1869)
APPEAL PROM HICKMAN CIRCUIT COURT. 1. Certain slaves were conveyed to Burton for the separate use of Ms wife, with power of sale to her with his consent. They exchanged the slaves for a tract of land, the husband executing his note as trustee for the difference in price, and taking the vendor’s bond for a conveyance to himself as trustee for Ms wife. They exchanged the land for a tavern-house and lot, and assigned the bond to the party with whom they exchanged, but did not advise him of the note, which was secured by a lien on the land. Held, that the holder of the note might subject the tavern property as well as the land to the payment of his debt. . . 2. A vendee, after conveying the land and receiving the full consideration therefor, could not, in an action for the balance of the purchase price, plead as a defense a deficiency in the land. 3. A purchaser of property pendente lite is not entitled to be made a party to the litigation pending, to subject such property to the payment of debts.
69 Ky. 620Ely v. Harvey, Keith & Co. (1869)
Case 90 — PETITION EQUITY —
69 Ky. 622Glass v. Abbott (1869)
Case 91 — PETITION EQUITY — CITED Revised Statutes, chapter on Wills, 3 Stanton, 463. 5 Bush, 305, Gere, &c. v. Cushing, &c. 5 Monroe, 369. 8 B. Mon. 566, Rucker, c%c. v. Abell, &c. 4 Dana, 6, Hawkins v. Beall. 16 B. Mon. 430, Thomas v. Thomas’s ex’r. 1 Metcalfe, 353, Enders v. Williams. 3 B. Mon. 345, Love v. Lewis. CITED 5 B. Mon. 269-70, Clary’s heirs y. Marshall’s heirs. 3 Metcalfe, 437, Bussell’s ex’r v. Moore’s heirs. 4 Bush, 608, Goins v. Allen, Morton & Co. 8 B. Mon. 568, Rucker, &c. v. Abell, &c. 2 Duvall, 186, Montjoy v. Maginnis, &c.
69 Ky. 624Salter v. Salter's Creditors (1869)
APPEALS PROM PAYETTE CIRCUIT COURT. 1. Proceedings by committee op a person op unsound mind to subject his estate to the payment op ms debts, etc. — Under article 1, chapter 48, Revised Statutes, circuit courts have ample power to entertain the suit ¿of a committee of a person of unsound mind for the sale of his estate which is indispensably necessary to pay his debts. 3. The restitution of a person adjudged to.be of unsound mind to the control of his estate by a second inquest, in which his restoration was adjudged, did not divest the circuit court, in this case, of jurisdiction of the proceedings instituted by the committee appointed under the first inquest to sell estate to pay debts. ■3. Having rightfully acquired jurisdiction, and being competent to afford the relief sought, the chancellor was- not divested of authority to do so because the reason for taking jurisdiction did not continue to exist. (1 Story’s Equity, section 456; Crawford v. Summers, 3 J. J. Mar. 300.) 4. The committee of a person of unsound mind in good faith enjoined the collection of an execution which had been levied on the estate of such person. The injunction was dissolved, and the sureties of the committee in the injunction bond were compelled to pay the debt. Such sureties were entitled to be subrogated to the committee’s right of priority in the distribution of the estate. 5. The levy of the execution having created an encumbrance on the estate of the person of unsound mind, his committee had a right to pay the debt and look to the estate for reimbursement. The committee did not lose his right of indemnity by enjoining the debt, under the advice of counsel, in order to litigate it in behalf of the estate. The court properly protected the committee and his sureties by ordering' the payment of said debt out of the estate. 6. Change oe venue by agreement oe the parties. — The agreement of the parties to transfer the consolidated causes to the circuit court of a county in another judicial district was sufficient to authorize the change of venue to that court, although not the forum to which the causes should have been removed if no agreement had been made. 7. Special judge selected by agreement oe parties acting without being sworn, etc. — If the special judge whom the party selected, and had a right to select, acted without complying with any requirement of article 8 of chapter 37 of the Revised Statutes, objection to such non-compliance was waived by the acquiescence of the parties at the time. (Vandever, &c. v. Vandever, &c., 3 Met. 137.) 8. Fiduciary debts have priority in the settlement oe the estates oe deceased persons only.- — See section 33, article 3, chapter 37, of the Revised Statutes, which applies alone to estates of deceased persons. 9. T. K. Salter was the surety of G. J. Salter in a promissory note. They renewed this note, signing it as if both were principals, with Hall Anderson, who signed it as surety, with the word “security” appended to his signature. Owing to the circumstances of this case, Hall Anderson is held to have been the surety of both the Salters, although G. J. Salter testified that he regarded him as equally bound as co-surety with T. K. Salter. 10. Levy of execution and sale of land Us pendens. — Land being ievied on and sold, during the pendency of proceedings in equity, to subject the same to sale to pay debts, the purchaser at such execution sale is a Us pendens purchaser, and can not effectually oppose a judgment to sell the land in such proceedings unless the Us pendens was lost by want of diligence in prosecuting- the suit.
69 Ky. 639Leiber v. Liverpool, London, & Globe Insurance (1869)
Case 96 — PETITION ORDINARY — CITED 30 Mo. 160, New Mark v. London & Liverpool F. and L. Ins. Co. 14 Mo. 3. 16 La. 426, O. Talaman & Co. v. Home and Citizens Ins. Co.
69 Ky. 644Shaw v. Dixon (1869)
APPEAL PROM HENDERSON CIRCUIT COURT. 1. “ Persons of unsound mind, incompetent to take prudent ca/re of themselves and property, are entitled to the protection and curation of courts of equity as much as technical idiots and lunatics.” (Nailor, &c. v. Nailor, &c., 4 Dana, 339.) 3. The wife and children of a person of alleged unsound mind, in this case, filed their petition in equity, charging that their home, his onlj' property,- had been sold, under execution, at an enormous sacrifice, in consequence of his recklessness and neglect, resulting from unsoundness of mind, positively and specifically alleged, and praying therefore for a vacation of the sale, and for genee'al relief. The circuit court, sustaining a demurrer to the petition, dismissed it. On this appeal that judgment is reversed. Held, that the appellants, the wife and children, “have not such certain and proximate interest in the property as to entitle them to the specific relief sought by their petition, ' yet they had, on the allegations admitted by the demurrer, an unquestionable right to require an inquisition and curator, and their general prayer entitles them to relief to that extent. An inquisition is ordered, and if he is found incompetent the circuit court is directed to appoint a committee, who should, as a party, prosecute the petition with Mm and in Ms behalf.
69 Ky. 646Milliken v. Dinning (1869)
APPEAL PROM SIMPSON CIRCUIT COURT. 1. A SURETY IN' A JUDGMENT DEBT BECOMES A PRINCIPAL IN THE BOND BY WHICH THAT JUDGMENT IS REPLEVIED. Under the provisions of section 11, chapter 97, Revised Statutes (2 Stanton, 400), for the relief of sureties in bonds having the force of a judgment, the surety in a judgment debt, who signs a bond by which that judgment is replevied, must be regarded as a principal in such bond. 2. A surety in a judgment debt, who signs a bond replevying such judgment, being a principal in the replevin bond, is not released from liability on such bond by the plaintiff’s failure for the space off a year to issue execution. S. A surety in an obligation will be released by the seven years’ limitation, although the debt in tbe mean time bas been merged first by a judgment and again by a replevin bond.
69 Ky. 648Brown's Ex'r v. Brown's Devisees (1869)
Case 99 — PETITION EQUITY — CITED Revised Statutes, secs. 2, 4, art. 2, chap. 46. Revised Statutes, sec. 2, chap. 30, 1 Stanton, 420. 4 Chitty’s Digest, “ Wills,” “per stirpes and per capita,” sub-secs. 4-16, page 3175. 11 B. Mon. 33, Lackland’s heirs v. Downing’s ex’rs. Revised Statutes, sec. 2, art. 2, chap. 46.
69 Ky. 653Fox v. Apperson's (1869)
APPEAL FROM MONTGOMERY CIRCUIT COURT. Affidavit and demand not neeessm'y before filing a petition in equity against the executor of the agent of plaintiffs for a discovery and settlement of his accounts as such agent. Plaintiffs’ petition charged that defendant’s testator had, as agent, sold lands for the benefit of plaintiffs, for which he never accounted, and the plaintiffs have no knowledge of the fiducial transactions of the employee; that the defendant (his executor) holds the only evidences thereof, and not only withholds them, but declines to make a settlement, and therefore praying for a discovery and settlement. Held, that the affidmit and demand, before filing the petition in this ease, were not required by the statutes. “But after discovery, and before a coercive settlement, the spirit of the amendatory enactment of February 38, 1865 (Myers’s Supplement, 334), might require for'the executor’s reciprocal security an affidavit of the amount paid by the testator, or of the non-payment of anything.”
69 Ky. 656Owens v. Rawleigh (1869)
Case 101 — PETITION ORDINARY — CITED 5 J. J. Marshall, 37
69 Ky. 659Mitchell v. Moore (1869)
APPEAL PROM M’LEAN CIRCUIT COURT. 1. When the condition of a married woman does not appear in the proceedings against her, on her petition the court should grant a new trial, vacate or modify the judgment, according to the rights of the parties. 2. A trustee with trust funds in his hands can not at a decretal sale become purchaser of the trust estate, and hold the same for his own use. But 3. The cestui gue trust in such a case can not recover both the land and. the trust funds, but should be compelled to elect to take one or the other on a proper settlement of accounts.
69 Ky. 662Phillips v. Skinner (1869)
APPEAL FROM WEBSTER CIRCUIT COURT. 1. Lien on land enforced, although by mistare the deed was not .so DRAWN AS TO RESERVE A LIEN UNDER THE STATUTE. — In an action to enforce an alleged vendor’s lien on,land for purchase notes, the plaintiff charged that through inadvertence or mistake the deed was so drawn as not to secure a lien, which was intended by the parties according to the contract. The allegations of the plaintiff as to the contract for a lien, and the mistake in the deed, were not denied by the defendants, who were also alleged to be fraudulent purchasers, with full knowledge of the plaintiff’s lien. Held, that on these pleadings the circuit court properly decreed a sale of the land for paying the purchase notes. 2. Rehearing improperly granted by the circuit court — Judgment REVERSED, AND ORIGINAL JUDGMENT RESTORED AND AFFIRMED. — On a petition of one of the defendants for a rehearing in this case, the defendant alleged that his failure to deny the mistake was the fault of his counsel who drew his answer, and that if the case should be opened, he would file an amended answer denying the lien and mistake. The affidavit of the attorney who drew the answer was not taken. Held, that the petition did not present any sufficient ground for a rehearing. The order for a rehearing is therefore reversed, and the original judgment for the sale is restored and affirmed. 3. An agent in this case is held personally responsible for a loss resulting tom his infidelity to his principal, in his failing to collect a debt placed in his hands for collection. See opinion for facts of the case.
69 Ky. 665Porter v. Ralston (1869)
Case 10A-PETITION ORDINARY — CITED 83 Pickering, 457, Miner v. Bradley. 3 Parsons on Contracts, 517, 519, 533, 675. 6 Term Rep. 330 (3 Smith’s L. C. 1), Cutter v. Powell. 11 Mete. (Mass.) 440, Fuller v. Brown. 30 Vermont, 619, Seavor v. Morse. 11 Vermont, 557, Fenton v. Clark. 30 Maine, 453, Dickey v. Linscott. 16 B. Mon. 337-347, Foster v. Watson. Rawle on Covenants, 484, 476-478. Taylor’s Landlord and Tenant, secs. 354, 530. 1 Wms. Sanders, 330. 3 H. Bl. 389, Terry v. Duntze. 3 John. 373, Seers v. Fowler. 2John. 387, Havens v. Bush. 2 Bibb, 15, Craddock v. Aldridge. 4 Littell, 253, Mason v. Chambers. 10 John. 203, Cunningham v. Morell. 9 Dana, 64, McClure v. Kush. 7 B. Mon. 593, Allen v. Sanders. 3 Bush, 166, Thomas v. Porter. 38 Mo. 314, Phillips v. Evans. 4 Bush, 342, Munday v. Robinson. 1 Powell on Contracts, 2 Walpole ed. 444, 445, 446. 8 Modem, 51, Winnington v. Briscoe. 5 Brown’s Par. Ca. 269, Bowes v. Lord Shrewsbury. 2 Eq. Cases Ab. 26. Cases in Chancery, 66. 3 Brown’s Parliamentary Cases, 389. 19 La! An. Rep. 234, Wainright v. Bridges. 20 La. An. Rep. 152, 153, 343, 344, 357. 34 Ga. 232, Hand v. Arm strong. 4 Taunton, 45, Baker v. Holtpzaffel. Ambler’s Rep. 619, Brown v. Quiltern. 5 Bing. N. C. 591, Izon v. Gorton. 3 Edw. Ch’y Rep. 315, Kerr & King v. Merchants Ins. Co. 5 Ohio, 303, Winton v. Cornish. 11 Mote. 448, Starkwell v. Huston. 26 New York, 498, Graves v. Berdan. 1 Bibb, 536, Redding v. Hall. 5 Mon. 360, Harrison v. Murrill. 2 Hen. Munf. 5, George v. Elliott. 2 Bailey’s S. C. Rep. 424, Baggott v. Parnell. 9 Mo. 869, Dudgeon v. Leas. 4 Eng. Ark. Rep. 463, Collins v. Woodruff. 2 B. Mon. 166, Thompson v. Thompson, 1 Dana, 464, McDonald v. Eord. Rev. Stat. sec. 6, art. 4, chap. 47, and.sec. 4, chap. 40 Act of 1796 (1 M. & B.) 739. 15 B. Mon. 555, Patton v. McCane. CITED 2 Parsons on Contracts, 13, 14. 14 B. Mon, 413, 414. 1 Parsons on Contracts, 440, 441. 2 Kent’s Commentaries, 658, 665, 186. 2 Duvall, 189. 3 Bush, 178.
69 Ky. 669Jamison v. Petit (1869)
APPEAL FROM ©RAMT CIRCUIT COURT. 1 An oi'al agreement fixing a dividing line between adjoining lands of antagonist parties, not being within the statute of frauds and perjuries, may be enforced in equity. 2. An infant defendant is entitled to a new trial, under subsection 5 of section 579 of the Civil Code, “when the condition of such defendant does not appear in the record nor the error in the proceedings.”
69 Ky. 671Morris v. Schollsville Branch Red River Turnpike Road (1869)
APPEAL PROM CLARK CIRCUIT COURT. Turnpike stone-quarries, use op, and not the pee, acquired by condemnation UNDER THE STATUTE. By condemning a quarry in the manner prescribed by subsections 2 and 4 of section 1, chapter 103, Revised Statutes, for the use of a turnpike road, such road company acquires only the use of the land for the purposes mentioned in the statute, the fee still remaining in the original owner of the land. In this case the owner of the fee entered upon a condemned fourth of an acre of land adjoining his farm, and removed therefrom a small house which he had erected thereon prior to the judgment of condemnation. The turnpike road corporation sued, and in the circuit court recovered a judgment in damages for the removal. That judgment is reversed.
69 Ky. 676Beall v. Clore (1869)
Case 107 — PETITION ORDINARY — CITED 3 Kent, 588, 589, 536, 537. 1 Campbell, 360, Rex v. Lloyd. 3 Bing. 447, Jones v. Dean. 1 Iredell N. O. Rep. 433, Woolard v. McCullough. 18 Louisiana, 386, City Council v. Holland. 6 Hill N. Y. 407, Hunter v. Trustees of Sandy Hill. 4 N. H. Rep. 1, Prichard v. Atkins. 3 Vermont, 530, State v. Collin. 10 Peters, 602, New Orleans v. United States. 10 B. Mon. 22, Elliott v. Treadway. Woolrich on Ways, 10. Phillips on Evidence, 196. 6 Wendell, 651, Denning v. Roane. 15 B. Mon. 84, Bowman v. Wickliffe. 2 Metcalfe, 98, Hall v. McLeod. 13'Wendell, 98. 1 Blackford (Ind.) 45. 20 Wendell, 99. 6 Mod. 3. 1 Cushing (Mass.) 285. 5 Denio, 213. 2 Lord Raymon, 922. 3 Swanston, 99, Newmorch v. Brandlings.
69 Ky. 681Curd v. Dodds (1869)
Case 108 — PETITION EQUITY — CITED 1Story’s Equity, sec. 186, pages 387, 377. 1 Fonblanque’s Equity, chaps. 3, 4. Sugden on Vendors, 262. 2 Equity Abridgment, 489. 8 B. Mon. 543, Davis v. Tingle. 15 B. Mon. 589, Johnson’s heirs v. Chandler’s heirs. 1 Marshall, 103, Martin v. Lewis. 4 Littell, 167. 1 Peters, 1. 1 J. J. Marshall, 86, Fishback v. Woodford. 2 Johnson’s Chancery, 585. 1 Greenleaf on Evidence, secs. 275, 276, 277. 1 Marshall, 600. 1 Marshall, 227. 2 Kent, 483-486. 4 Monroe, 85, Collins v. Thompson & Johnson. 3 Metcalfe, 30, Robinson v. Bright’s adm’r. CITED 6 Dana, 229, Owens v. Snodgrass. 2 Hilliard on Torts, secs. 8, 9,10, 11, page 360. 7 J. J. Marshall, 268, Williams v. Hudson and wife. 2 Dana, 238-40, Estill and wife v. Ford. 2 Bush, 52, Cook v. Redman. Reeves’s Domestic Relations, chap. 5, page 72. Palmer’s Reports,-. 2 Hilliard on Torts, chap. 42, sec. 11, page 506. 26 Eng. Law and Equity, 393, Fairhurst v. Liverpool, &c. 17 Ind. 463, Schaeffer v. FitMan. 48 Penn. 497, Keen v. Hartman. 7 B. Mon. 293, Jarman v. Wilkerson. 7 B. Mon. 334, Breckinridge y. Coleman. 10 B. Mon. 321, Coleman v. Woolley’s ex’r. 12 B. Mon. 329, Johnson and wife v. Jones. 10 B. Mon. 46, Hall and wife v. Sayre. 15 B. Mon. 328, Sweeney y. Smith. 16 B. Mon. 486, Burch and wife v. Breckinridge. 16 B. Mon. 637-642, Falmouth Bridge Co. v. Tibbatts. 2 Kent’s Commentaries, 167. 7 Mass. Rep. 21, Fowler v. Shearer. 7 Mass. Rep. 291, Colcord v. Swan. Rawle on Covenants, 573, 574. 9 Dana, 222, Applegate v. Gracy. Bacon’s Abr., title Bar. and Feme, G. Haw. K. P. C., p. 1, chap. 1, sec. 9. 3 Blackstone’s Commentaries, 414. 2 Saunders, 117, b. 1. Chitty on Pleading, 99. 6 Dana, 229-230, Owens v. Snodgrass. 2 Stan. Rev. Stat., chap. 47, art. 2, subsec. 1, sec. 1, p. 8. 1 Bush, 7, Agnew and wife y. Williams. 1 Parsons on Contracts, chap. 18, sec. 4, page 306.
69 Ky. 687Gray v. Briscoe (1869)
APPEAL FROM MERCER CIRCUIT COURT. 1. One non-resident may sue out an attachment against another non-resident of this state. — A non - resident of this state, in an action against another non-resident, in a court of this state, may sue out an attachment against the property of the defendant on the ground that he is a non-resident, under section 221, Civil Code. 2. A chose in action may be assigned by parol. — In this case the evidence was insufficient to sustain such an assignment against an attachment lien. 3. Conventional interest in the state of Missouri. — While six per centum per annum is the lawful interest of Missotui, parties may agree, in writing, for the payment of interest not exceeding ten per cent, per annum on money due or to become due upon any contract. The note, executed in that state, sued on in this case stipulated to pap ten per cent, interest from the date of the note, which was papable one dap thereafter. Held, that the payee, by the above stipulation, bound himself to pay ten per cent, interest until the debt was paid. Judgment for debt and interest at the rate of ten per centrum per annum to date of judgment in this state, and at the rate of six per centum per annum, thereafter. (.Brewster v. Wakefield, 22 How. 118.) 4. Ordinarily, in states where a conventional rate of interest may be stipulated for, the rate of interest provided for by the general law prevails after the maturity of -the debt. Unless the conventional rate is contracted to be paid after maturity, that rate ceases at maturity in most of those states.
69 Ky. 692Kinney v. O'Bannon's (1869)
APPEAL PROM BALLARD CIRCUIT COURT. 1. Non-resident defendants may appear and defend within five years. — At any time within five years after judgment has been rendered against non-resident defendants, who were constructively summohed, any one or more of such defendants, who have not before appeared, may appear and have the action retried, and upon “security for the costs being given” be admitted to make defense to the action. This right is expressly conferred by section 445 of the Civil Code. 2. The legal requirement of “security for the costs,” under said section 445, does not prescribe the form of the security for costs required, whether of a bond or recognizance of record. 3. Recognizances of record in civil as well as criminal proceedings, when taken as security, and not inconsistent with any law prescribing the form of such security, were treated as valid at common law, and have been repeatedly recognized as obligatory by this court. (Hamilton v. Commonwealth, 3 Monroe, 212; McClure v. McKee, 14 B. Mon. 268.) 4. A recognizance of record was entered into in this case as security for costs, as required by said section 445. Such recognizances may be enforced by summary proceedings, like the liability of a prochein amy, or of an attorney in certain cases, or by an ordinary action.
69 Ky. 698Weil v. Silverstone (1869)
APPEAL PROM FULTON CIRCUIT COURT. 1. A vendor of property is a competent witness to prove title in his vendee, , but "he is incompetent as a witness for his levying creditor, who offers Mm on the assumed ground of fraud. (Smead, &c. v. Williamson, 16 B. Mon. 492.) 2. One party taking a deposition and declining to read it, the ADVERSE PARTY MAY READ SUCH DEPOSITION, ALTHOUGH THE WITNESS WOULD HAVE BEEN INCOMPETENT IF OFFERED BY HIM. Objection to the competency of the witness was waived by taking Ms deposition. Having examined the witness, the adverse party became entitled to do so also. A party should not be allowed to experiment on Ms rights by introducing and examining a witness, or by taking the deposition of a witness competent for him, and on finding it unfavorable to him to reject it as incompetent testimony against him. (3 Greenleaf on Evidence, sec. 326.) 3. Confusion op goods — A party who fraudulently confounds the GOODS OP A DEBTOR WITH HIS OWN, IP SUCH GOODS ARE LEVIED ON OR ATTACHED, MUST IDENTIFY OR LOSE HIS OWN PROPERTY. If a party willfully so confounds the property of another with Ms own that the line of distinction can not be traced, all the inconvenience of the confusion is thrown upon the party who produces it, and generally it is for him to distinguish his own property or lose it. (Hunt v. Ten Eyck, 2 Johnson’s Chancery, 62; 2 Blackstone, 405; 2 Kent, 365; Loomis v. Green, 7 Maine, 386.) And 4. In the case of the levy of an execution or attachment against a debtor on his property, which another person has fraudulently confounded with Ms own, if the latter would reclaim his own property, the burden of proof is on him to distinguish it from that of the debtor. (Drake on Attachment, sec. 199, Treaty. Barber, 7 Conn. 274; Robinson v. Holt, 39 N. H. 257; Smith v. Sanborn, 6 Gray, 134.) And 5. If a third party willfully mixes or confuses with his own the goods of a debtor, which have been fraudulently transferred to him by such debtor with the intent to delay, hinder, or defraud his creditors, and an attachment against such debtor is levied upon the goods so confused and mixed together, the fraudulent purchaser has the burden of identifying Ms own goods from those embraced by such transfer, in order to exempt the goods so owned by him from sale under the attachment. 6. The jury should not have teen instructed “that when witnesses are equally credible the greatest weight ought to be given to those who have the best opportunity to learn and know the material facts.” 7. lies gestee. — Declarations made by the purchaser of goods relative to and contemporaneous with his acts in removing the goods were admissible against Mm in this case as evidence of fraud, as part of the res gestee, and tending, in some degree, to explain the principal facts under investigation.