70 Ky.

Volume 70 — Kentucky Reports

172 opinions

70 Ky. 1Creager v. Walker (1870)
1. Transferring action to equity docket is error when no valid equitable defense is presented. 3. When the plaintiff is entitled to an inquiry of damages by a jury, and is deprived of this right by the action of the court in transferring the action to equity, having excepted to the order transferring to equity, the plaintiff is not concluded by the judgment dismissing his petition, although he failed to take proof of the causes of action therein alleged. 3. Equitable ownership of land by defendant not a good defense to an action for trespasses on the land in possession of the plaintiff. The defendants, justifying the acts complained of, pleaded that one of the defendants to whom the plaintiff had assigned the bond of a third person for the land was the equitable owner thereof, and that he and the other defendant, acting by his authority, peaceably entered on the premises without the consent of the plaintiff who was in possession, and removed portions of the buildings and fixtures, as they lawfully might. Held, that the facts pleaded above did not constitute a valid defense.
70 Ky. 4Davis v. Dycus (1869)
Case 2 — PETITION EQUITY APPEAL PROM LIVINGSTON CIRCUIT COURT. CITED Ms. OiJ-, September, 1854, Miles v. Watson. Civil Code, sec. 440. 1 J. J. Marsh. 377. 14 B. Mon. 270. 1 Litt. 417. 1Marsh. 158. 1 Marsh. 526. 3 Marsh. 43. 6 J. J. Marsh. 197. 4 B. Mon. 568. 5 B. Mon. 273. 3 Mon. 267. 1 J. J. Marsh. 525. CITED 6 J. J. Marsh. 515, Vittitoe, &c. v. Jones, &c. Ms. Op., January, 1856, Branaman v. Palmer. 3 Bibb, 301, French v. Howard. 2 Bush, 121, Cook v. Gray. 3 Bush, 675, Calhoun v. Belden. 2 Bush, 57, Casey v. Lucas. 9 B. Mon. 561, Fitzhugh’s heirs v. Taylor. M. & B.’s Statutes, “ Absent Defendants.” Loughboring’s Statutes, “Absent Defendants.” 13 B. Mon, 208, Milward v. Lair. 4 Dana, 437, Bustard v. Gates and wife. 9 Dana, 395, Bank of United States v. Cochran. 8 B. Mon. 105, Benningiield v. Beed. 1 Bibb, 347, Beed v. Hatcher. 1 Bibb, 565, Dupuy v. Johnson. Civil Code, secs. 91, 427, 93, 97, 578, 586. 14 B. Mon, 583, Phillips’s heirs v. Jamison. 1 Duvall, 395, Buckner v. Bush.
70 Ky. 10Grill v. Hewett (1869)
1. Auctioneer’s memorandum evidence of sale of real estate. — The memorandum of the auctioneer of the sale of a lot, signed with the name of the purchaser by his authority and in his presence, was a sufficient memorial of the contract to exempt it from the statute of frauds. 2. The auctioneer is regarded as the agent of both the seller and purchaser of either real or personal property sold by him, and if on making the sale he signs for them a memorandum of the sale, such memorandum will be a sufficient written memorial of the contract to bind the purchaser. 3. Commissioner’s deed made after death of the plaintiff. — Such a deed made to the plaintiff, who was the purchaser, on notice without revivor, did not pass the legal title. The order confirming the commissioner’s sale did not import a judgment directing a conveyance. After the death of the plaintiff, who was the purchaser, without a revivor, or an original or supplemental action for the purpose of acquiring the title, the court was not authorized on the mere notice and motion to order a conveyance to the devisee of the purchaser.
70 Ky. 16Haggard v. Conkwright (1869)
Case 4 — PETITION ORDINARY APPEAL PROM CLARK CIRCUIT COURT. CITED Act of Congress of July 13,1861, United States Statutes at Large, vol. 12, section 5, page 297. Act of Congress of February 25,1863, United States Statutes at Large, vol. 12, page 696. President Lincoln’s Proclamation of August 16, 1861. 1Peter’s Circuit Court Reports, 896, Corn. y. Perm. 1 Kent, section 3, page 63. 7Wallace, 452, Ward y. Smith. 3 Washington, 396, Denniston v. Imbrie. 16 Johnson, 57, Griswold y. Waddington. 16 Johnson, 438, Griswold y. Waddington. 2 Bush, 405, Anderson’s administrator y. Whitlock. 2 Bush, 466, Hyatt y. James’s adm’r. 4 Harris & McHenry, 161. - 1 Paine’s Circuit Court Reports. 8'Cranch, 181-193. 10 Johnson, 69. cited 1 Smith’s Leading Cases, 341, Collins v. Blanton. Carth, 252, Bartlett y. Yinor. 10 Bing. 110, DeBegnis y. Armistead. 10 Bing. 110, Foster y. Taylor. 2 Camp. 147, Law v. Hobson. 5Bing. N. C. 76, Ferguson’s assignee y. Norman. 5 B. & Aid. 335, Bensley v. Bignold. 2 Moore, 14, Marchant v. Evans. 4 Pick. 314, Dedham Bank v. Chickering. 10 English Law and Equity, 424, Hall v. Dyson. 8A*. & E. 129, Leoy y. Yeates. 8 Smedes & Marsh, 624, Adams v. Brown. 2 Comstock, 449, Gray v. Hood. 14 Sm. & M. 18, Coulter v. Robertson. 2 Carr & Payne, 472, Billard v. Haydon. 8 B. & C. 553, Helps v. Glistener. 9 B. & O. 192, Little v. Poole. 11 Ad. & E. 1033, Howden v. Haigh. 6 Bing. 656, Waite v. Jones. 2 Bing. N. C. 634’, Shackwell v. Rozier. Co. Eliz. 199, Featherstone v. Hutchinson. 5 Barr, 452, Filson’s trustees v. Hines. 2 Gray, 258, Perkins v. Cummings. 3 Bibb, '497, Brown’s adm’r v. Langford’s adm’r. 11 Wheat. 258, Armstrong v. Toler. 8 Cranch, 155, The Rapid. Lawrence’s Wheaton, pp. 547-549, and 556. 1 Gallison, 295, The Rapid. 8 Cranch, 193, The Julia. 5 Wallace, 405, The William Bagaley. 7 Peters, 586, Scholefield v. Eichelberger. 6 Wallace, 535, Hauger v. Abbott. 6 Wallace, 531, The Ouchita Cotton. 7 Wallace, 543, Coppell v. Hall. 8 Term Kep. 548, Potts y. Bell. 7 Taunton, 439, Willison v. Patteson. 33 Eng. L. & E. 544, Clementson v. Blessig. 1 Duvall, Adams Express Co. v. Bland. 1 Bush, 630, Martin v. Horton. 3 Bush, 443, Hedges v. Wallace. 7 Wallace, 447, Ward v. Smith. 3 Black, 687. 3 Wallace, 417.
70 Ky. 23Kentucky Farmers Mut. Ins. v. Mathers (1869)
1. Liens on insured property retained in unrecorded policies not good against bona pide purchasers. — “All buildings insured by and with said company, together with the light, title, and interest of the assured to the lands on which they stand, shall be pledged to the company, and the company shall have a lien thereon against the assured during the continuance of his or her policies.” The lien attempted to be created by the foregoing provision in the policy did not extend to bona fide purchasers of insured property. 2. Notwithstanding the foregoing provision in the policy, a sale and conveyance of property insured to a bona fide purchaser without notice destroys the lien of the insurance company for the payment of the premium-note of the vendor or previous owner. (McCulloch v. Indiana Mutual Eire Ins. Co., 8 Blackford, 50; 2 Carter, 645.) 3. The provision of the charter declaring the policies of the company void upon alienation of the property insured, except in particular contingencies, means only that they may thereby become void where the right of exoneration is not waived by the insurer, and not, at all events, to become absolute nullities as to both parties. (Baer. v. The Phcenix Ins. Co., 4 Bush, 242.)
70 Ky. 26Moore v. Boner (1869)
Case 6 — PETITION ORDINARY APPEAL PROM GARRARD CIRCUIT COURT. OITED Revised Statutes, chap. 57, 3 Stanton, 103, 103. Civil Code, secs. 15, 16. 15 B. Mon. 30, Caskey v. Lewis. Act of January, 1797,1 M. & B. 394, section 39. CITED 1 M. & B. Statutes, section 29, page 294. Revised Statutes, 1 Stanton, section 13, page 288.
70 Ky. 29Ross v. Wilson, Peter & Co. (1869)
Case 7 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED 2Hilliard on Mortgages, chap. 47, sec. 13, chap. 43. 2 Duvall, 76, Adams v. Settles. 7 Michigan, 108, Oliver v. Eaton. Civil Code, section 273. 2 Kent, 4th edition, pages 154-157, 1'60. 2 Story’s Equity, sections 1017, 1231, 555. 1 Dana, 189, Buck v. Sanders. 1 Littell, 319, Hughes v. Graves. 2 Johnson’s N. Y. Rep. 510-25, Johnson v. Stagg. 1 Yeates, 172, Evans v. Jones. 1 Dali, 453, Leving v. Will. 3 Monroe, 6, Ward v. Trotter. 9 B. Monroe, 124, Forman v. Proctor. 18 B. Monroe, 444-5, Phillips v. Winslow. 24 Hlinois, 17, Gregg v. Sandford. 2 Story’s Circuit Court Reports, 630, 644. Cross on Liens, pages 187-192. 1 Swanston, 309, Prebble v. Boyhurst. 4 Russ. 318, Needham v. Smith. 5 Yesey, 202, Randall v. Willis. 1 Russ. & MylneRep. 719, Scwind v. Hibbert. 2 Metcalfe, 258, Briggs v. Parkham. 3 Metcalfe, 515, Jones v. Huggeford. 14 Connecticut, 255-65, Holly v. Brown. 20 Maine (7 Shipley), 411, Abbott v. Goodwin. 9 Barbour, 448, Frost v. Willard. 14 Pick. 497, Macauber v. Parker. 23 Howard, 123, 126-130. 6 American Law Register, 1857-8, pages 37, 38. 9 Jurist (N. S.) 213, Holroyd v. Marshall. 2 United States Digest, page 428. 7 Jurist, 771, Topfield v. Hillman. 18 Illinois, 401-2, Davis v. Ransom. 8 Dana, 253. 2 Dana, 204. 1J. J. Marshall, 282. 17 B. Monroe, 548-9. 3 J. J. Marshall. 4 Monroe, 444. 26 Illinois, 19. 12 L. & E. 511. CITED 2Hilliard on Mortgages, chapter 43, sections 12-26. 18 B. Monroe, 445, Phillips v. Winslow. 23 Howard, 128, Pennock v. Coe. 1 Parsons on Contracts, 5th edition, 570-71. 2 Blackstpne, 404-5. . 2 Kent, 360-5. 2 Parsons on Contracts, 5th edition, 134, and notes. I J. J. Marshall, 458, Lampton v. Preston. 11 Metcalfe (Massachusetts), 493, Willard v. Rice. 3 Parsons on Contracts, 5th edition, 198-200. 9B. Monroe, 125, Foreman v. Proctor. II Howard, 396, Fowler v. Merrill. 14 Connecticut, 266, Holly V. Brown. 33 New Hampshire, 433, Perry v. Pettingill. 37 Pennsylvania, 164-168, McDowell v. Rissoll. 24 Illinois, 19, Gregg v. Sandford. 4 Ohio, 485, Chapman v. Weimer. 22 Illinois, 380, Read v. Wilson. 10 Metcalf (Mass.) 481 (493), Jones v. Richardson. 1 Metcalfe (Kentucky), 404, Short v. Tinsley. 9 N. Y., 5 Selden, 216-19, Edgill v. Hart. 18 Hlinois, 401-2, Davis v. Ransom. 17 New Hampshire, 304-5, Ranlett v. Blodgett. 16 Ohio, 547, Collins v. Myers. 5 Ohio, 1, Freeman v. Raws on. 8 B. Monroe, 11-12, Waller v. Cralle. 9 B. Monroe, 282, Gaines v. Wiggs. Ross on Mortgages, 58.
70 Ky. 37Swift & Co. v. City of Newport (1869)
Case 8 —PETITION APPEAL FROM CAMPBELL CIRCUIT COURT. CITED Constitution of Kentucky, article 2, section 37. Act of February 16, 1867, 1 Session Acts, 1867, p. 419. Act to amend chap. 63, 2 Stanton, 135; 2 Stanton, 509. 4 Met. 75, Chiles & Thomas v. Monroe. 2 Duvall, 479, O’Donohue v. Aiken. 1 Bouvier’s Law Dictionary, 223. 1 Blackstone, 108, 114. Charter of Virginia, granted by James I. in 1606. Hallam’s Middle Ages, chap. 8, part 3. Brady on Boroughs, 75 et seq. 1' Peckwell’s Reports, Cases of Tewksbury and Diskeard. 2 Lord Ray, 951, Ashbey v. White. Laws of Newport, pp. 39, 46, 57, 85, 99, 103, 113, 129, 130, 131. Hey wood, on Borough Elections, 11. Revised Statutes, chapter 62, sections 8, 9, 2 Stanton, 120. 3VIs. Op., Winter Term, 1862-3, Kennedy v. Covington. 1 Session Acts, 1865-6, pp. 175, 290, 419 ; 2 ib. 41, 434. 2 Session Acts, 1867-8, pp. 129, 426. 9 B. Monroe, 330, Cheany v. Hooser. 15 B. Monroe, 498, Covington v. Southgate. 17 B. Monroe, 223, Sharp’s executor v. Dunavan. 2 Bush, 275-6, Arbegust v. Louisville. 2 Metcalfe, 553, Maltus v. Shields. 4 Jacob’s Law Dictionary, 275. 3 Monroe, 334, Lansdale v. Brashear. 6 J. J. Marshall, 543, Dyott v. Letcher & McKee. CITED Laws of Newport, pp. 131, 138, 104, 107-9, 231, 116. 1 Session Acts, 1867, page 419, act of February 16, 1867. 2 Metcalfe, 192, White v. White. 17 B. Monroe, 223-30, Sharp’s executor v. Dunavan.
70 Ky. 43Hall v. Brummal (1869)
Case 9 — PETITION EQUITY APPEAL EROM HICKMAN CIRCUIT COURT. CITED 1 Bush, 339, Miller, &c. v. Hall and wife. CITED 1 Bush, 339, Miller, &c. v. Hall and wife.
70 Ky. 46Landrum v. Farmer (1869)
Case 10 — PETITION ORDINARY APPEAL PROM MARSHALL CIRCUIT COURT. CITED 1Metcalfe, 119, 120, Overby’s ex’r v. Overby’s devisees. Civil Code, sections 93, 161. Constitution of Kentucky, section 22, article 8. 1 J. J. Marshall, 256, Breckinridge v. Ormsby. 3 J. J. Marshall, 164, Ducker v. Gray. 2 J. J. Marshall, 143, Watkins v. Owens. 5 Monroe, 3, Lewis v. Martin. 1 Bibb, 410, Dunn and wife v. McMullen. 3 Littell, 106, Owings v. Beall. 2 Bush; 126, Webb v. Wright. CITED Civil Code, sections 93, 579, and Myers’s notes b and c, page 535. Revised Statutes, Act of March 9, 1854, 2 Stanton, 102. 1 Bush, 172, White v. Crutcher. 2 Bush, 581, Humphreys v. Walton. 18 B. Monroe, 98, Anderson v. Anderson. 3 Metcalfe, 469, Hocker, &c. v. Gentry, &c. 3Metcalfe, 517, McManama v. Garnett. 1 Graham & Waterman on New Trials, side-pages 188, 196. 3 Graham & Waterman on New Trials, 881, 894-98. 1 Story’s Equity Jurisprudence, sections 64, 71. 13 B. Monroe, 284, Howard v. Kentucky and Louisville Mut. Ins. Co. 2 Bush, 127, Webb v. Wright. 1 Bush, 107, Webb v. Wright. 15 B. Monroe, 630. 5 Wendell, .127.
70 Ky. 50Larue v. Hays (1869)
Case 11 — PETITION EQUITY APPEAL PROM HARDIN CIRCUIT COURT. CITED Act of 1796, secs. 1, 9, M. & B. 439-41; ibid. 437-8. 3 Monroe, 54, Breekenridge v. Todd. 7 B. Mon. 401, Varnarsdal v. Fauntleroy’s heirs. CITED 3 Marshall, 337, Birney v. Harm. 4 Monroe, 367, Taylor v. Whiting. 4 J. J. Marsh. 651, Banks v. Johnson. 4 J. J. Marshall, 148, Currie v. Fowler. 1 Bush, 348, Skillman v. Hamilton.
70 Ky. 53Rich v. Rich (1869)
Case 12 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT.
70 Ky. 57Winterbower v. Haycraft (1869)
Case 13 — PETITION ORDINARY APPEAL FROM HARDIN CIRCUIT COURT. CITED Revised Statutes, chapter 91, sections 8, 17, 18, 22, 24, 37. 1 Metcalfe, 499, Walters v. Chinn. 2 Bush, 101, Harris, &c. v. Perry. Revised Statutes, chapter 36, section 3. cited Revised Statutes, chapter 91, section 17; chapter 36, section 3.
70 Ky. 59Wood v. Goff's curator (1869)
Case 14 — PETITION EQUITY APPEAL PROM LOGAN CIRCUIT COURT. CITED 1 Marshall, 112, West, &c. v. Sanders. 1 Marshall, 210, Mason and wife v. Baker. 3 Mon. Ill, Surlott v. Beddow. 16 B. Mon. 529-35, Smead, Collard & Hughes v. Williamson. 10 B. Mon. 82, Hawkins v. Moffitt. 9 B. Mon. 515, Trimble v. Ratcliff. 2 Bush, 75, Lowery v. Fisher, &c. 5 J. J. Marsh. 554, Lyne v. Bank of Kentucky. 1 Dana, 533, Doyle v. Sleeper. 1 Williams on Executors, 186-7. Revised Statutes, chapter 40, section 2. Civil Code, sections 137, 393, 140. 1 Met. 397, Short v. Tinsley. 3 Bush, 402, Whitaker v. Garnet. 1 Johnson’s Chancery, Rep. 478.
70 Ky. 66Boone v. Hall (1869)
Case 15 — PETITION EQUITY APPEAL PROM HICKMAN CIRCUIT COURT. CITED Bankrupt Act of Congress, sections 1,14. 2 Bibb, 204, Edwards v. Coleman. 14 B. Monroe, 404. 7 B. Monroe, 654, Kain v. Pilcher. CITED Bankrupt Act of Congress of 1867, section 14.
70 Ky. 68Bowman v. Eggner (1869)
1: Surveys of lands west of the Tennessee River — Vacant land LEFT UNSURVEYED BY MISTAKE IN A REPORTED FRACTIONAL QUARTER-SECTION is subject to entry. — In sectionizing lands west of the Tennessee River W. T. Henderson, in consequence of high water, left the survey unfinished of what he designated fractional northwest quarter of section four, township three, range six west. In attempting to complete the survey of said supposed fractional quarter-section, Daniel Rowlett by metes and bounds surveyed one hundred and fourteen acres, and reported the same as said fractional quarter-section; but by mistake he left unsurveyed in said quarter-section forty-six acres. Patents issued in 1833 for the one hundred and fourteen acre fraction and in 1863 for the forty-six acre fraction of said quarter-section. The land embraced in each patent was described by the same numbers, except as to quantity. Held, that the patent for the one hundred and fourteen acres did not embrace the forty-six acres, and that the holder of the title and possession of the latter could compel the holder of the title under the elder patent to relinquish claim and quiet the title of the junior patentee to the forty-six acres. 2. The patent for the forty-six acre fraction was not void under the provisions of the statutes of 1829 and 1830 (M. & B. 1061-1064), declaring that no quarter-section or fractional quarter-section of land as laid off should be divided, or less than the quarter or fraction taken by entry.
70 Ky. 72Coleman's v. Tully's administrator (1869)
Case 17 — PETITION ORDINARY APPEAL FROM GRANT CIRCUIT COURT. CITED 1 Bibb, 543.
70 Ky. 76Ferguson's administratrix v. Smith (1869)
Case 18 — PETITION EQUITY APPEAL PROM CARTER CIRCUIT COURT. CITED 10 B. Monroe, 259, Smithpeters v. Griffin’s adm’r. 13 B. Monroe, 507, Carey v. Gregory. 1 Dana, 364, Million v. Riley, &c. 2 B. Monroe, 254, Reid v. Heasley. 4 J. J. Marshall, Major v. Deer. 4 Monroe, 400, McConnell v. Bowdry’s heirs, 9 B. Monroe, 188, McCandless & Co. v. Hadden. 3 Metcalfe, 435, Deeten v. Logan. 9 B. Monroe, 264, Southard v. Pope’s ex’r. Civil Code, section 125. CITED 3 Metcalfe, 424, Smith v. Ferguson, &c. 9 Dana, 119, Woodward v. Fitzpatrick. 2 B. Monroe, 72, Cook v. Colyer’s adm’r. 3 Dana, 253, Bright v. Wrangle. 5 Littell, 86, Skinner v. Miller. 2 J. J. Marshall, 472, Secrest v. Turner. 3 J. J. Marshall, 353, Edrington y. Harper. 4 Monroe, 346, Wilkins v. Sears. 4Bibb, 452, Blanchard y. Kenton. 7 Monroe, 480, Toder v. Standeford. Hardin, 6, Reed y. Lansdale.
70 Ky. 81Security Fire Ins. v. Kentucky Marine & Fire Ins. (1869)
Case 19 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. CITED 16 Ohio Rep. 149, Cockerill v. Cincinnati Marine Ins. Co. Arnould on Insurance, 289, 54. 12 'Wheaton’s Rep. 418, 90. 1 Phillips on Insurance, 8, 2, sections 3, 374, 377. 2 Bac. Ab. 637, 553. Park on Insurance, 86, intro. 1. 4 Yeates, 468, Smith v. Odlin. 1Duer on Insurance, 60. 3 B. Monroe, 331, Franklin Insurance v. Hewitt, &c. 1Marshall on Insurance, 21. 1 Blackstone’s Commentaries, 75, and note 13. 2 Vésey, jr. 18, Morgan v. Mather. 12 Louisiana Rep. 233, Courtenay v. Mississippi Ins. Co. 5 Barn. & Adol. 65, Goss v. Lord Nugent. 3 Bingham (N. R.) 298, Stowell v. Robinson. 3 Metcalf’s (Mass.) Rep. 486, Cummings v. Arnold. Acts of Kentucky, 1864, p-. 302. 2Cranch’s Rep. 167, Head & Armory v. Providence Ins. Co. 4 Cowen’s Rep. 645, Perkins v. Washington Insurance. 43 Eliz. Ohy. 12. 6 Eastman, 583. CITED 1 Arnould on Insurance, 229, 237-239, 286, 288, 25, 26. 1 Phillips on Insurance, 3d ed., sections 174, 374, 375, 925. 2 Bosanquet & Puller, New Reports, 269. 3 Massachusetts, 133, Oliver v. Green. 17 Wend. 359, New York Bowery Fire Ins. Co. v. New York Fire Ins. Co. 13 Massachusetts, 61, Lock v. North American Ins. Co. Hid. 267, Bartlett v. Walter. 2 Peters’s South Carolina Bep. 25, Columbia Ins. Co. v. Lawrence. 16 B. Monroe, 242, iEtna Ins. Co. v. Jackson, Owsley & Co. 3 Kent’s Commentaries, 5th edition, 278, 279. 2 Parsons on Maritime Law, 102. 1Parsons on Marine Insurance, 297. 23 Pennsylvania, 250, Philadelphia Ins. Co. v. Washington Ins. Co. Emerigon on Insurance, 201. 9 Indiana, 443, Eagle Ins. Co. v. Lafayette Ins. Co. 1 Story’s Bep. 458, New York Marine Ins. Co. v. Protection Ins. Co. 11 Meeson & Welsby, 311, 312, Baron Park in Sutherland v. Pratt. 3 Adolph & Ellis, 303. 6 Gray, 215, Carver Co. v. Man. Ins. Co. 12 Wheaton, 403, Gen. Int. Ins. Co. v. Buggies. 23 Pennsylvania, 65, Philadelphia Life Ins. Co. v. American Life Ins. Co. 35 New Hampshire, 328. 19 Howard’s S. C. Bep. 322, Commercial Mutual Marine Ins. Co. v. Union Mutual Ins. Co. 28 Indiana, 17, American Horse Ins. Co. v. Patterson. 2 Dutcher’s New Jersey, 268, Hallock v. The Insurance Co. 3 Dutcher, 645, same case. 23 Wend. 18, Lightbody v. The North American Ins. Co. 4 Cowen, 645-666, Perkins v. Washington Ins. Co. 1 Wash. C. O. B. 93, Kohne v. The Insurance Co. of North America. 20 Barbour, 475. 17 Iowa, 276, City of Davenport v. Peoria Insurance Co. 27 New York, 216, Audubon v. Excelsior Ins. Co. 29 Barbour, 312, Whittaker v. The Farmers Union Ins. Co. 3 B. Monroe, 231, Franklin Ins. Co. v. Hewitt, Allison & Co. Angelí on Fire and Life Insurance, section 33. Massachusetts Bevised Statutes, ed. 1836, pp. 322, 323, chap. 37, sec. 18. 8 Pick. 63, New England Ins. Co. v. DeWolf. 1 Pick. 278, McCullough v. Eagle Ins. Co. 10 Pick. 326, Thayer v. Medina Mutual Ins. Co. 6 Gray, 204, Kennebeck Co. v. The Augusta Insurance and Banking Co. 5 Barr, 339, Hamilton v. Lycoming Co. 9 How. South Carolina Bep. 390, Taylor v. The Merchants Fire Ins. Co. 4 Sandford’s Chancery, 408, Carpenter v. Mutual Safety Ins. Co. 1 New Series (10 Old Series) Am. Law Beg. 116, Constant v. Ins. Co. 20 Ohio, 529, Palm v. The Medina Ins. Co. 25 Indiana, 536, New England Ins. Co. v. Bobinson. 31 Alabama, 711; Mobile Ins. Co. v. McMillan. 19 New York, 306, Trustees of Bajstist Church v. Brooklyn Fire Ins. Co.; affirmimg same case in-18 Barbour, 69. Houton Rolling-mill v. Ross’s acLm’r, Ms. Op. Court of Appeals of Kentucky, Fall, 1869. 43 Barbour, 351, Post v. The .¿Etna Ins. Co. 13 Allen, 894, Graves v. Washington Ins. Co. 13 Gray, 365, Blake v. Exchange Mutual Ins. Co. 35 Wend. 379, McMasters v. Winchester Mutual Ins. Co. 35 Wend. 374, Turley v. North American Ins. Co. - 3 Comstock, 133, O’Neil v. Buffalo Ins. Co. 6 Cush. 343, Clark v. New England Ins. Co. Ms. Op. Court of Appeals of Ky., Kenton Ins. Co. v Shea & O’Connell. 5 Gray, 497, Gloucester Co. v. Howard Fire Ins. Co. 56 Pennsylvania, 356, Eureka. 3 Cush. 363, Trull v. Roxbury Mutual Fire Ins. Co. 3 Comstock, 335, Hone v. Mutual Safety Ins. Co. 1 Sandford, 137, same case. Ms. Op. Court of Appeals of Kentucky, Gossam v. Badgett.
70 Ky. 89Todd v. Edwards & Co. (1869)
Case 20 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. CITED Act of January 16, 1864, Myers’s Supplement, section 3, page 354. Edwards on Bills, 601, 616, 632, 452-3, 646-7, 452-3, 445-6. Story on Bills, section 314. 4 Oranch, 153, French’s executrix v. Bank of Columbia. Chitty on Bills, side-page 471. 4 Rand Virginia, 553. CITED 1 Parsons on Bills and Notes, 521, 522, 510, 513, 516. Edwards on Bills, 532, 636. 17 Wendell, 94, Commercial Bank v. Hughes. 9 Barn. & Cress., Sharp v. Bailey. 2 Peters (Cond. Rep.) 64, Erench’s executrix v. Bank of Columbia. 7 Wendell, 158. 2 Littell, 185, Frazier v. Harvie. Act of 1864, Myers’s Supplement, 364.
70 Ky. 95Clay's administratrix v. Clay (1870)
Case 1 — PETITION EQUITY APPEAL PROM HENDERSON CIRCUIT COURT.
70 Ky. 99Jackson v. Commonwealth (1870)
Failing to set up in a public room op the tavern a list op rates fixed by the county court. — Section 14 of chapter 29, Revised Statutes (1 Stanton, 408), provides that “ every tavern-keeper shall, within one month after the rates m'e fixed by the court, obtain from the clerk thereof a fair table of such rates, and set them up in the public room of his tavern,” etc. The indictment in this case was defective because it failed to allege when the rates had been fixed, or that they had been fixed a month before it was found.
70 Ky. 100Roberts v. Roberts (1870)
1. In oases of trust — When the statute of limitations commences to run and when it will not run. — In this case an estate devised to a widow for life, with remainder to children, was disposed of by consent of all parties interested, and the proceeds were deposited with one of the children, to be held subject to the use of the life-tenant, in lieu of the estate so disposed of. The proceeds were so held for many years, and until after the death of the life-tenant, when the devisees in remainder instituted a suit, in which a distribution of the fund was sought. The defendant who received and held the fund as aforesaid pleaded the statute of limitations. Held, that the fund was held in lieu of the estate disposed of, and subject to the life-estate and ultimate rights of the remainder-men; that it was so held notwithstanding the desire of some of the devisees in remainder that he should distribute the fund amongst them during the life of the life-tenant; and that the statute of limitations did not commence to run until the termination of the life-estate. S. The statute runs. — When a person holding a life-estate in property converts the entire estate to his own use, with the effect of defeating the enjoyment of the estate in remainder, he becomes immediately responsible to the remainder-men, who have a right to recover against him the full value of them estate; and the cause of action, which consists in the injury to the estate in remainder, accrues as soon as the wrong has been committed, and from that time therefore limitation runs. (Coffey v. Wilkerson, 1 Metcalfe, 101.) 3. The statute does not eun in oases of express trust. — When the property is sold, whether by the tenant for life or a volunteer under him, with the assent of the remainder-men, in order that the proceeds may be held in lieu of the property for the ultimate benefit of. the owners in remainder, the transaction will constitute an express trust between the holder of the fund and those who will finally be entitled to it; and as in such a case there is no adverse possession of the fund, the trust will not be barred by any length of time. (Hill on Trustees, 263; Lewin on Trusts, 744; 17 B. Monroe, 446.) 4. The statute commences to run when the possession of the trustee becomes adverse. — In case of an express continuing trust the statute of limitations does not begin to run, as against the cestui gue trust and in favor of the trustee, until there has been some open express denial of the right of the former, and what amounts to an adverse possession or assertion of right on the part of the latter. (Hill on Trustees, 264; Bohannon’s heirs v. Sthreshley’s ex’rs, 2 B. Mon. 437.)
70 Ky. 105Commonwealth v. Ewing (1870)
Defective indictment for selling liquor to any “white person” under the age of twenty-one years. — An indictment under the act of Marcii 3, 1860 (Myers’s Supplement, 517), for selling liquor “to any white person under the age of twenty-one yea/rs,” is defective if it does not allege that the minor was a white person. Demurrer of defendant to the indictment in this case was properly sustained by the circuit court.
70 Ky. 106Commonwealth v. Ingraham (1870)
Case 5 — WARRANT OF CITY COURT APPEAL ISOM LEXINGTON CITY OOTKT. CITED Revised Statutes, title “Revenue and Taxation,” 2 Stanton, 243. Act of March 15, 1870, Session Acts, page 104. 18 B. Monroe, 10, City of Louisville v. Hearn. CITED Lexington City Charter, section 16, 1 Session Acts, 1867, page 441. Revised Statutes, section 13, article 2, chapter 83, 2 Stanton, 243. Criminal Code, sections 299, 348. Revised Statutes, section 5, 2 Stanton, 277. 1 Metcalfe, 366, Murphy v. Commonwealth. Act of March 4, 1856, 2 Stanton, 278. 2 B. Monroe, 296, 297, Commonwealth v. Luck.
70 Ky. 108Canaday v. Hopkins (1870)
Case 6 — PETITION EQUITY APPEAL FROM BOURBON CIRCUIT COURT. CITED 18 B. Monroe, Vauglian v. Mills. Civil Code, section 705. 18 B. Monroe, 656, Jones v. Hodman. CITED Revised Statutes, “Idiots,” 2 Stanton, 85, 86.
70 Ky. 113Harris v. Berry (1870)
Case 7 — PETITION EQUITY APPEAL PROM WOODFORD CIRCUIT COURT. CITED 2 Metcalfe, 130, Wren v. Hyne’s administrator. 5 Dana, 424, Birney v. Bichardson. 2 Jarman on Wills, pages 632, 650, 609-650. 1 Yesey, 408, I-Iill v. Chapman. 6 Yesey, 297, Daniell v. Daniell. CITED 2 Bedfield on Wills, chapter 14, § 70, sections 14, 15. 1 Boper on Legacies, page 426. 8 Yesey, Wilmot v. Wilmot. 4 Kent, pages 265, 266. 12 B. Monroe. Hughes v. Hughes. 1 United States Equity Digest, page 374. 2 Desau, 94.
70 Ky. 116Martin v. Mobile & Ohio R. R. (1870)
Case 8 — PETITION EQUITY APPEAL PROM HICKMAN CIRCUIT COURT. CITED 16 Howard, 314, Marshall v. Baltimore and Ohio R. R, Co. 20 Howard, 232, Covington Drawbridge Co. v. Howard. 15 Peters, 512, Bank of Augusta v. Earle: 4 McLean’s Indiana Reports, 544. 2 Howard, 497. Civil Code, sections 221, 244, 245, 246, 247. Session Acts, 1847-8, pages 344, 345. CITED 1 Black’s United States Supreme Court Reports, 295, 297. Angelí & Ames on Corporations, sections 76, 77, 78, 110. Session Acts, 1847-8, page 392. Session Acts, 1851-2, page 641. Session Acts, 1853-4, page 201.
70 Ky. 124Carico v. Commonwealth (1870)
Í. Threats. — Self-dbfense___Erroneous instructions. — The circuit judge instructed the jury in this case that Avhatever deductions the jury might make from the evidence, and however assured the accused may have felt that his life was in immediate and continual danger, nevertheless he had no right to shoot as and when he did unless there avss then immediate danger of an immediate and violent assault on him by deceased. On the facts of this case, which is an episode to that of Phillips v. Commonwealth, 2 Duvall, 328, whieh is still approved and reaffirmed by a majority of the court, the above instruction is held to he erroneous. 2. Assured and continual danger and self-defense. — Speaking of assured and continual danger to life, this court, in the case in 2 Duvall, .defined the principle of self-defense as follows; “Like the sword of Damocles, the threatened danger is continually impending every moment and everywhere. The threatened man may be waylaid or otherwise attacked unawares without the possibility of defense or of escape, and may never, day or night, feel safe, or actually he so, while his enemy liyes, who whenever he may see him or wherever he can find him may be anxious and able to kill him. And does either human or divine law require such prolonged agony and peril; or can the best and most prudent men suieidally forbear to strike for riddance, if they have the courage to defend themselves, in the only way of secure and lasting escape? ” 3. The court further say in this case : “ Now if a man feel sure that his life is in continual danger, and that to take the life of his menacing enemy is his only safe security, does not the rationale of the principle as thus defined allow him to kill that enemy "whenever and wherever he gives him a chance and there is no sign of relenting. But before a jury should acquit they should he well satisfied that the hilling was not the offspring of bad passion, hut solely of a thorough andi well-founded belief that it was necessary for security. 4. Threats communicated to accused by one who died before the triad. — The accused had a right to prove that a man then dead had hut a short time before the homicide told him that deceased had armed himself with a shot-gun to hill him. This was not legal evidence of deceased arming himself to lull accused, but it was competent to prove that the accused had so heard, and may have had a right so to believe; and to that extent and for that purpose it was admissible. (1 Greenleaf, sections 100, 101.)
70 Ky. 131Horne, Semple & Co. v. Mitchell (1870)
1. An attachment was improperly issued when the bond was not TAKEN BY THE CLERK, NOR IN THE MANNER PRESCRIBED 'BY THE Code. — Before issuing an attachment a bond must be executed before the clerk or his legally authorized deputy in his office, as required by section 224 of the Civil Code. 2. As the paper filed as a bond in this case was not taken by the clerk, nor in the manner prescribed, it was unauthorized, and the order for the attachment improperly issued. 3. Defective bond. — The bond in this case, not being executed before the clerk, was not a defective bond, which could be remedied or substituted by a new one, as provided for in section 753 of the Civil Code.
70 Ky. 133Pence v. Dozier (1870)
1. Seduction. — An action by the father for the seduction of his daughter is maintainable either by the common law for loss of service and incidental expenses, or by our statute authorizing him to sue instead of the daughter for seduction. In each action, according to modern law, there is about the sanie margin for the assessment of damages. 3. Seduced daughter a competent witness for her father. — As the daughter had renounced her own right of action, and was anxious to have the action dismissed, there can be no consistent doubt of her competency as a witness for her father. And on principle, whatever may be said in some of the books, her proof of a marriage contract was admissible. Nor was there error in refusing to allow witness to prove that her sisters were of questionable character as to chastity. , 3. A witness should not be compelled to infamize himself. — Thti testimony of a willing witness that he had illicit intercourse with the plaintiff’s daughter, debauched by the defendant, would be entitled to but little if any credence, and the court did not. err in refusing tp compel him to answer such a question to infamize himself.
70 Ky. 135McAfee v. Kentucky University (1870)
Case 13 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. CITED Manuscript Opinion, Cheever v. Wilson & Worcester. United States Supreme Court, February 31, 1870. 3 Session Acts, chapter 1165. CITED 3 Bosanquet & Puller’s Reports, 339, 330, Bruce v. Bruce. 5 Greenleaf, Halloway v. Saco. Act of February 28, 1865, Session Acts, 1865, pages 67, 68. 11 Pickering, 411, 414, 415, Greene v. Greene. Westlake on Private International Law, 45. .Story on Conflict oí Laws, 46, 181. Wallace, jr. 217, 264. Ms. Op. January 11, 1870, Stagg v. Kentucky University. Ms. Op. 1868, Kentucky University v. Woods.
70 Ky. 138English v. Bourn (1870)
Case 13 — PETITION ORDINARY APPEAL PROM OWEN CIRCUIT COURT. CITED 4 Bush, 418, Hamblin v. McCallister. CITED 4 Bush, 418, Hamblin v. McCallister.
70 Ky. 139Tisdale v. Risk (1870)
1. Dower op surviving wipe is barbed, in land por which her husband held a bond por the legal title, by a decretal sale of tlie land and a conveyance of the legal title to the purchaser during his life for the partial satisfaction of the claims of his creditors and the full satisfaction of his vendor’s lien. (Sections 6, 13, article 4, chapter 47, Revised Statutes, 2 Stanton, pages 26, 27.) 2. The decretal sale of the land as aforesaid was not such receipt or disposition of the proceeds by the husband in his life-time as contemplated by the spirit and aim of said statute. But said section 6 allows her only a portion of that fund, and her title can not be extended to the land purchased by the apjiellant’s vendor from the court without the incumbrance of any lien in her favor. 3. Her claim ought therefore to have been asserted against the distributees of that fund, and had it been asserted before distribution the circuit court may not have given the whole to the creditors. 4. Whether she still has available right as against those distributees can not in this case be judicially determined.
70 Ky. 142Edgerton v. Commonwealth (1870)
1. One jointly indicted with others can not be a competent witness FOR OR AGAINST THE OTHERS SO LONG AS THE INDICTMENT against him remains undisposed of. (Adwell y. Commonwealth, 17 B. Monroe, 318; Thompson v. Commonwealth, 1 Metcalfe, 16; 1 Greenleaf, section 363.) 2. Instructions not objected to when offered by the attorney for the commonwealth can not be passed upon by the Court of Appeals. But when the case must be reversed for error in admitting incompetent evidence, and must go back, it is proper for the Court of Appeals to point out errors in instructions, although they were not objected to when offered. 3. Malicious shooting and wounding — Erroneous instruction. — The circuit court erred in an instruction in which it “assumes that the defendant shot and killed Coulter,” when there is no evidence that he was present or had any hand in killing him, or that he ivas in fact killed then. Defendant certainly was not indicted for that offense; and the instruction directs the attention of the jury to the intention with which the shooting was done, and makes their finding depend upon their belief of the intention with which it was done, when it was the province of the jury to determine whether he did the shooting, or confederated and combined with those who did it, and willingly participated in the unlawful act. 4. Golor of military authority is not sufficient to excuse those who participate in shooting citizens.
70 Ky. 147Smith v. Cochran (1870)
Case 16 — ORDER REMOVING AN OFFICER APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Smith’s Commentary on Con. and Stat. Law, section 180. Act of June 3,1865, Myers’s Supplement, 563-4. Constitution of Kentucky, section 10, article 6. Constitution of Kentucky, section 2, article 4. Civil Code, sections 15, 804, 532. Revised Statutes, 1 Stanton, 303. Act of March, 1870, Sessions Acts, chapter 786. Dwarres on Statutes, page 705. Constitution of Kentucky, section 39, article 4. 1 Dana, 449, Bruce v. Fox. 6 B. Monroe, 146, Gorham v. Luckett. 2 Metcalfe, 65, Turner v. Commonwealth^ 2 Institutes, 306, 12 Reports, 130, 131. 2 Scammon, 81, Field v. People. 5 T. R. 375; B. & C. 640; D. & Ry. 393; 1 B. & C. 273. 2 Bouvier, page 121. 4 Wallace, 879, Ex-pwte Garland. 1 Gray, 22, Fisher v. McGirr. 4 Metcalfe, 288, Norris v. Boston. 2 Blackford, 10, Clark v. Ellis. 3 Marshall, 70, Ely v. Thompson. 18 B. Monroe, 481, Rice v. Commonwealth. 13 B. Monroe, 1, Slack v. Lexington & Maysville R. R. Co. . 24 Pickering, 361, Commonwealth v. Kemball. CITED 15 Indiana, 327, Carson v. McPhetridge. 17 Hansard’s Parliamentary Debates, series 3. 3 Metcalfe, 211, Speed & Worthington v. Crawford. 4 Wheat. 397, McCullough v. Maryland. 7 W. & S. 68, Zephon’s case. 3 C. 444, Maxwell’s case. 7 O. 178, Kilpatrick’s case. 9 O. 444, Foust’s case. 1Bland, 463, Dorsey v. Hammond. 1 Bailey’s Chancery, 77. 2 Bailey’s Chancery. 3 Edward’s Chancery, 458, Stewart v. Turner. 1 Vernon’s Chancery Rep. 273, Smith v. Turner. 1 Vernon, 264, Merritt v. Eastwicke. 2 Comyn’s Dig. Bou. Law. Die. “Master in Chancery.” 1 Spence, 237, 355. 1 Campbell’s Lives of Lord Chancellors, 51. 1 Cranch, Marbury v. Madison, 4 Indiana, 309. 1 Thomas’s Coke, book ii, chapter 2. 2 Blackford, 8, Clark v. Ellis. 4 Indiana, 142, Maize v. The State. 4 B. Monroe, 224, Rodman v. Harcourt. Civil Code, sections 467, 804, 624, 405. Debates of Kentucky Con. Convention, page 428. Bacon’s Abridgment, “ Chancery.” Newland’s Chancery, 6. Act of 3 and 4, W. 4. Peake, 182, Green v. Hewitt. Act of February, 1839, 3 Statute Laws, 240.
70 Ky. 154Smith v. Cochran (1870)
1. Usurpation of the office of commissioner of the Louisville Chancery Court. — All appointment to the office of commissioner of the Louisville Chancery Court when there was no vacancy in said office was ultra-judicial and void. 2. Such appointment being a legal nullity, it can not require reversal, or present any obstruction to an action for usurpation of office against such appointee. 4. The Jefferson Court of Common Pleas has jurisdiction of a proceeding for the usurpation of his office, by the commissioner of the Louisville Chancery Court, against one who was improperly appointed to his said office when it was not vacant.
70 Ky. 156Ford v. Teal (1870)
Case 18 — PETITION EQUITY APPEAL PROM OWEN CIRCUIT COURT. CITED Revised Statutes, section 33, chapter 34, 1 Stanton, 383. Revised Statutes, section 1, article 3, chapter 47. 3 Metcalfe, 353, Pell v. Cole. .3 Metcalfe, 503, Johnson v. Ferguson. 3 Metcalfe, 335, Smith, v. Wilson. 1 Duvall, 35, Allen v. Shortridge. 17 B. Monroe, 555, Burgen v. Forsythe. 14 Metcalfe, 143, Hardt v. Courtney, &e. 14 B. Monroe, 360, Moore v. Moore. 14 B. Monroe, 481, Wright v. Arnold.
70 Ky. 158Cantrill v. Risk (1870)
1. Dower of surviving wife is barred by a conveyance executed BY HUSBAND AND WIFE, WHIOII WAS ADJUDGED TO BE WITHIN THE operation of the statute of 1856. — Said statute provides that certain assignments shall inure to the benefit of all the assignor’s creditors. (Revised Statutes, 1 Stanton, 553.) 2. According to said statute of 1856, the grantee in such a conveyance holds the legal title of both the grantor and his wife in trust for his general creditors; and the court say: “We can not see how her title any more than his lapsed by the sale for all those creditors.” 3. Obiter dictum in judgment did not restore right to dower.— Although, the circuit court in decreeing the sale in this case for the benefit of all the creditors pronounced the conveyance void, and the parties to it reinstated where they stood before it was made, yet, there being no authority for any such judgment, that obiter diatum can not have the effect of restoring the title to the grantor and his wife, but should be construed as meaning only that so far as creditors were concerned the attempted preference was a nullity, and the conveyance to that end void. 4. The legal effect of the only judgment rendered on the conveyance was that it was valid and binding as an assignment to all the creditors. A fortiori, it did not restore the right to dower which had been alienated by it.
70 Ky. 161Commonwealth v. Steffee (1870)
Case 20 — ORDINANCE WARRANT APPEAL PROM PRANKLIN CIRCUIT COURT. CITED 5 Bush, 660, Trustees of Falmouth v. Watson. Frankfort City Laws, section 6. Frankfort City Charter, section 24, page 118. Frankfort City Charter, section 18, page 110. CITED Frankfort City Charter, sections 18, 22, 24, 25, 28. 1 Hilliard on Torts, 647. 3 Blackstone^ sideqiage 153. Revised Statutes, 1 Stanton, 221.
70 Ky. 164Starling v. Brown (1870)
1. Interpleader — Each party interpleaded must, without collusion, CLAIM A RIGHT IN THE SUBJECT OR CAUSE OF ACTION.-Id every case of a bill of interpleader the court, in order to prevent its being made the instrument of delay or of collusion with one of the parties, requires that an affidavit of the plaintiff should be made that there is no collusion between him and any of the other parties, and also, if it is a case of money due by him, that he should bring the money into court, or at least should offer to do so by the bill. (Story’s Equity, section 809.) ■ 3. It is essential also in every bill of interpleader that the plaintiff should show that each of the defendants claim a right, and such a right as they may interplead for; for otherwise both of the defendants may demur; the one because the bill shows no claim of right against him, and the other because the bill showing no claim of right in the co-defendant shows no cause of interpleader. (Story’s Equity, sec. 821.)
70 Ky. 167Gulley v. Prather's administrator (1870)
Case 22 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. CITED Revised Statutes, 1 Stanton, 500, section 13. Ms. Op. 1869, Smith v. Haywood. cited Revised Statutes, section 13, chapter 37. Act of 1810, section 1, Revised Statutes. 1 Marshall, 89, Jackson v. Jewries. 1 Dana, 306, Simpson v. Hawkins.
70 Ky. 169Helburn & Co. v. Mofford (1870)
1. A TENANT IS BOUND TO PAY TIIE RENT THOUGH THE PREMISES SHOULD BE DESTROYED BY INEVITABLE CASUALTY.-Tile rOilSOll for this l'llle seems to be that as the tenant has expressly covenanted to pay the rent, and has not by his contract provided against his liability, notwithstanding any accident by inevitable necessity, the law can not interpose. In this case the tenant of one room or apartment in a building containing several rooms is held liable for the rent of his room for his whole term, although the entire building was destroyed by fire seven months before the expiration of his term. 2. Exceptions must be taken at the proper time. — In this action by the assignee of the landlord against the tenant for rent, the plaintiff examined tlie landlord as a witness in his behalf before the jury, and afterward moved the court and obtained leave to amend his petition and make the landlord a co-plaintiff with him. No objections were made to the motion to amend, but the defendant excepted after the amendment was allowed without objection, and no motion was made to exclude from the jury the evidence of the landlord, who was made a co-plaintiff after he had testified before the jury. Held, if there was error in any of said rulings, it must be deemed as waived. 3. If a written lease contains obligations other than for the payment of money or property for the rent of the leased premises, then such writing is not assignable by the landlord so as to vest a right of action in the" assignee alone.
70 Ky. 175Wallenstein v. Selizman & Co. (1870)
Case 24 — PETITION ORDINARY APPEAL PROM CLARK CIRCUIT COURT. CITED 4 Metcalfe, 175, Taylor & Son v. Chamberlain. 6 Bing. 119, Jeffries v. Evans. 7 Mon. 455, Tz'ibble v. Taul. 1 Metcalfe, 114, Graham v. Tilford, &c. CITED Loughborough’s Statutes, 391, Act of January, 1837. 8 B. Mon. 169, Strader, &c. v. Batchelor. 4 Littell, 154. 14 B. Mon, 86, Hill v. Barrett. 6 J. J. Marsh. 655.
70 Ky. 177Moore v. Bath County Court (1870)
1. Power of county court over a fund collected as taxes for PAYING INTEREST ON BONDS EXECUTED TO A RAILROAD COMPANY. — . The Bath County Court bought Moore’s bond, secured by a lien on land, with a fund procured by the collection of taxes levied for paying the interest on bonds executed to the Lexington and Big Sandy Railroad Company. Held, the bond so purchased was a trust fund,' which the holders of the railroad bond coupons might enforce with the lien. 2. But the alleged conversion is no available ground for reclamation of taxes p.aid by tax-payers. 8. The lien-holder and assignor consenting to the enforcement of the lien in favor of the county in this suit, Moore’s objection to the capacity of the county court to buy the bond is unavailing as .a defense to the action on the bond. 4. Certificates of payments of railroad taxes, restitution of which was claimed on the allegation that the taxes were illegally levied, could not be used as an equitable set-off against the action on the bond. ', 5. Reclamation of the taxes voluntarily paid sought, and refused. — The allegations that the taxes were illegally levied, and that there was no legal obligation to pay them, as admitted by the demurrer, are insufficient to entitle the tax-payers to enforced reclamation of the amount voluntarily paid; because even if they might have avoided payment by resistance, they may nevertheless have felt under some obligation, legal or moral, to pay, as the road had been; under faith in payment, partially constructed with the presumed knowledge and consent of the tax-payers.
70 Ky. 179New York Life Ins. v. Clopton (1870)
1. War dobs not dissolve the contract of insurance between technical enemies. — The New York Life Insurance Company of New York, through Garland, Its local agent at Lynchburg, Virginia, hi consideration of $181.50 paid March 13, 1858, and the same amount to be paid the same day in each succeeding year for the term of his natural life, insured the life of Rev. James C. Clopton, a resident of Virginia, for the benefit of his wife and children, in the sum of five thousand dollars. Clopton died in May, 1864, after paying all the premiums payable before March 13, 1862, but not actually paying the premiums for 1862, ’63, ’64. The policy contained a stipulation that in case of failure to pay the premium on the specified day in each year “ the company shall not be liable to the payment of the sum insured, or any part thereof; and this policy shall cease and determine.” The premium for March 13, 1862, after the commencement of the war, was tendered to and refused by said agent. Instead of receiving the premium said agent took a bond for its payment with interest at the end of the war. The wife and children of the assured sued and recovered judgment in the Daviess Circuit Court against the company for the amount of the insurance after deducting the last three unpaid premiums. That judgment is affirmed. _/ 2. The non-payment of the last three premiums did not avoid the policy. — However lawful the condition of avoidance as prescribed in this case may be admitted to be, it is in effect a forfeiture which ought not to be favored. To subject to forfeiture all the premiums paid, as well as the $5,000 for the loss of life, would be harshly and unreasonably penal, for no better cause than the inevitable non-precise payment of anothef installment of premium which the law prevented the company from a right to receive. None of the parties can be presumed to have contemplated such disabling war, or to have intended by the condition of avoidance more than voluntary failure to pay when there was a legal ability to receive the premium. As the company could not lawfully have collected the premium, and may have lost it by insolvency or confiscation had it been paid to Garland in money, the tender as made and the substituted bond as executed may be regarded as equivalent to actual payment, and may have been as beneficial to the company, and by its security even more so. The refusal.to accept the tender for the year 1862 dispensed with a formal repetition for the years 1863-4, and moreover it may be inferred from Garland’s testimony that bonds were given for those years also. Having received all the premiums in Virginia currency and paid it over to the company without objection, Garland’s authority to receive might be presumed by the assured, and the fact that Virginia was the place of payment might have implied that the currency of that state at the time of payment, however it may have been changed and depreciated, would have been received by the company. 3. The residence of the insurance company in New York, and of Garland, its agent, and Clopton, the assured, in Virginia made them TECHNICAL enemies. — The war interdicted all commercial intercourse between such antagonist parties. 4. The war dissolved partnerships and contracts of affreightment. 3. The war dissolved contracts for continuing performance.— Both principle and policy would have dissolved a contract made before the war for continuing performance, such as partnerships or affreightments. Dissolution is the natural and necessary eifect of a change so radical in the status and duties of such parties. In the case of Leathers v. The Commercial Insurance Company, 2 Bush, this court, without special consideration, inadvertently illustrated by “partnerships and insurance” contracts of continuing performance. Affreightment would have been more appropriate than insurance. 6. The war did not avoid a pre-existing valid contract wniOH a SINGLE ACT, SUCH AS THE PAYMENT OF A DEBT, MIGHT PERFORM.— 'In such cases a suspension of remedy during the war was the consistent and only legitimate eifect of the war on such contracts. 7. The reason for dissolution in partnerships and aifreightments is inapplicable to contracts which may be performed by a single act, or by-periodical acts between which there is nothing to perform, and consequently no certainty of performance. 8. In this case the insurance was an executed entirety for the prescribed “term,” and the only performance which could devolve on the underwriter was to pay the stipulated amount of five thousand dollars in the event of the loss insured against, fulfillment of which was not a continuing act, but a single act of a continuing contract. 9. The consideration, though payable in annual installments, was yet an entirety also, and full performance was not as defined of that kind technically styled continuing, and consequently the war did not dissolve the contract on any such ground as that on which it would have dissolved a contract of partnership or affreightment. , 10. While the war revoked Garland’s authority to negotiate policies, it did not revoke his power to receive premiums for policies previously issued. The war did not therefore prevent a legal payment to Garland in Virginia. But if he had received it he could not legally have paid it to the company in New York. (Ward v. Smith, 7 Wallace, 452.)
70 Ky. 191Moore v. Commonwealth (1870)
1. Error in allowing or disallowing a challenge por cause, no cause for reversal. — However the disallowance of a challenge for cause by the defendant may have influenced his course in the use of the peremptory challenges allowed him, it can not be regarded as a refusal to allow a peremptory challenge within the meaning of sec. 384 of the Criminal Code; and regarded as the disallowance of a challenge for cause merely, it can constitute no ground of reversal in the Court of Appeals. 2. Instructions too numerous and prolix. — The court say: “The instructions as given at the instance of the commonwealth seem to us to have been too numerous and prolix for a perspicuous presentation of the law of the case, and several of them couched in language which may have perplexed rather than enlightened the jury.” 3. Erroneous instruction, excluding grounds op selp-depense, given at the instance op the commonwealth. — In this case the third instruction, which is copied in the opinion, virtually excluded from the jury the consideration of any grounds of self-defense, and substantially defined the homicide, if established, to be either murder or voluntary manslaughter, although there was evidence before the jury conducing to prove that at the time of the killing the deceased was in the act of assaulting the defendant. Judgment of the cireuit court reversed and cause remanded for a new tried.
70 Ky. 193Riddle v. Lewis (1870)
Case 28 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. CITED 2 J. J. Marshall, 369, Southard v. Crawford. 5 Dana, 470, Taylor v. Knox, 3 Marshall, 179-80, Griffith v. Depew. 2 Marshall, 339, Breckinridge v. Brooks. 1 Vernon, 316. 2 Littell, 106, Lynch v. Johnson. 1 Marshall, 584. 4 Dana, 450. Powell on Mortgages, 1027. Civil Code, section 420. CITED 12 B. Monroe, 187, Greening v. Pox, &c.
70 Ky. 198Becker v. Crow (1870)
1. Material allegations in a civil action por homicide not in selp-depense — Erroneous instructions as to. — “That every material allegation of plaintiff’s petition not specifically controverted by the answer of the defendant is to be taken as true; and further, the allegations of the petition that defendant Glass killed John Becker not in self-defense is a material allegation.” Held, that as this instruction failed to set forth what material allegations were not specifically controverted, it was properly refused. 2. Whether allegations are material or not arre questions of law to be decided by the court — Whether a fact which is alleged in the petition is material to the issue is a question of law, and whether it has been denied in the answer is also a question of law, both of which are to be determined by the court; and if an instruction on that subject should be given, the court must not only inform the jury what allegations are material, but also whether they have been specifically controverted, and what facts they are to consider as true under the pleading in the action. (Tipton v. Triplett, 1 Metcalfe, 570.) 8. It was necessary to allege that the killing was not in self-defense. — “Not in self-defense” being in the body of the statute (Myers’s Supplement, 681), and not put in by way of proviso, this averment was necessary, and it was necessary to negative it. 4. The court should say what evidence is competent, and what is to be excluded. — If any evidence was detailed which was improper or incompetent under the issue formed, it was a question of law for the court to decide, and define specifically the illegal and incompetent part of the evidence to be excluded. 5. An instruction was properly refused which left it to the jury to determine what part of the evidence was to be excluded from their consideration and what was competent. 6. Confessions — Threats—Instructions as to. — “That the statements of witnesses as to threats and declarations of Becker against Glass, in the absence of all persons except the deceased and the witness so testifying, is the weakest of all evidence known to the law, and should be received and weighed by the jury with great caution.” Held, that the foregoing instruction was properly refused. 7. Confessions — Correct rule as to proof of___“Proof of confessions of a party in the presence of the witness only, or of him and the adverse party, although certainly competent testimony, ought to be weighed with caution, because it is impossible for the party to counteract it by other testimony, because the expressions used are easily misunderstood or perverted, either through mistake or design, and because not the whole conversation but only parts of it are generally detailed by the witness. It is the most dangerous species of testimony held competent by the law, and unless the story told is probable in its nature, or is corroborated by circumstances, very little weight is duo to it.” (Myers v. Baker, &c., Hardin, 544.) 8. To say that the statements of witnesses, without qualification as to their number, the reasonableness of the tale they tell, or corroborating circumstances, is the weakest of all evidence known to the law, is unauthorized by former adjudications, and is inconsistent with the principles and philosophy of evidence. 9. If confessions or threats are established by the concurring testimony of a number of disinterested witnesses, the story they tell probable in its nature, consistent and reasonable, the objections to them cease, and there is left little room to doubt their truth. 10. Verdict on conflicting evidence — How regarded by the Court of Appeals. — “ Although this court might have come to a different conclusion from that arrived at by the jury, still the evidence is to some extent conflicting, and the verdict is not so clearly against the testimony ds to authorize this court to interpose after a new trial has been refused by the circuit court.”
70 Ky. 205Luxon v. Wilgus (1870)
Case 30 — PETITION EQUITY APPEAL PROM PAYETTE CISOTHT COURT. CITED Hill on Trustees, pages 105, 106, 741, 558. CITED 1 Har. & Gr. 11, Ringgold v. Ringgold. Hill on Trustees, 556, side-page 377.
70 Ky. 209Leonhart v. Stalzenberger (1870)
Case 31 — SLANDER—NEW TRIAL APPEAL FROM CAMPBELL CIRCUIT COURT. CITED Ms. Op. 1866. Dinsler v. Fresh and wife. Hilliard on New Trials, 32, 450. Civil Code, section 373. Myers’s Code, pages 489-90. 1 Burrow, 390, Bright v. Enyon. 4 Dana, 81, Hargis v. Price. 7 Dana, 329, Withers v. Butts. cited 1 Hilliard on New Trials, pages 393, 394, 395, 396, 1, 17, 21, 22. 4 Littell, 117, Bell v. Howard. 9 Dana, 136, McFarland’s adm’r v. Clark. 3 Marshall, 109, Miller v. Field. 1 Littell, 39, Eccles v. Shackelford. 2 Metcalfe, 558, Letton, &c. v. Young, &c. 1 B. Monroe, 170, Hart v. Reed. 18 B. Monroe, 791, Thurman v. Virgin and wife. Civil Code, section 369, subsection 7; section 373. Littell’s Selected Cases, 158-9, Samuel v. Bond.
70 Ky. 212Myers v. Mayfield (1870)
1. Distress not authorized when the amount of the rent is to be ascertained by arbitration. — The statute conferring the extraordinary power of proceeding by distress for the recovery of rent does not, in our opinion, contemplate such a proceeding when, by the agreement of the parties, the sum which may be claimed must first be ascertained by the arbitration and award of persons to be selected for the purpose, and where no such adjustment has been made or sought by the plaintiff. 2. Distress is only available where the rent sought to be recovered is due and reserved in money.
70 Ky. 214Hemphill v. Lewis (1870)
Case 33 —PETITION APPEAL PROM JESSAMINE CIRCUIT COURT. CITED Revised Statutes, sec. 31, art. 2, chap. 37, 1 Stanton, 508. • Act of 1811, 1 M. & B. 673. Revised Statutes, sec. 8, chap. 40, 1 Stanton, 552. Civil Code, section 153. 3 Monroe, 224, Leathers v. MeGlasson, 7 J. J. Marshall, 352,. Ready’s heirs v. Stephenson. 3 Metcalfe, 63. 2 Duvall, 888. 16 B. Monroe, 555, Hill v. Golden. CITED Act of May 24, 1861, Myers’s Supplement, 133.
70 Ky. 217Dohoney v. Dohoney (1870)
1. A CONVEYANCE OF LAND IN CONSIDERATION OF FIVE HUNDRED DOLLARS PAID BY THE VENDOR AND HIS OBLIGATION TO MAINTAIN THE GRANTORS DURING THEIR LIVES BEING SET ASIDE AT THE INSTANCE OF CREDITORS OF THE VENDOR, THE VENDEE IS ENTITLED TO RESTITUTION AND A PRIOR LIEN, AS IN CASE OF RESCISSION. — Held, that while the conveyance, if not strictly voluntary, was constructively fraudulent as to the lights of the grantor’s creditors, it did not involve such turpitude on the part of the vendee as to forfeit his right to restitution of the five hundred dollars, or the balance due him, as on rescission of the contract upon equitable principles, and for such balance, if any should be found, he was entitled to a prior lien on the land. 2. A NOTE SIGNED BY THE OBLIGORS ON SUNDAY, BUT NOT SHOWN TO HAVE BEEN DELIVERED ON THAT DAY, IS VALID.-Held, that the illegal acts of the obligors, in signing the note on Sunday, did not affect its validity in the hands of the obligee, who did not himself violate the law. (Ray, &c. v. Catlett & Buck, 12 B. Monroe, 532.)
70 Ky. 222Woodhead v. Foulds (1870)
CASE 35 — PETITION EQUITY APPEAL FROM PENDLETON CIRCUIT COURT. CITED 5 Bush, 400, Sharp’s adm’r v. Proctor’s adm’r. 2 Metcalfe, 235, Smith v. Wilson. 2 Metcalfe, 503, Johnson v. Ferguson. 5 Hill’s New York, 158, Forbay v. Ferguson. 2 Bush, 218, Willis and wife v. Woodward. 7 Bush, Ford v. Teal. 5 Bush, 562, Martin v. Davidson. 1 Duvall, 34, Allen v. Shortridge. Revised Statutes, sec. 22, chap. 24, 1 Stanton, 282. CITED Revised Statutes, sec. 22, chap. 24, 1 Stanton, 282. Webster’s Dictionary, “Evidence.” Tomlin’s Law Dictionary, “Evidence.” 1 Blackstone, 130. 5 Hill’s New York, 155. 1 Duvall, 34, Allen v. Shropshire. 2 Bush, 218, Willis and wife v. Woodward. 2 Metcalfe, 235, Smith v. Wilson. 2 Metcalfe, 503, Johnson v. Ferguson. 5 Bush, 400, Sharp’s adm’r v. Proctor. 2 Bibb, 272, Young v. Craig. 5 Monroe, 41, Hughes v. McEinsey.
70 Ky. 227Blair v. Commonwealth (1870)
Case 36 —INDICTMENT APPEAL PROM PLEMIN0 CIRCUIT COURT. CITED Criminal Code, sections 190, 345. Civil Code, sections 267, 378. Graham & Waterman, page 1085. 1 Archibald’s Practice, page 640. 3 Johnson’s Cases, pages 369, 370, 5 Dana, 398, Smith v. Creason. 3 Dana, 31. 2 Bibb, 167-169. 2 Duvall, 332. 4 J. J. Marshall, 429, CITED 17 B. Monroe, 408, Comely v. Commonwealth. Myers’s Criminal Code, page 654. 3 Monroe, 18, Jane v. Commonwealth.
70 Ky. 231Buffington v. Ulen (1870)
Case 37 — PETITION ORDINARY APPEAL PROM BOO CIRCUIT COURT. CITED 1 Bush, 310, Anthony & Co. v. Wade.
70 Ky. 234Hargis v. Pearce & Son (1870)
Case 38 —APPEAL-BOND APPEAL FROM ROWAN CIRCUIT COURT. CITED 1Bush, 223, Walters V. Patrick. Civil Code, section 753. CITED Civil Code, sections 847-852. 2 Duvall, 77, Adams v. Settles. 3 Bush, 94, Manier v. Lindsay.
70 Ky. 235Louisville, Cincinnati & Lexington Railroad v. Mahony's adm'x (1870)
1. Action by personal representative for killing an employee OF THE RAILROAD COMPANY — STATUTE OF MARCH 10, 1854, (3 S'TAN-TON, 510.) Willful neglect — -Province of the jury. — Whether the facts developed on the trial sustain the charge of willful neglect is the peculiar province of the jury to determine. 3. Proof of ages and number of children of deceased admissible.— The condition of the family of the deceased directly and essentially affected the question of damages. This action was of that peculiar kind in which all attendant circumstances of aggravation which go to characterize the wrong complained of may be given in evidence. (Sedgwick on Measure of Damages, 465.) 3. Probable period of the natural life of deceased. — It was competent to prove the probable period of the natural life of the deceased by reference to a recognized American life-table. 4. Pecuniary’ ability of the defendant may be proven. — -In this as in other cases for the recovery of punitive or exemplary damages it was not improper to allow proof of the pecuniary ability of the defendant. ¡ . CONTRIBUTIVE NE&LI&ENCE — COMPANY NOT EXONERATED BY.-Although the deceased may have acte'd negligently in riding on some one of the cars instead of another deemed less dangerous, or might, notwithstanding the wreck of the train, have effected his escape by the use of ordinary diligence, yet if the disaster resulted from a willful neglect of duty on the part of other agents of the defendant, who controlled the running operations of the train, and it might have been prevented or avoided by them by the use of ordinary prudence and care in the discharge of their duty, the company was not exonerated from responsibility. (Louisville and Nashville Railroad Company v. Yandell, 17 B. Mon. 586; Same v. Sickings, 5 Bush, 1; Same v. Collins, 2 Duvall, 114; Same v. Robinson, 4 Bush, 507; Same v. Pilburn’s administratrix, 6 Bush, 574.) 6. Error not specified in the motion for a new* trial. — An error which was not made a ground for a new trial in the court below is not an available cause of objection to the judgment in the Court of Appeals. (Slater v. Sherman, 5 Bush, 206.)
70 Ky. 240Baker v. Ward (1870)
Case 40 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. CITED 4 Bush, 145, Moorman v. Beauchamp. 5 Bush, 471, Sandford v. Smith. 18 B. Monroe, 125, Todd v. Luckett. Civil Code, sections 125, 153, 416.
70 Ky. 243Kibbey v. Jones (1870)
1. The homestead exemption act does not apply to that part of a debt wmcn was created befoee June 1, 1866. — In this case a note for one hundred dollars was executed before June 1, 1866, and a debt of eighty dollars was created after that date. A new note was then executed for one hundred and eighty dollars as a renewal of the first note, so as to include the debt subsequently created. 2. The note for one hundred dollars, though merged in the note for one hundred and eighty dollars, is nevertheless still as at first a debt undischarged. 3. Property which was subject to the creditor’s remedy when the debt of one hundred dollars was created could not be constitutionally exempted from that liability. 1. The renewal of an obligation to pay is not a payment. — The renewal of a note executed before June, 1866, so as to include with it another debt created after that date, did not operate as a payment of the first note, but only as a renewal of the obligation to pay. The homestead was subject to that part of the aggregate note which was a renewal of the note executed before the homestead exemption act took effect.
70 Ky. 245Thomas v. Arthur (1870)
1. “No will shall he received as evidence until it has been allowed and admitted to record by a county court.” (Revised Statutes, section 29, chapter 106, 2 Stanton, 466.) 2. A testamentary writing is admissible, although not admitted to record, not as a will or contract, but only as an acknowledgment which might imply a liability to some extent. If the unrecorded writing had. said that the testator had borrowed one thousand dollars from his daughter, and therefore bequeathed to her that amount with interest, it would be competent as an acknowledgment of a debt. (Montgomery’s administrator v. Miller, 4 B. Monroe, 471.) 3. Diet and storage — Clothing and nursing. — -The statute requiring an express contract for diet and storage does not apply to clothing or nursing, for which there may be an implied contract. (Revised Statutes, section 1, article 3, chapter 99, 2 Stanton, 410.)
70 Ky. 248City of Covington v. Bryant (1870)
1. In GRADING STREETS THE CORPORATION IS BOUND TO GUARD AGAINST accidents. — When in grading a street a deep cut is made below the sidewalks, it is the duty of the city, by barricades or otherwise, to guard all prudent persons against unnecessary danger. 2. When Powell Street, in the city of Covington, was only partially graded, the city council permitted a citizen for the use of the materials to excavate a portion of it to the depth of eighteen feet. Bryant, a colored man, in passing (going to his residence) fell into that cut and broke his thigh-bone. In this action for that hurtful accident he recovered a verdict and judgment against the city for seven hundred and fifty dollars in the circuit court. That ¡judgment is affirmed. 3. The street, though incomplete, was yet under the jurisdiction of the city, which, permitting the cut, was bound to provide such safeguards as would afford reasonable security to the moving public. There was no such security when Bryant fell into the cut, and therefore, if he was on a proper occasion and in right condition passing that way on so dark a night, and without culpable negligence fell into the cut, the city is legally responsible to him for compensatory damages. 4. But if the accident resulted wholly or partially from his own fault or negligence, he was entitled to nothing.
70 Ky. 250McGlasson v. Bradford (1870)
Case 44 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT.
70 Ky. 253Mullen v. Keetzleb (1870)
An AGENT IS ENTITLED TO COMPENSATION FROM BOTH PARTIES TO AN exchange of real estate in this case. — The agent employed by different owners to sell two parcels of real estate brought about an interview between the owners, who made an exchange — the agent having no agency in the exchange except in bringing about the interview and writing the deeds. Held, that the agent was entitled to the customary compensation from each party. This case differs essentially from the case of Lloyd v. Colston & Moore, 5 Bush, 587. The proof in this case showed that the local custom entitled the agent to all he charged for what he did for each party; to wit, the customary commissions against each party.
70 Ky. 255Reeder v. Bell (1870)
1. A TENANCY NOT SUBJECT TO FORCIBLE ENTRY AND DETAINER. — A party in possession under an agreement to occupy and take care oí the land for six years, with the understanding that he might secure the title by purchase when he should become able, was not a tenant in the sense of the statute providing the summary remedy of forcible entry and detainer against a tenant holding beyond his term. 2. The statement of the tenant in possession, under an agreement to purchase, that he was not holding only as the mere tenant, was not a renunciation of the allegiance of an unqualified tenant to a technical landlord. 3. A disclaimer of the tenancy more than two years before the date of the warrant of forcible detainer will not dispense with notice to quit. The tenant was entitled in this case to six months’ notice to quit or surrender possession. 4. Insufficient notice to surrender possession. — The term expired on the first of April. ' A notice that the landlord would be ready to receive the possession on the first of March, and would expect it then, was no certain notification that the landlord would be ready on the first of April, and would then expect it. The tenant was not therefore certainly notified that she must surrender on the first of April.
70 Ky. 257Carter v. Carpenter (1870)
Case 47 — PETITION EQUITY APPEAL PROM HARRISON CIRCUIT COURT. CITED 2 Bush, 307, Steis v. Robinson. & Co. Civil Code, sections 291, 295, 296. CITED Civil Code, section 240.
70 Ky. 259Cushing v. Cushing (1870)
Advancements in pull op all interest in ancestor’s estate. — “Received, Covington, Kentucky, April 9, 1864, of my father, Doctor Z. Cushing, two thousand dollars, which I freely accept as my full proportion of his estate; and I hereby bind myself, my heirs, executors, administrators, and assigns, never to set up any claim against him or his estate.” The son who signed the above, after the death of his father, sued for a distributive proportion of his estate. The widow and other children alleged that this son had received his full proportion of his father’s estate, which not being denied — Held, that, having received his “full proportion,” the said son was entitled to nothing further from his father’s estate. (Section 17, chapter 80, Revised Statutes.)
70 Ky. 263Burgess v. Green (1870)
Case 49 — PETITION EQUITY APPEAL FROM SCOTT CIRCUIT COURT. CITED 3 Bibb, 349, Wooldridges’ heirs v. Watkins. 3 Bush, 653, Clark v. Constantine. Civil Code, sections 153, 146, 136. CITED 3 A. K. Marshall, 381, Brown v. Hobson. 3 Littell, 115, Floyd’s heirs y. Johnson. Revised Statutes, 1 Stanton, 499. Revised Statutes, 1 Stanton, 333. 3 Bibb, 349, "WooLdridge’s heirs v. Watkins’s ex’r. Coke on Littleton, 113®. Powell on Devisees, 394, 304-6. 7 Dana, 1, Clay v. Craig & Hart. Act of 1810, M. & B.’s Digest, 671. 1 Metcalfe, 58, Thomasson v. Tliomasson. 1 Marshall, 349, Barnes v. Burton. 3 Marshall, 66, Logan’s adm’r v. Troutman. Civil Code, section 153. 3 Littell, 346. 7 J. J. Marshall, 503.
70 Ky. 268Whipps v. Ellis (1870)
Case 50 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. CITED Bankrupt Law of Congress of 1867, section 35. James’s Bankrupt Law, piages 154. 65. CITED Bankrupt Law of Congress of 1867, sections 2, 8, 25. Hilliard on Bankruptcy, 370, 371. Act of March 10, 1856, 1 Stanton, 553.
70 Ky. 273Duker v. Franz (1870)
1. Material . alteration in a note. — Every material alteration in a note made alter its delivery, and without the consent of the payor, renders it void. 2. Alteration in a note to correct a mistake. — The holder of the note has no right to make an alteration to correct a mistake, unless to make the instrument conform to what all the pcm'ties to it agreed or intended it should have been; but this much he can do without destroying the legal efficacy of the writing. (Hervey v. Hervey, 15 Maine, 357; Parsons on Bills and Notes, 569, 570, 571.) 3. In this case the proof showed that the note was dated 1868, when according to the intent of the parties it ought to have been dated 1869, and that it was changed to 1869 by writing 9 over 8. The court below pi'operhj refused to instruct the jury that if the alteration in the date of the note was made after the execution and delivery of the note, without the knowledge or consent of the payor, either by the holder or with his permission, that the same was thereby rendered void, “ though the change was made in order to correct a mistake.” 4. Drunkenness. — The defense of drunkenness is not made out when it appears by the evidence that the defendant was conscious of his condition, and knew what he was doing at the time the note was made.
70 Ky. 276Faris v. Dunn (1870)
Case 52 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. CITED 18 B. Monroe, 784, Kensolving v. Price. 17 B. Monroe, 685, Gault v. Trumbo. 3 Metcalfe, 361, Ford v. Ellingwood. 4 J. J. Marshall, 330, Gudgell v. Duvall. 3 Monroe, 347, Roberts v. Tennel. 1 Metcalfe, 553, Graddy v. Berry. 4 Dana, 353, Park’s heirs v. White’s heirs. 3 Metcalfe, 583, Harrow v. Johnson. 3 Monroe, 170. 3 J. J. Marshall, 33. 4 J. J. Marshall, 570. 4 Bush, 151, Cornellison v. Oornellison. 3 Rawle, 350, Torrs’s estate. 1 Parson’s Sel. Eq. Oas. 367, Mansell’s estate. 4 Bush, 183, Worley v. Tuggle. 3 Dana, 76, Riley v. Wiley. 4 Metcalfe, 59, Ward v. Crotly. Story’s Equity, sections 793, 563, 564, 577, 28. Williams on Real Property, 362. Adams’s Equity, 274, 261, 262. Civil Code, secs. 34, 35, 36. Revised Statutes, section 22, 2 Stanton, 230. CITED Revised Statutes, section 13, 2 Stanton, 229. 1 Vernon, 866. 2 Atk. 71. 2 Atk. 155. 4 East. 577. 7 Dana, 233. 6 J. J. Marsh. 607. cited Act Dec. 16, 1857, amendment to sec. 125 Civil Code. 2 Duvall, 368, Wells v. Boyd. Civil Code, sections 328, 329, 651, 663. 4 Metcalfe, 147, Steadman v. Guthrie.
70 Ky. 290Tucker v. Fogle (1870)
Case 53 — PETITION EQUITY APPEAL PROM MARION CIRCUIT COURT. CITED 1 Bibb, 542, Smallwood v. Woods. 1 Monroe, 103, Trimble v. Webb. 1 B. Monroe, 250, Simpson v. Daniel. 1 Dana, 182, Johnson v. Lewis. 5 B. Monroe, 250, Wright v. Strong. 4 Bush, 538, Yandeveer v. Hodge’s adm’r. 4 Littell, 244, McGhee v. Ellis & Browning. 4 J. J. Marshall, 298, Forsythe, &c. v. Ellis. 6 Monroe, 27, Pepper v. Thornton. 7 Monroe, 207, Head v. McDonald. 3 Bibb, 216. 3 J. J. Marshall, 611. 17 B. Monroe, 366, Ellinger v. Tansy. CITED 16 B. Monroe, 343, Elliott v. Threlkeld. 3 Metcalfe, 203, Keith v. Wilson. 3 Metcalfe, 589, Given, Haynes & Oo. v. Gordon. 2 Metcalfe, 55, Shouse, &c. v. Utterback, &c. 4 Bush, 410, Whitaker v. Garnett. 6 Bush, 637, Beyland v. Sewell and wife.
70 Ky. 295Roberts v. Stowers (1870)
1. A PERSONAL JUDGMENT WITHOUT SERVICE OP PROCESS OR APPEARANCE IN THE ACTION IS TOTALLY VOID. 2. All PROCEEDINGS AND SALES UNDER A VOID JUDGMENT ARE VOID.The purchaser of land under au execution which issued on a void judgment acquired no right by reason of his purchase.
70 Ky. 298Schmitheimer v. Eiseman (1870)
1. A deed made by an infant feme covert can not be avoided by her on the ground of her infancy when, to induce an innocent purchaser to make the purchase, she and her husband made oath before a notary that to the best of their knowledge and information she was then more than twenty-one years of age. 2. Neither infancy nor coverture can excuse parties guilty of fraudulent concealment or misrepresentation,.for neither infants nor femes covert . are privileged to practice frauds upon innocent persons. (8 B. Mon. 543; 14 B. Mon. 513.)
70 Ky. 301Curry's Administrator v. Bryant's administrator (1870)
1. Verification of demands against estates of decedents. — The provision of the Civil Code prohibiting the bringing of ordinary actions against personal representatives without making the required demand is imperative. (Civil Code, section 473.) 2. Judgment debts must be verified. — As a claim evidenced by a judgment, like any other asserted demand, may be unjust, or have been paid, or be subject to set-offs or discounts, no reason is perceived for exempting it from the operation of the statute requiring claimants against decedents’ estates to verify their demands. 3. An action to revive a judgment is no less a suit than any other civil proceeding for the enforcement of a debt. (Civil Code, sec. 437.)
70 Ky. 303Foreman v. Murphy (1870)
3. County court subscriptions oe stock in turnpike roads. — An act of March 4, 1867, entitled “An act to amend the ehm'ter of the Bctrdstown and Bloomfield Turnpike Boad Company,” provides that the presiding judge and a majority of the justices of the peace of Nelson County might, by their concurrent vote, subscribe five hundred dollars a mile to the capital stock of said company, and levy a tax ad valorem on all property in that county subject to taxation for revenue purposes. A subscription of stock and levy of tax to pay the same under said act are upheld and sustained in this case. 3. A subsequent act of March 8, 1867, authorized the like subscription in the same mode, without limitation as to amount, “for stock in any turnpike road that is now or may hereafter be organized in said county.” And by an act of March 9, 1868, all the county courts in the state, except a few specified counties, were authorized to subscribe stock in turnpike roads on the vote of a majority of the voters of the counties respectively. Seld in this case, that the subscription of stock in the road above mentioned was authorized under the act of March 4, 1867, and that the power of the county court to make the subscription under that act was not abridged by the said subsequent acts of March 8, 1867, and March 9, 1868.
70 Ky. 306Shuck v. Shuck (1870)
Case 58 — PETITION FOR DIVORCE APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Revised Statutes, sec. 1, subsec. 9, art. 3, chap. 47, 2 Stanton, 17. cited Civil Code, section 372.
70 Ky. 308McCown v. Macklin's (1870)
1. TO CORRECT ERRORS OF THE CIRCUIT COURT WHICH MIGHT HAVE BEEN GROUNDS FOR A REVERSAL IN THE COURT OF APPEALS, ail action Í01' a modification of the judgment and enjoining it is neither the appropriate nor an available remedy. ■2. A MISPRISION OF THE CLERK CAN NOT BE CORRECTED BY AN ACTION IN equity enjoining and praying for a modification of the judgment. 3. Defenses discovered after the judgment was rendered. — A judgment obtained in an ordinary action can not be annulled or modified by an order in a proceeding in equity, except for a defense arising or discovered since the judgment was rendered. 4 When the alleged matters of defense were substantially within the knowledge of the defendant at the time the judgment was rendered against him, the court properly dismissed his petition in equity for a modification and injunction of the judgment on the ground that such defenses were discovered since the judgment was rendered.
70 Ky. 311Jarret v. Andrews (1870)
1. Beal estate (unproductive) of a ward subjected by her guardian to pay advancements for necessaribs.' — The chancellor may “direct the sale of any of the infant’s real estate, where necessary to the proper maintenance and education of the ward, or for the payment of his debts.” (Section 14, article 2, chapter 48, Revised Statutes, 1 Stanton, 579.) 2. The guardian of his female ward, whose only estate consisted in unproductive lands, while the courts in his county were suspended by the war, made advancements for her sustenance, clothing, and education suitable to one of her estate and condition in society. Held, that her real estate might be subjected and sold to pay proper advancements for the purposes aforesaid. 3. If the guardian has done that which the chancellor would certainly have directed if applied to beforehand, no good reason can be perceived why the guardian should be made to forfeit his claim to an allowance for necessary, proper, and economical disbursements, made for the benefit of his ward, upon the ground merely that he had made them without the previous direction of the chancellor. (Withers, &c. v. Hickman, &c., 6 B. Monroe, 295.) 4. If the ward in this case had had no guardian, her own contracts for the necessaries which were furnished her by her guardian could have been enforced against her. If the guardian had refused to act as such, and as a stranger had paid those from whom she procured these necessaries, he could have recovered from her the reasonable value of such necessaries by being equitably substituted to their rights. (Watson v. Cross, 2 Duvall, 149.) 5. There is no reason why his guardianship should leave the guardian in an attitude more unfavorable than that of a stranger.
70 Ky. 316Rhyms v. Rhyms (1870)
Case 61 —DIVORCE APPEAL PROM HART CIRCUIT COURT. CITED Revised Statutes, section 4, article 3, chapter 47. Civil Code, section 457, and amendments of 1859.
70 Ky. 317Creekmore v. Chitwood (1870)
Contract por sale op brandy, made and sold in violation op the REVENUE LAWS OP CON&RESS, HELD TO BE VOID. — In this action OH a note for two hundred dollars, executed for brandy, the defendants pleaded, in substance and effect, that the consideration of the note was brandy, sold by the plaintiff to one of the defendants, which was made in Tennessee, and smuggled into Kentucky by the plaintiff in violation of the revenue laws of the United States; the brandy not having been inspected, nor had any tax been paid thereon, nor the barrels containing it branded, and sold in violation of the laws of the United States, and that the contract was therefore against public policy, illegal, and void. The judgment of the circuit court sustaining a demurrer to the answer as above is reversed. The case of Hunter v. Cobb, 1 Bush, 2S9, does not conflict with the principle governing this case, which invalidates the contract itself because it involves the commission of a public wrong, and not simply a failure to comply with a revenue regulation relative to the memorial by which it may be expressed, which might be enforced by appropriate penalties without affecting the integrity and binding force of a legitimate transaction.
70 Ky. 320Blimm v. Commonwealth (1870)
1. Special terms op circuit courts, ten days’ notice op, required by statute is directory. — “ When the business requires it, a circuit judge may hold a special term in any county in his district for the trial of chancery, penal, and criminal causes, or either.” “ If the order be made in vacation for a special term, notice thereof shall be posted up at the court-house door ten days before its commencement.” (Section 1 and subsection 2 of section 1, article 12, chapter 27, Revised Statutes, 1 Stanton, 321.) Held, that the prescribed notice of ten days is merely directory. 2. Eight days' notice of special term, held to he sufficient to constitute and authoriz.e a valid special term; and at such term, as to jurisdiction, the circuit judge had all the judicial power which he could have exercised in a criminal case at a regular term of his court. 3. The accused in this case was indicted, tried, and sentenced to the gallows at a special term of the Boone Circuit Court, ordered only a few days after the homicide, and commencing on the eighth day after the order was made in vacation. Held, the court had jurisdiction to order the grand jury, and special juries, try the accused on the indictment found by that grand jury, and sentence him to be hung on the verdict of “ guilty ” by that chosen venire. 4. Drunkenness may reduce the grade of crime from murder to manslaughter. — On this question the court say, according to the case of Smith v. Commonwealth, 1 Duvall, 224, to which the court adheres, drunkenness “may, under peculiar circumstances repelling malice, reduce the grade of the crime from murder to manslaughter.” 5. But this mitigating tendency of intoxication is not allowable when that condition of mind has been produced for the purpose of stimulating a meditated felony, or even when known to excite homicide or other destructive purposes, because such an inebriate — hostis humani generis — evinces express malice. 6. But when, in the absence of any such aggravating circumstances, a responsible being, drunk from accident or mere sensuality, takes human life without rational motive, and which he never would have attempted, but always would have revolted at when sober and self-poised, the principle of the decision in Smith v. Commonwealth allows the jury to consider the abnormal condition of the mind and 'jiassions so superinduced as a circumstance which, while it should not excuse, may tend to repel the implication of malice essential to the crime of murder. 7. Proof that the accused was drunk* was pertinent in this case as a circumstance helping to account for an act otherwise mysteriously inexplicable, and the jury had a right to weigh that fact, and give it its proper effect on the question of malice. 8. Transient insanity, produced by the voluntary act of the accused, would not excuse, but at the utmost would only extenuate, the homicide from murder to manslaughter. 9. Presiding judge should give tiie whole law applicable to all THE PACTS OP THE CASE WHEN ASKED POR INSTRUCTIONS. — See opinion as to the instructions which the circuit judge ought to have given on the facts of this case.
70 Ky. 334Clay v. Spratt & Co. (1870)
Case 64 — PETITION ORDINARY APPEAL FROM .JEFFERSON COURT OF COMMON PLEAS. CITED Revised Statutes, section 5, Myers’s Srqjplement. Story on Bailments, section 509. Story on Agency, secs. 219,192, 239, 248, 253, 255, 217, 258, 259. 1 Metcalfe, 417, Keen v. Collins, &c. 9 Peters, 607-629, Owings v. Hull. 3 Peters, 81, Bell v. Cunningham. 2 Metcalfe, 207, Munford, &c. v. Taylor. 4 Bibb, 271, Carroll v. Earley. 2 Greenleaf’s Evidence, sections 66, 67. 12 Johnson, 300.
70 Ky. 337Farmers Bank v. Long (1870)
Case 65 — PETITION EQUITY APPEAL PROM HENRY CIRCUIT COURT. CITED Revised Statutes, 1 Stanton, 546. 8 Dana, 510, Walker v. Todd. 5 J. J. Marshall, 545, Lyne v. Bank of Kentucky. 1 Metcalfe, 408, Short v. Tinsley.
70 Ky. 342Hodgkins v. Jackson (1870)
Case 66 — PETITION EQUITY APPEAL FROM DAVIESS CIRCUIT COURT. CITED Revised Statutes, section Í, chapter 22. 15 B. Monroe, 443, Smith v. Pah. Ms. Op. June, 1858, Taylor v. Taylor. 3 Marshall, 448. 8 B. Monroe, 442. CITED 14 B. Monroe, 284, Tremain v. Thurman. 17 B. Monroe, 685, Gault, &c. v. Trumbo. 6 B. Monroe, 71, Honore’s ex’r v. Bidwell. 1 Marshall, 363, Fraily v. Langford, &c.
70 Ky. 344Payne v. Able (1870)
Case 67 — PETITION EQUITY APPEAL PROM VAREEN CIRCUIT COURT. CITED 20 New Hampshire, 441, Wiggins v. Shapleigh. 15 New Hampshire, 417, Johnson v. Ball. 10 Metcalf (Mass.) Ward v. Jenkins. 15 New Hampshire, 218, Goodwin v. Stark. 15 New Hampshire, 408, Towle v. Robinson. 11 Shep. 358, Woodward v. Hewett. 28 Maine, 381, Ellis v. Ham. 15 Alabama, 690, Esselman v. Turner and wife. 13 Howard, 150, Buckingham, &c. v. McLean. 7 Gray, 153, Bennett v. Caswell. 1Chandler (Wis.) 60, Stow v. Parks. 1 Denio, 832, Maples v. Burnside. 6 Cush. 362, Green v. Durfee. 3 Texas, 36, Tompkins v. Bennett. 2 Bankrupt Register, 174, Barnes v. Moore. 9 Georgia, 9, Bond v. Baldwin. 3 Bankrupt Register, 189, Perkins v. Gray. 2 Howard (U. S. C.) 209, Chapman v. Forsythe. 1 Curtis, 176, Belten v. Ballentine. 4 Binney, Gardner v. Bond. 6 Massachusetts, 32, Flagg v. Tyler. 2 Sandford (S. O.) 113, Bowery S. Bk. v. Clinton. U. S. Bankrupt Act of 1867, section 11. CITED Bankrupt Act of Congress, 1867, secs. 34, 33, 19, 14. Civil Code, section 335, and Myers’s notes. Story’s Equity, 1307. 3 Met. 558. 2 Dana, 248.
70 Ky. 349Copeland v. Copeland (1870)
Case 68 — PETITION EQUITY APPEAL EROM SIMPSON CIRCUIT COURT. CITED Act of 1850, incorporating Lou. & Nash. R. R. Co., sec. 18. Pierce on American Railroad Law, 127. Angelí & Ames on Corporations, sections 556 to 563. Hilliard on Real Property, 73. 2 Parsons on Contracts, 316. 1 Greenleaf’s Cruise, 39, 40. 1 Ohio State, 350, Johns v. Johns. 1 Rhode Island, 165, Arnold v. Ruggle. 4 Massachusetts, 396, Tippets v. Walker. 9 Johnson, 96-100, Denton, &c. v. Livingston, &c. 9 Yerk, 501, Union Bank v. The State. 2 Younge & Collyer, 268, Bligh v. Brent. 3 Meeson & Welsby, 422, Bradley v. Holdsworth. 17 Massachusetts, 240, How v. Starkweather. 13 Metcalf (Mass.) 421-26, Hutchins v. State Bank. 12 Simons, 162 (35 Eng. Chy.) Duncraft v. Albrecht. 28 English Law and Equity, 507, Watson, &c. v. Spratly. 35 English Law and Equity, 433. CITED 6 Dana, 107-8, Price v. Price’s heirs. 2 Blackstone’s Commentary, 20-22, and 37, 38, 40. 1 Reclfield on Railways, pages 108, 109, 110, note 7, page 109. 4 Bush, 45, Duncan v. Headley. 2 Connecticut Reports, 567, Welles v. Cowles. 3 Bland’s Chancery, 606, 670, Cape Sable Company’s case. 3 Bland’s Chancery, 99, Binney’s case. 4 Watts, 341, Mason’s estate. 3 Bush, 648, Applegate, &c. v. Ernst, &c. 1 Ohio State, 350, Johns v. Johns. Oomyn’s Digest, title “Franchise.” Angelí and Ames on Corporations, secs. 556-560, and note 1. Revised Statutes, chapter 103, section 18. Act chartering Louisville and Nashville Railroad Company, approved March 5, 1850, section 13; and section 3 of amendment to said charter of January 37, 1865; and also sections 14 and 16 of the charter of said company granted by Tennessee, by act approved March 30, 1858.
70 Ky. 353Simpson County Court v. Arnold (1870)
Case 69 — PETITION EQUITY APPEAL PROM SIMPSON CIRCUIT COURT CITED Act of February 2, 1833, Session Acts, 1832-3, pages 269-84. Act of January 30, 1868. 23 Pick. 234. Printed Decisions, 398. 1 Paige, 107. 1 Green (Iowa), 558, Miners Bank of Dubuque v. United States. 7 Eng. 321, 356, State v. Curran. 3 Sand. (Tennessee) 611. 3 Marshall, 202, Parker v. Stephens. 4 Littell, 371, Ewing’s heirs v. King’s heirs. 1 Monroe, 163, Hawkin’s heirs v. King’s heirs. 2 J. J. Marshall, 519, Bell’s heirs v. Barnett. 26 Pennsylvania, 287, Erie & N. E. R. R. v. Oasey. CITED Act of Eeb. 29, 1836, Loughborough’s Digest, p. 292. Revised Statutes, 1 Stanton, 263. 2 Kent, 334, 337, 338.
70 Ky. 355Harman v. Brewster (1870)
Case 70 — PETITION ORDINARY APPEAL PROM CRITTENDEN CIRCUIT COURT. CITED Revised Statutes, article 1, chapter 70, “Occupying Claimants.” Civil Code, sections 53, 55. i Revised Statutes, section 3, article 3, chapter 13, 1 Stanton, 337.
70 Ky. 359Finnell v. Jones's (1870)
1. Power oe Court oe Appeals over its own judgments. — The Court of Appeals can not correct its own judgments of a former term. But it can correct the mistake of its clerk in recording a judgment so as to give an effect different from that authorized by the court. (Scroggin’s adm’r v. Scroggin, 1 J. J. Marshall, 365.) The Court of Appeals “has no power to amend its judgments after the term unless there be something in the record to amend by. And where parties are made by writ of error and summons, it can no more look into the original record for the purpose of amending its judgment as to parities, by seeing who ought to have been parties, than it can amend its judgments of affirmance or reversal by looking into the original record for the merits of the case.” (Stephens v. Wilson, &c., 14 B. Monroe, 88.) 2. Where no appeal was granted by the inferior court, and there is no service of summons nor appearance of the appellee, the Court of Appeals can, after the expiration of the term, look into the case, and upon ascei'taining, the facts make such corrections as are just and proper. “Unless the appeal is granted by the inferior court, or the appellee enters his appearance in the Court of Appeals, he shall bo summoned actually or constructively.” (Civil Code, section 878.) 3. Judgments oe the Court oe Appeals are void in oases where no APPEAL WAS GRANTED BY THE INFERIOR COURT, AND THERE WAS NO APPEARANCE OE THE APPELLEE, AND NO ACTUAL OR CONSTRUCTIVE service on him. — In this case no appeal was granted by the inferior court, and there was no actual or constructive service and no appearance by the appellees; the case was submitted, and judgment appealed from was reversed. At a subsequent term the court held that the appeal was prematurely heard, and so far as the opinion and judgment affected the rights of the appellees they were void. The court further ordered that the appeal will be regarded as still pending, and will be set for trial at the next term; and as the appellees have appeared in the case no summons against them will be necessary.
70 Ky. 363Brandt v. Hyatt (1870)
1. A LANDLORD MAY SUE POR RENT AS POR OTHER DEBTS, AND STILL distrain or attach por the same rent. — “Notwithstanding the landlord’s right of action and remedy for the collection of rent as other debts under the Code, he may still avail himself of his distress warrant, or attachment, for rent upon the particular grounds prescribed by the statute.” 2. Before issuing an attachment for rent the statute makes it the duty of the landlord to make the statement on oath before the justice of the peace and execute bond as prescribed in the statute. (See Revised Statutes, sections 4 and 5, article 2, chapter 56, 2 Stanton, 92, 93.) 3. But it is not made the duty of the justice to deliver the statement on oath or the bond aforesaid to the sheriff, nor to transmit them to the clerk’s office without notification or rule. 4. The mere fact of the absence of the required statement on oath and bond from the files of the court is not sufficient to repel the legal presumption that the officer performed his duty, and acted within the requirements of the law conferring his jurisdiction. 5. Motion to quash return op sheripp, and the bond op the dependant TAKEN AND RETURNED BY HIM, ON THE GROUND THAT THE justice had omitted his duty. — Although this motion involved the assertion of a merely negative proposition — that the statement upon oath and the bond required by the statute were not made and executed before the justice of the peace before he issued the attachment — the issue thus raised was of that peculiar kind in which the party relying upon an alleged omission of a duty should at least* produce such evidence of the fact as in the absence of proof to the contrary would afford ground for presuming that the allegation was true. (1 Greenleaf’s Evidence, sections 78-80; Brown v. Young, 2 B. Monroe, 26.) 9. An attachment for rent will he quashed if issued before the required bond is given. (Huchison v. Ross, 2 Marshall, 349; Drake on Attachments, section 115.)
70 Ky. 367Smith v. Bone (1870)
“During her life or widowhood.” — A husband devised his estate to Ms wife during her life or widowhood, without any devise over. After her subsequent intermarriage, without renouncing the provisions of the will, Ms children brought suit for partition of Ms entire estate among themselves. The only election_ the widow could make was between her interest under the will and her dotal and distributive interest against the will. By holding and enjoying the estate under the will, she renounced all claim to dower and distribution to which she would have been entitled had there been no will, or had she renounced the will; and By electing to marry she elected to renounce not the will, but the estate of her deceased husband. She could not hold as devisee until she chose to marry, and then claim as if she had not so held or married.
70 Ky. 368Stewart v. Barrow (1870)
Case 74 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT.
70 Ky. 372Burbank v. Posey's administrator (1870)
Case 75 — PETITION ORDINARY APPEAL PROM HENDERSON CIRCUIT COURT. CITED Act of Peb. 35, 1854, 3 Session Acts, 1853-4, p. 431. Ms. Opinion, June, 1857, Church v. Graham. Ms. Opinion, 1845, Wright v. Roberts. 6 B. Monroe, 619, Hunter’s adm’r v. Miller’s ex’r. 1 Metcalfe, 79, Murray, &c. v. Carothers. 1 B. Monroe, 304, Trask v. Roberts. 4 Metcalfe, 398, Whitney y. Suddutli. 3 Bush, 585, Cophart v. Dodd, &c. 3 Bush, 581, Yowell y. Dodd, &c. 17 B. Monroe, 489, Taylor, Shelby & Co. v. Williams. 13 B. Monroe, 313, Carson y. Lucas. CITED 8 A. K. Marsh. 185, Bank of Ky. v. Saunders & Wen. 3 Bibb, 397, Daviess v. Meade. 1 Parsons on Notes and Bills, 34, 35. 3 Wendell, 97, Barker v. Mechanics Pire Ins. Co. 9 Johnson, 334-5, Taft v. Brewster, &c. 1 B. Monroe, 301, Trask v. Roberts. 1 Marshall, 405, McBean v. Morrison. 3 Marshall, 359, McCowan v. Riggs. 4 J. J. Marshall, 457, Parks v. President, &c. 3 Bush, 585, Cophart v. Dodd. 3 B. Monroe, 37, Hood’s adm’r, &c. v. Link. 13 B. Monroe, 313, Carson v. Lucas.
70 Ky. 375Bowman v. Wright (1870)
Case 76 — PETITION ORDINARY APPEAL FROM M’CEACIM CIRCUIT COURT. CITED 1 B. Monroe, 101, Eldridge v. Duncan. 1 Dana, 336, Clark v. Schwing. 3 Dana, 160, Letcher’s adm’r v. Yantis. 6 Wendell, 284. Revised Statutes (Limitations) see. 2, art. 3, chap. 63. CITED 18 Johnson, 327, Stafford v. Tates. 1 Dana, 335, Clark v. Soliwing. 1 B. Monroe, 102, Eldridge v. Duncan. 7 B. Monroe, 551, Pilcher v. Banks. Revised Statutes, 2 Stanton, 127.
70 Ky. 379Higgins v. McClure (1870)
Case 77 — PETITION ORDINARY APPEAL PROM GRAVES COMMON PLEAS COURT. CITED Revised Statutes, sec. 12, art. 2, chap. 43, 1 Stanton, 579. 6 Iredell’s Equity, 238, Goodson v. Goodson.
70 Ky. 383Bailey v. Beadles (1870)
Oase 1 — ATTACHMENT— appeal prom graves circuit court. CITED 17 B. Monroe, 542, Taylor v. Smith. 3 Metcalfe, 279, Pool v. Webster. 1 Metcalfe, 471, Worthington v. Cary. 2 Duvall, 488, Anderson v. Sutton. CITED % Metcalfe, 88, Riggs y. Maltby & Co.
70 Ky. 385Reeves v. Trigg (1870)
1. Impressment "without proof of justifying emergency or tender of compensation did not deprive the owner of his right of property. 2. A subsequent sale by the Federal Government of a mare so captured or impressed passed no right that the government did not possess. 8. A sale by the purchaser at such government sale could pass no better title than he himself owned. 4. Statutory bar prevented by removal of the mare from the state. — A mare was taken from the plaintiff, in the court below, in Union County, Kentucky, in August, 1862, by an Indiana captain, who became a purchaser of the mare at a sale made by the Federal Government. In 1869 the plaintiff finding the mare in Shelby County, Kentucky, in possession of a sub-vendee of the captor, brought this action for her recovery. On the issue of the statute Of limitations the court say: , “The jury had a right to infer that a removal of the mare from this state so obstructed the plaintiff’s remedy for restitution as to prevent the statutory bar.” Judgment for the recovery of the mare is affirmed.
70 Ky. 387Stahel v. Commonwealth (1870)
Permitting games op cards in a coppee-house por treats op ■ liquor and cigars is a violation op the statute. — The only witness in this case proved that such games, ostensibly for amusement;.were frequent in thi said house, with the knowledge and sometimes partici- • pation of the accused, and with the “ understanding ” that the loser should “ treat,” which, according to custom, he did. Verdict and judgment for two hundred dollars affirmed. (Marston v. Commonwealth, 18 B. Monroe, 491.)
70 Ky. 389Fullenwider v. McWilliams (1870)
Cases 4 and 5 — PETITIONS ORDINARY APPEALS FROM SHELBY CIRCUIT COURT. CITED 1 Am. Leading Oases, 4th ed., H. & W.’s notes, pp. 211-219. 1 Hilliard on Pacts, 2d ed., pp. 480, 481, 504-509. 1 B. Mon. 359, Yocum v. Polly. 11 B. Mon. 236. 2 Greenleaf on Evidence, pages 430-433. 2 Starkie’s Evidence, pages 911, 912, and notes. 1 Greenleaf on Evidence, page 64, and note. CITED 1 Am. Leading Cases, 209-219, Munn v. Dupont. 5 B. Monroe, 544, Wood v. Weir & Sayre. 1 Metcalfe, 237, Mitchell v. Mattingly. 8 B. Monroe, 51, Petit & Owen v. Mercer. 10 B. Monroe, 20, Oox v. Taylor’s adm’r.
70 Ky. 392Cutsinger v. Commonwealth (1870)
No PERSON CAN LAWFULLY CARRY DEADLY WEAPONS CONCEALED ABOUT his person, even fob a harmless purpose, unless he comes within one of the three exceptions contained in section 2 of the statute. In this case the pistol was sold by one person to another, and the defendant was carrying it for accommodation to deliver to the purchaser. The circuit court properly refused to instruct the jury in effect that if he was carrying the pistol for the purpose of delivering it to the purchaser, and not with the intention of using it as a weapon, they should find him not guilty.
70 Ky. 394Miller v. Edwards (1870)
1. Trust resulting by implication in pavor op the wipe against HER HUSBAND, AND SECURED TO HER AS AGAINST HIS CREDITORS.— To reinvest in a more desirable farm in Shelby County, the wife concurred with her husband in selling her Henry County land, and purchasing the Shelby farm with the proceeds, on the express condition that the title should be secured to her sepwate use. Without her knowledge or consent the legal title to the Shelby farm, for reasons consistent with his integrity, was conveyed to the husband. When some time afterward she discovered the apparent condition of the title, she concurred in the sale of the Shelby farm, and a reinvestment of a portion of the proceeds in a smaller place, to be secured to her as the other was to have been; but without her knowledge or consent the title was again conveyed to the husband, for reasons consistent with his honor. Discovering this error, she agreed to sell the smaller place for fourteen thousand dollars, on the express condition that the notes for twelve thousand dollars of the purchase price should be made payable to him for her separate use, and deposited with a stranger to keep for her. These notes were attached by creditors of her husband. Held, First, that such a contract as that made with her husband before her land was sold is valid and enforceable as between the parties to it. Second, that even without any explicit stipulation an available trust resulted by implication, unaffected by the statute of frauds or of conveyances. Third, that the trust is not affected by the Revised Statutes (sec. 20, chap. 80, 2 Stanton, 230), because the title was conveyed to her husband against her will and in violation of fiducial faith. Fourth, that there is no ground to presume that the husband ever intended to convert the wife’s estate or its proceeds to his Qwn use. As between themselves therefore all that remains is equitably as much hers as ever it was. Fifth, that before they became creditors the attaching creditors had constructive notice of her rights, and a court of equity should not help them to divest her of this fragment of her inheritance. 2. Separate estate oe wipe in furniture purchased with her money. — In this case, with money given to her for her separate use, the wife purchased furniture in her own name, which was recognized by her husband as her own exclusive property. This furniture being attached by the husband’s creditors, held, First, that though ostensibly in the husband’s possession, and therefore technically his property, the furniture was nevertheless and yet is beneficially hers. Second, that no written memorial or registration in such a case is required by law. Third, that though a purchaser from the husband without notice might have been entitled to hold, yet Fourth, that a mere creditor can not prevail against the wife’s clear equity. (McOlanahan v. Beasley, 17 B. Monroe, 111.)
70 Ky. 399Whitehead v. Boorom (1870)
1. Ten per cent, damages on the appirmance op a judgment por money will be awarded by the Court of Appeals when the record shows that an' appeal was granted by the lower court, and that a supersedeas-bond was executed within the time prescribed by the Code. 2. A .JUDGMENT IS NOT SUPERSEDED BY THE EXECUTION OP THE BOND.— An order of supersedeas must be issued by the proper clerk. Reed v. Lander, 5 Bush, 599, is sustained. 3. The object of the supei’sedeas is merely to notify the appellee that the required bond had been executed and filed, and that his judgment was thereby superseded. A A RECORD IS NOT REQUIRED OP THE ISSUAL OP A SUPERSEDEAS. 5. Notice op supersedeas will be presumed. — When no evidence of its non-issual appears in the record, the Court of Appeals is authorized to presume that the appellee had been notified of the supersedeas. 6. Motion to set aside judgment por damages, on the alleged GROUND THAT NO SUPERSEDEAS ISSUED, OVERRULLED. — In this Case the motion was made at the second term after the judgment for damages was rendered by the Court of Appeals; the only evidence that the supersedeas had not issued were certificates of the clerk, the constructive effect of which was “that the clerk had no official knowledge of the issuing or non-issuing of a certificate of supersedeas in this case.” The motion being resisted — on the certificates of the clerk and the record showing that an appeal had been granted in the court below; that a supersedeas had been executed within the prescribed time; that the appellant had filed a petition for a rehearing, and had not even suggested that there was no supersedeas, and had acquiesced in the judgment for damages until one full term of the Court of Appeals had passed — the motion to set aside the judgment for damages is overruled. 7. Time in this case, “though not conclusive against the jurisdiction of the Court of Appeals to correct its judgment for an error appearing on the record, is nevertheless entitled to consideration in connection with other facts and presumptions.” 8. The clerk's certificates “ on such an official question, even if competent, do not prove that he did not issue the formal supersedeas, but only that he does not remember that he did.” This is altogether insufficient to prove dereliction of official duty imposed by a directory statute.
70 Ky. 403Hahn v. Thornberry (1870)
1. Nuisance — When a court of equity will and when it will not abate and restrain nuisanoes — The chancellor will not interfere by injunction when the nuisance sought to be abated or restrained is eventual or contingent, nor where the evidence is conflicting, and the injury to the public or to the individual complaining doubtful. (2 Story’s Equity Jurisprudence, section 924; Earl of Rippon v. Hobart, 1 Cooper’s Selected Oases; Dumesnil v. Dupont, 18 B. Mon. 800.) 3. But where there is such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance, which can not be otherwise prevented-— where the injury is irreparable, or where loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrongful act or erection — in every such case courts of equity will interpose by injunction, in furtherance of justice and the violated rights of the party. (2 Story’s Equity Jurisprudence, sections 925, 926, 927.) 3. To authorize an injunction against the erection or continuance of a nuisance the evidence must be determinate and satisfactory. 4. RrpARrAN owners — Their right to stop the flow of water.— The right of the riparian owner to stop the flow of water upon his own land, and thereby cause it to flow back upon the lands of the proprietor above him, is not a right incident to the ownership of the soil, but an easement which can only be acquired by grant, etc. (2 Washburn on Real Property, page 66.) 5. Natural flow of water obstructed — Dams erected for the purpose OF FORMING ICE-PONDS ARE ABATED AND PERPETUALLY ENJOINED in this case. — The dams abated and perpetually enjoined in this case obstructed the natural flow of the water, and caused it to accumulate upon the lands of adjacent owners, thereby rendering their lands thus inundated almost valueless.
70 Ky. 410Petty v. Roberts (1870)
.Case 10 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. CITED 101 English O. L. R. 836, Bartlett v. Wells. 104 English O. L. R. 272, DeRoo v. Poster. 27 English C. L. R. 230, Hunt v. Marsey. 10 Peters, 58-76, Tucker v. Moreland. 11 Cush. 40, Merriam v. Cunningham. 10 New Hampshire, 184, Baily y. Russell. 26 English Law and Equity, 560, Mawson v. Blane. 11 B. Monroe, 113, Baily v. Bamberger. 7 Cowan, 183, Roof v. Stafford. 1 Bibb, 330, Tandy v. Masterson. 3 Caine’s Reports, 325, Vanwinkle v. Ketchum. 1 Johnson’s Cases, 127, Conrad v. Birdsall. 1 Am. Leading Cases, 258, 259, 4th ed. 1 Parsons on Contracts, pages 867, 368, 1st ed. 5 Bush, 489, Middleton v. Hoge. 1 Story’s Equity, sec. 242. Bingham on Infancy, 29-31. 3 Bush, 186, Williams v. Abrahams. Story on Contracts, secs. 68-72, 63, 61, 62, 60, 69. Tyler on Infancy, 96, and 77, 78, secs. 37, 38, and pp. 80, 81. Civil Code, Myers’s ed., page 407, notes a, i, e, d. CITED 5 Monroe, 353, Phillips v. Green. 5 Bush, 478, Middleton v. Hoge. 33 Conn. 201, Riley v. Mallory.
70 Ky. 420Wilder v. Morris (1870)
Í. Dissolution and winding up of partnership — Duty of partners.— It is as much the business of one partner as another to give his time and attention to winding up the affairs of a firm, unless the one has by contract or otherwise assumed the exclusive duty of doing so. 3. How one partner is made responsible for outstanding debts.— Before one partner can be made responsible for all outstanding debts it would be necessary that a direct allegation should be made of a contract by him to that effect, or the charge should be made accompanied by a statement of facts sufficient to constitute such an assumption distinctly, so as to give the party charged an opportunity to traverse the allegation. 3. One partner in possession of books, etc., of firm is not thereby MADE RESPONSIBLE FOR UNCOLLECTED DEBTS WHEN HE HAS NEGLECTED to use reasonable diligence. — It can not be sufficient to charge one partner with the full amount of uncollected debts due the firm at its dissolution that accident has placed the books, papers, and evidences of debt in his possession, and he has neglected to use • reasonable diligence in collecting the debts of the partnership, while the other partner remains perfectly passive and indifferent to his own interest.
70 Ky. 426Hearn's administrator v. Van Ingen (1870)
Case 12 — PETITION ORDINARY APPEAL PROM SCOTT CIRCUIT COURT. CITED 4 Bibb, 213, Edwards v. Davis.
70 Ky. 428Skilman v. Miller (1870)
Deposit of principal’s funds in bank by asent to his own credit— Without his collusion the principal’s beneficial interest is not thereby divestbd. — The agent in this case sold his principal’s stock, and deposited the proceeds to his own credit in bank without any collusion of the principal. The principal has a beneficial interest in the deposit, which was not divested; and in a controversy between him and an attaching creditor of the agent, the principal is entitled to recover the fund; but it would be otherwise if the agent had rightfully retained the fund for Ms compensation.
70 Ky. 430Roberts v. Commonwealth (1870)
1. Bail may be taken by recognizance entered into before an examining court. (Criminal Code, section 80.) 2. When bail is taken by recognizance by an examining court, what must appear. — The conditions required by section 80 of the Ordinal Code should be set out in the recognizance, or at least in the minutes of the examining court, reciting the execution of the same, so that it could be ascertained therefrom that the bail undertook that the defendant should appear before some court of competent jurisdiction for an examination of the charge, or for the trial thereof. 3. In this case the minutes of the examining court recited only “that the defendant and R. and F., his sureties, were duly recognized in the sum of two hundred dollars, conditioned as the law directs.” This was not sufficient to sustain a judgment by default. 4. No pleadings in actions on forfeited bail-bonds or recognizances ; but, as the undertaking itself is the basis of the action, it must, in connection with the order of forfeiture, present a perfect cause of action.
70 Ky. 432Meguiar v. Rudy (1870)
Case 15 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. cited Civil Code, secs. 108, 14, 400, 401, 106, 575, 576. 1 Bush, 357, Ward v. George. 3 Metcalfe, 460, Pernold v. Speer. 17 B. Monroe, 681, Moore, &c, v. Caruthers. 14 B. Monroe, 647, Pottinger v. Mayfield. CITED Civil Code, sections 106, 108, 109.
70 Ky. 436Garrard v. Garrard (1870)
Case 16 — PETITION EQUITY APPEAL PROM PENDLETON CIRCUIT COURT. CITED 16 B. Mon. 117, 118. 18 B. Mon. 113, 114. Civil Code, sections 468, 470. Revised Statutes, 3 Stanton, 330. CITE.D Civil Code, section 470.
70 Ky. 442Upshaw v. Debow (1870)
Case 17 — PETITION EQUITY APPEAL PROM PULTON CIRCUIT COURT. CITED 15 B. Monroe, 517, Campbell v. Hillman. 3Duvall, 156, Warrin v. Barker & Co. 3 Dana, 374, Williams v. Rogers. cited 1 Marshall, 500, Shackelford v. Handley's ex’r. 4 Howard (Miss.) 435, Parham v. Randolph. 1 McCord, 131, Tunno v. Mood. 8 Paige, 813, Marvin v. Bennett. 5 Binney, 355, 363, Stoddart v. Smith. 9 Johnson, 465, Waters v: Travis. Kent, 6th ed., 475, 576. Sugden on Vendors, side-pages 357, 358, 371, 373. Printed Decisions, 116, Damils v. Pogue.
70 Ky. 448Tipton v. Wright (1870)
1. Petition to be taken as true unless denied by answer. — “When the plaintiff files with the petition his own affidavit, stating that any of the allegations thereof recited in the affidavit are true, and known to be so by the defendant, and that they can not be proved or shown otherwise than by his answer so far as affiant believes, such allegations, unless denied by the answer, shall be taken as true.” (Civil Code, section 439.). 2. The affidavit prescribed by said section 439 of the Civil Code may be made with the same effect in the petition itself, or in an amended petition. 3. Answer can not be riled without entering appearance. — In this case defendant, a non-resident, without service, by counsel filed an answer, sworn to by him in the state of Indiana, controverting some of the allegations of the petition, and asking a dismission of the action and a judgment for his costs; but with the precautionary statement in the answer that it was made without entering his personal appearance in the action, which he distinctly refused to do. Held, that after filing his answer as above stated, the defendant must be regarded as a party before the court, and a personal judgment was authorized against him on such appearance.
70 Ky. 451Lowry v. Spear (1870)
Case 19 — PETITION EQUITY APPEAL FROM WOODFORD CIRCUIT COURT. CITED Littell’s Sel. Cas. 407, Boulware v. Craig, &c. Sedgwick on Damages, page 418. 8 Metcalfe, 474, Wheeler v. Wheeler. 4 Bush, 358, McBee v. Myers, &c. 2 Duvall, 157, Smith v. Conn. 1 Parsons on Contract, 379. 1 Marshall, 424, Graham v. Iiackwith. 2 Story’s Equity, sections 1313, 1314, 1315, 1318. 6 Bingham, 141, Kemble v. Earren. 2 Bos, & Pul. 346, Astley v. Weldon. 17 Wendell, 447, Darlcin v. Williams. CITED 2 Metcalfe, 477, Wheeler v. Wheeler. Adams’s Equity, top-page 286.
70 Ky. 455Spadone v. Reed (1870)
Case 30 — PETITION ORDINARY APPEAL PROM GARRARD CIRCUIT COURT. CITED 34 Howard, 173, Almy v. California. 13 Wheaton, 561-3, Brown v. Maryland. 8 Wallace, 130, Woodruff v. Packham. 5 Howard, 540, 574, License Cases. 1 Duvall, 73, North v. Robinson. CITED 17 B. Monroe, 353, Bull, &c. v. Harrigan, &c. 6 Bush, 97, Gossom v. Badgett. 4 Monroe, 10, Waggener v. Bells. Revised Statutes, 3 Stanton, sec. 8, p. 348. Revised Statutes, 3 Stanton, sec. 13, p. 343. Act of March 9, 1854, 3 Stanton, 373. Act of March, 1856, 3 Stanton, 376.
70 Ky. 458Vinsen v. Lockard (1870)
Case 21 — PETITION ORDOTARY APPEAL FROM GREENUP CIRCUIT COURT. CITED Revised Statutes, Myers’s Supplement, page 693. Parsons on Partnerships, note 1, page 108. 2 Kent’s Commentaries, 241. 2 Marshall, 485, Green v. Greenbank. 5 Bush, 320, Nichols & Co. v. Burton, &e. CITED Act of March 5, 1860, sec. 20, Myers’s Supplement, p. 82. Act of Jan. 2, 1866, Myers’s Supplement, pp. 693, 694. Reeves’s Domestic Relations, page 244. I Parsons on Contracts, page 319. 6 Cranch, 226, Yassee v. Smith. o Hill, 391, Wallace v. Moras. II B. Monroe, 115, Bailey v. Bamberger.
70 Ky. 461Duvall v. Graves (1870)
Case 22 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED 10 B, Monroe, 320, Coleman v. Woolley’s ex’r. 13 B. Monroe, 384, Bell & Terry v. Keller. 16 B. Monroe, 466, Burch v. Breckenridge. 17 B, Monroe, 319, Edwards v. Woolfolk’s adm’r. 11 B. Monroe, 138, Payne v. Payne. 14 B. Monroe, 247, Petty v. Malier. 17 Johnson, 548, M. E. Church v. Jacques. 14 B. Monroe, 145. 17 B. Monroe, 447, 682. 16 Meeson & Welsby, 778. 12 B. Monroe, 371. 12 B. Monroe, 329. 10 Ohio, 37, 42. 4 Littell, 21, Pyle v. Cravens. 1 Fonbl. Equity, 75, N. Z. 1 Am. Leading Cases, 250, 251, Tucker, &c. v. Moreland. 3 Burrows, Zouch v. Parsons. 3 A. K. Marshall, 9, Phillips v. Green. 1 J. J. Marshall, 241, Breckinridge’s heirs v. Ormsby. 8 Wheat, 174, Hunt v. Rousmanier. 1 American Leading Cases, 556, 561. 5 C. B. 895-917, Smart v. Sanders. 1 Parsons on Contracts, page 72. 3 Bibb, 369, Tyler v. Williams. 9 Dana, 491-503, Johnson’s trustee v. Yates’s devisee. 3 J. J. Marshall, 239, Whittaker v. Blair-. 5 B. Monroe, 163-169, Shipp v. Bowman. 7B. Monroe, 198, Jarmin v. Wilkinson. 9 Simons, 524, Ward v. Claxton. 5 Vesey, 517, Lamb v. Milner. 1Mad. 206, Bm parte Bay. 4 Mad. 409, 410, Wills v. Sayers. 1 Metcalfe, 499, Maddox & Oo. v. Allen. 3 Metcalfe, 67, Ooleman v. Walker. 2 Marsh. 445, Trustees of Lexington v. Lindsay. 3 Littell, 182, Thomas v. White, Eloyd & Co. 1 J. J. Marshall, 370, Overstreet v. Bate. 2 Story’s Equity, sections 977, 980. 5 J. J. Marshall, 230, Long v. White. 2Vesey, sr., 180, Peacock v. Monk. 6Cowen, 393. 3 Dana, 299. 3 Harrington, 403. 9 Dana, 217. 1 Salk. 87. 2 Str. 882. 4 Metcalfe, 478. 6 T. B. 368. 2 McCord (S. C.) 252. 5 Peters, 154. 3 J.'J. Marshall, 13. 4 Bibb, 322. 3Atkyns, 459, 238. 3 Monroe, 10. 8 Blackford, 345, 348. 3 Bibb, 304. 9 B. Monroe, 160, 426. 13 B. Monroe, 279. 2 Blackstone, 332. Cro. Eliz. 46. Statute 27th Henry VIH., chap. 10 (M. & B. 443.) Bevised Statutes, “ Conveyances,” sec. 4. Sugden on Powers, 33-37. Chancery Cases, p. 194, Dakins v. Beresford. Daw. Magazine, pages 285-302. Act of 1820, 1 Morehead & Brown, 449. Hill on Trustees, 264, 265, 282. Sanders on Trusts, page 348. CITED Ms. Op. Kentucky Court of Appeals, Dec. 1856, Bryan v. Bohannon, cited 2 Bevised Statutes, 32, note. Tudor’s Leading Cases on Beal Property, citing Whitmarsh v. Bobertson, 1 Coll. 570. 1 Lead. Cas. in Eq. 401, 412-414, American note to Hulme v. Tennant. Fonblanque’s Equity, book 1, chap. 2, sec. 6, note q, p. 104. Tyler on Infancy and Coverture, 47, 51, 66, 133-135, 460-468. Perkins on Conveyancing, section 12. Act of 1820, 1 M. & B.’s Statutory Law, 449. Rawle on Covenants for Title, 407-8, 410-12. Angelí on Limitations, sections, 472, 473, 5th ed. Hill on Trustees, marginal page 504. Civil Code, section 49. 1Greenleaf on Evidence, sec. 389, p. 490, 4th ed. 1Dana, 181, Woodward v. Spiller. 1 Stanton’s Revised Statutes, 177, section 1. 2 Stanton’s Revised Statutes, 28, section 17. 4 Metcalfe, 95, Hanly & Go. v. Downing et al. 3 Hen. and Munf. Reports, 399, Treble v. Archer. 5 Grattan’s Reports, 414,1-Iealy v. Rowan. 3 Burrow’s Reports, 1804, Zouch v. Parsons. 8 A. K. Marshall, 937, Phillips and wife v. Green. 1J. J. Marshall, 241, 242, 252, Breckinridge’s heirs v. Ormsby. 1Marshall, 77, Cannon v. Alsberry. 7 Monroe, 301, Semple v. Morrison. 1 American Leading Cases, 247-251. 8 Wheaton’s Reports, 174, Hunt v. Rousmanier. 1 American Loading Cases (S. C.) 559-561. 1 Duvall, 76, Hutchinson v. James et al. 5 B. Monroe, 113, Griffith’s adm’r v. Griffith. 2 Metcalfe, 521, Toombs, <fcc. v. Stone, &c. 2 Metcalfe, 506-508, Johnson v. Ferguson. 9 B. Monroe, 287, Burgin v. Ohenault. 3 Bush, 486, Stone and wife v. Worts. 1 Story’s Equity Jurisprudence, section 273. 4 Kent’s Commentaries, marginal page 324, 6th ed., and note a. 1 Sugden on Powers, 182, 193, 2d American edition. 2 Bright on Husband and Wife, 56-60. 2Story’s Equity Jurisprudence, sections 1388-1394. 2 Eden’s Reports, 242, 252, Wright v. Lord Cadogan. 1 Ambler’s Reports, 472, Wright v. Englefield. 2 Ambler, 565, Rippon v. Dawding. 1 Ball and Beatty, 49, Power v. Bailey. 3 Johnson’s Chancery Reports, 540, Bradish v. Gibbs. 1 Bro. C. C. 16, Hulme v. Tennant. 3Johnson’s Chancery Reports, 113, and 17 Johns. R. 576-597, M. E. Church v. Jacques. 3J. J. Marshall, 239, 340, Whittaker v. Blair. 9Dana, 491-503, Johnson’s trustee v. Yates’s devisee. 5 B. Monroe, 165, Shipp v. Bowman. 1 Duvall, 246, Dent v. Breckinridge. 7 B. Monroe, 293, Jarman v. Wilkerson. 4 Kent’s Commentaries, 337. 8 Dowl. and Ryl. 626, Boddington v. Abernethy. 2 Sch. and Lef. 456-461, Dillon v. Grace. 1 J. J. Marshall, 439, Hancock v. Ship. 5 J. J. Marshall, 230-233, Long’s adm’r v. White’s adm’rs. 3 Metcalfe, 65, Coleman v. Walker. 3 P. Wms. 309, Wych v. East India Company. 4 Metcalfe, 264, Matson v. Matson. 1 Bush, 145, Gibson v. Belcher. 2 Bush, 231, Lockhart v. Teiser. 27 Henry VIII., Statute of Uses. 11 B. Monroe, 188, Payne v. Payne. 12 B. Monroe, 391, Hart v. Soward. 13 B. Monroe, 452, Cox v. Coleman’s adm’r. 14 B. Monroe, 302, Hart v. Soward. 15 B. Monroe, 625, Butler v. Miller. 14 B. Monroe, 150, 151, Brown v. Alden. 14 B. Monroe, 247, Petty v. Malier. 12 B. Monroe, 829, Johnston and wife v. Jones. 17 B. Monroe, 57, Stuart v. Wilder. 10 B. Monroe, 320, Coleman v. Woolley’s ex’r. 13 B. Monroe, 384, 385, Bell & Terry v. Kellar. 16 B. Monroe, 486, Burch and wife v. Breckinridge. 17 B. Monroe, 378, Edwards v. Woolfolk’s adm’r.
70 Ky. 469Reeves v. Little (1870)
1. Ferries across the Ohio River, from the Kentucky to the opposite shore. — The laws of Kentucky do not grant or secure or protect the right of ferrying across the Ohio River except from the Kentucky to the opposite shore. (Newport v. Taylor’s ex’rs, 16 B. Monroe, 784.) 2. Kentucky ferrymen are not bound to ferry persons or things from the opposite shore to Kentucky. — The laws of Kentucky do not require a ferryman to transport persons or things from Ohio to this state, and for failing or refusing to do so a Kentucky ferryman is not subject to the penalty denounced by section 2 of the act of March 4, 1865. (Myers’s Supplement, 236.)
70 Ky. 471Griffey v. Bryars (1870)
1. A DEDICATION OP LAND TO PUBLIC PURPOSES MAY BE MADE BY PAROL, and be established by parol eyidence. (Trustees of Dover Y. Fox, 9 Ben Monroe, 200; Wickliffe v. City of Lexington, 11 Ben Monroe, 155; McKinney, &c. v. Griggs, &c., 5 Bush, 401.) 2. A PAROL DEDICATION OP POUR ACRES OP LAND ON WHICH TO ERECT A HOUSE OP RELIGIOUS WORSHIP, ETC., IS SUSTAINED IN THIS CASE.— After using the land for two years for the purposes of the dedication, the trustees of the church instituted this action against the donors; alleging the dedication, etc., and that the defendants were asserting claim, they sought the judgment of the court to quiet their title, etc. The circuit court dismissed then petition on demurrer. That judgment is reversed.
70 Ky. 474Young, McDowell & Co. v. Bennett (1870)
1. Papers not part op the record unless identified by bill of exceptions or by order of court. — In this case the clerk copied a paper, which he designates as an amended petition; but it is not identified by bill of exceptions nor by any order of court. 2. The record shows that the amended petition was not allowed to be filed. It remained therefore a private paper in the hands of the party; it never became a part of the records of the court. 3. By lodging a paper without authority of the court among the papers of the case the parties could not make ii a part of the record. 4. Domestic bills. — -A bill of exchange drawn in Louisville, Ky., and made payable in Smithland, By., in 1860, was a domestic bill. 5. Notice of dishonor is indispensable in cases of domestic bills. 6. What a sufficient notice of dishonor.' — -In this action by the holder against an indorser, the indorser was notified by the protest not only that the notary had protested the bill, but that its nonpayment upon presentation and demand was the reason of such . protest. The demand and non-payment are clearly established by the deposition of the notary. Judgment against the indorser is affirmed. 7. While it may have been wholly immaterial whether the bill in this case was protested or not, yet inasmuch as it was done, and the notice of such protest gave the indorser the information of its dishonor, he can not avoid the legal effect of the same by reason of the fact that the protest itself and the notice of the same were superfluous and unnecessary. 8. Mere failure of ‘ the inferior court to act is no cause of appeal.' — In this case the court below failed to dispose of property embraced in assignments of parties to the suit. Reid, that until some action is taken by that court, either disposing of or refusing to dispose' of the same, it is not within the power of the Court of Appeals to take cognizance of the matter.
70 Ky. 480Austin v. Payne (1870)
1. Action in equity may be brought in any county m proceedings ONi A JUSTICE’S JUDGMENT AFTER RETURN OF “NO PROPERTY.”-After a return of “no property found” on an execution issued on a judgment rendered by a justice of the peace, an equitable action may be brought “in the court of any county in which the defendant resides or is summoned for the discovery of any money, chose in action,” etc., and for subjecting same to the satisfaction of the judgment. In this case the equitable action was brought in a circuit court. (Civil Code, section 474.) 2. To subject land to a justice's judgment a copy of the judgment, execution, etc., must be filed in the circuit court clerk’s office of the county, and an execution issued by the circuit clerk, as provided in section 846 of the Civil Code. (Weatherford & Myers, 2 Duvall, 91.)
70 Ky. 482Cartmell v. Allard (1870)
1. Deposit of consignor’s funds in bank by factor in his own name, without directions, makes the factor liable in case of the failure or insolvency of the bank. (Story’s Equity, section 1270; Story’s Agency, section 208.) 2. The acceptance of a draft from the factor by the consignor, which was protested and returned without laches on the part of the , consignor, did not extinguish the pre-existing liability of the factor. (Hager v. Boswell, &c., 4 J. J. Marshall, 62; Story on Bills of Exchange, section 109.) 8. A factor in Memphis sold flour consigned to him from Paducah, Ky., and deposited the proceeds of the same to his own credit in a bank • at Memphis, and forwarded to his consignor a draft from the Memphis bank on a house in New York. The draft was protested for non-payment, and returned to his factor by the consignor, without laches on his part. The consignor’s judgment in the lower court •- against his factor for the amount of the net proceeds of the sales of . . the flour is affirmed.
70 Ky. 486Commonwealth v. Markham (1870)
Case 28 —FINE APPEAL PROM PRANEXIN CIRCUIT COURT. CITED 5 Bush, 660, Trustees of Falmouth v. Watson. 2 Gross’s System of Surgery, page 414. CITED Frankfort City Ordinances, pages 92, 93. Revised Statutes, Myers’s Supplement, 189. Bouvier’s Law Dictionary, “ Tax.”
70 Ky. 489Hays v. Sanderson (1870)
1. A DIVORCE RESTORES THE "WIFE’S RIGHT TO IMMEDIATE POSSESSION OP HER LAND THERETOFORE CONVEYED BY HER HUSBAND ONLY. — The husband’s sale and conveyance of bis wife’s land in fee passed all the title he had, but could pass no more. 3.The husband’s title to the wife’s land, resulting altogether horn the marriage, ceases with the legal dissolution of that union. 3. Divorce dissolves the marital relation, and restores the liberated wife to her exclusive right to her land. 4. The husband’s disposition of her land beyond the period of the divorce is void. 5. Divorce destroys the husband’s potential right to curtesy.
70 Ky. 491Munday v. Taylor (1870)
Case 30 — CONTESTED WILL APPEAL FROM MERGER CIRCUIT COURT, CITED 2 Bush, 616, Harrell v. Harrell. 9 Dana, Williams’s Will. 1 Duvall, 203 5 J. J. Marshall, 93. 9 B. Monroe, 30.
70 Ky. 493Kyle v. Proctor (1870)
1. The surety op a tenant, in liis covenant to return the property in good order, is not liable for damages for the failure of his principal to return the house and lot at the expiration of the term, when possession was not demanded, and no readinesss for possession was expressed by the lessors. 2. It was not the duty op the tenant to leave the house unoccupied at the expiration of his term, without demand or expressed readiness for possession by the landlord. There was therefore no breach of the covenant to return in retaining possession afterward, as the tenant did, with the presumed consent of the landlord. The continued holding by the actual tenant with the tacit consent of the landlord was a presumable revocation, either by an express contract with the tenant without the surety’s co-operation, or by an implied tenancy from year to year beyond the range of his covenant, by which alone the surety was bound.
70 Ky. 496Ewing v. Litsey (1870)
1. Confederate currency — Payment of it within the Federal lines during the late war. — A Confederate soldier, when Bragg’s army withdrew from Kentucky in 1863, remained in Washington County, Ky., within the Federal lines, and without any fraud or constraint of any kind received Confederate money, at the rate of eighty cents on the dollar, from a citizen of that county, in payment of a note he held on him. This action was brought since the war to recover the amount of the note. Reid, “If the payment was not contrary to law and public policy, then his debt is satisfied, and he has no claim ” upon the defendant. “If, upon the other hand, the circulation of Confederate money within the lines of the Federal Government was prohibited, then by the reception of the money he participated in the violation of the law; and, as the contract is fully executed, the courts will not disturb it at the instance of either party.” 3. A Confederate soldier had no right while permitted to remain within the Federal military lines to violate the laws of the Federal Government, nor to disregard its military regulations.
70 Ky. 499Adams Express Co. v. Loeb (1870)
Case 33 — PETITION ORDINARY APPEAL FROM M’CRACKEN CIRCUIT COURT. CITED 3 Duvall, 564, Adams Express Co. v. Nock. 3 Dana, 481, Robertson & Co. v. Kennedy. 3 Metcalfe, 54, Hall.& Co. v. Renfro. 3 Duvall, 333, Bland v. Adams Express Co.
70 Ky. 502Commonwealth v. Jones (1870)
Selling- goods by sample is not peddling, and is not punishable under act op 1856. — Although section 2 of the act of March 18, 1870 (Session Acts, 104), imposes a tax in lieu of the license fees required by the act of 1856, the effect of the entire statute of 1870 is to exempt permanent merchants and their agents from responsibility under the act of 1856, leaving it in force as to itinerant peddlers as contradistinguished from permanent or localized merchants. 'In this case the judgment of the circuit court is affirmed, reversing the judgment of the county judge imposing a fine of one hundred dollars on an agent of non-resident (Cincinnati) merchants, for offering to vend their goods by sample in the state of Kentucky, as for a violation of the act of March 4, 1856 (Revised Statutes, 2 Stanton, 276), he not having obtained a license as a peddler as required by that statute.
70 Ky. 504Atwell's ex'r v. Helm (1870)
1. Will requiring no security or executor. — In such cases the county court may require the executor to give security on its own motion, or on the demand of some person interested in the estate of the testator, (Revised Statutes, section 4, chapter 37,1 Stanton, 498.) 2. Order of county court requiring executor to give security is not final until enforced. 3. Appeal prom county court should be pirst taken to the circuit court in case of removal of executor for failing to give security when required by the county court.
70 Ky. 505Brownfield v. Dyer (1870)
1. Constructive service — Void when defective — Judgment and sale void. — In all proceedings upon constructive service the provisions of the Code regulating the same must be literally followed. 3.Nothing short of a substantial compliance with every prerequisite will give the court jurisdiction of the property sought to be subjected. 3. Orders of warning have taken the place of orders of publication under the old practice. 4. The ream'd, must show upon its face that the provisions of the Code have been substantially complied with, or the judgment must be treated as void and inoperative. (Green’s heirs v. Breckinridge’s heirs, 4 Monroe, 546; Blight’s heirs v. Banks, 6 Monroe, 305.) 5. An order of the clerk warning the defendant to appear and answer on the first day of a term commencing less than sixty days from the date of the order, is not only irregular, but absolutely void. 6. Section 88 of the Civil Code provides that the defendant shall be warned “to appear in the action on the first day of the next term of the court which does not commence within sixty days of the time of making the order.” 7. The fact that the judgment under which the property was sold was not rendered until a term of the court subsequent to that at which the defendant was warned to appear, did not have the effect of imparting vitality to a proceeding originally void. The entire proceeding was ex parte. 8. Tlie court having no jurisdiction because the warning order was void, the judgment and sale of the slaves were void. 9. The purchasers under such void judgment and sale took nothing under their purchases. 10. The bonds executed by the purchasers under such void judgment and sale were founded on no consideration, and the collection of the bonds is enjoined. 11. The defendant can not ratify the judgment and sale of his slaves after they have been freed by amendment to the Federal constitution, when it was not shown that the purchasers had been guilty of any act of bad faith in the transaction which would authorize a court of equity to compel them to pay for property to which they acquired no title whatever, and not even possession.
70 Ky. 509Gatewood v. Bryan (1870)
1. The real estate of the wipe shall be liable por her debts contracted or incurred before marriage, “and for such contracted after marriage on account of necessaries for herself or any member of her family, her husband included, as shall be evidenced by writing signed by her and her husband.” (Revised Statutes, subsection 1, section 1, article 2, chapter 47, 2 Stanton, 8.) 2. The contract must be made by the wipe, for necessaries for which her estate is to be charged, and the credit must be given to Tier. 3. “ One day after date we, or either of us, promise to pay ” . . “ for necessaries furnished for myself and family,” signed by the wife and husband. The words “for myself and family” do not necessarily refer to the wife, but would naturally and more appropriately refer to the husband. 4. The mere acknowledgment in the note that it was given por necessaries is not suppicient to charge the estate of the wife; but in order to make her estate liable the evidence must show that the contract for them was made by the wife, and the credit therefor given to her. 5. The general estate only op the wife is made liable for her contracts, and for necessaries, etc., as provided by said statute. (Subsection 1, section 1, article 2, chapter 47, Revised Statutes, 2 Stanton, 8.) 6. The separate estate op the wipe is not liable, and can not be SUBJECTED POR HER DEBTS, NOT EVEN POR NECESSARIES.' — Under section 17, article 4, chapter 47, Revised Statutes (2 Stanton, 28), the wife can not alienate her separate estate, with or without the consent of any husband she might have; 7. Except, ip it were a gipt, she might alienate it with the consent of the donor; 8. And ip it were not a gift, then it could only be sold or incumbered for reinvestment, and consequently, if separate estate, the land could not be subjected to her debt.
70 Ky. 513Pelly v. Bowyer (1870)
I. Joint judgment on a several demand is erroneous. — Distributees CAN NOT SUE JOINTLY AND RECOVER A JOINT JUDGMENT against the administrator for an alleged balance of their several shares of the amount found due to them by settlement. 3. Unless the objection por the misjoinder is waived there is no authority for uniting as co-plaintiffs several parties having separate and independent rights of action against the same defendant, or for a joint recovery thereon.
70 Ky. 515Caldwell v. Caldwell (1870)
1. Devise to one in trust for another — Trust may be established and enforced on oral testimony. — A devise of three hundred acres of land by testator to five of his children, on a latent trust that if his other son (James) should ever return from the Confederate army (where he was at the time the will was made), and be capable of holding the title, they should convey it to him. According to satisfactory oral testimony they understood and tacitly agreed to fulfill the trust. 2. Two of the trustees conveyed to James on his return, and in this' suit by him against the other three the circuit court decreed a release to James of their title. That decree is affirmed. Implied trusts being excepted from the statute of frauds and perjuries, if the facts establish such a trust, no written memorial of it was necessary for enforcing it. Nor was the oral testimony in this case incompetent on the alleged ground that it contradicted the will. 3. Extraneous testimony is incompetent to supply an unintentional OMISSION, OR TO CONTRADICT AN EXPRESSED INTENTION IN A WILL. But the facts established by extrinsic evidence in this case have no such aim or effect. They are consistent with the testator’s intention, and with the concession that the will is just what he intended it to be, and they supply nothing which he intentionally omitted. 4. The competency of oral testimony for establishing and enforcing such trusts as that claimed in this case is prescriptively, recognized by undeviating authorities. (See Drakeford v. Weeks, 8 Atkins, 539; Barrow v. Greenhough, 3 Yesey, 152; Strickland v. Aldridge, 9 Yesey, 519; Maislar v. Gillespie, 11 Yesey, 639; 2 Powell On Devises, 639.)
70 Ky. 519McCormack v. Clarkson (1870)
Case 40 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT.
70 Ky. 520Whitney v. Whitney (1870)
Case 41 — PETITION FOR DIVORCE APPEAL FROM ALLEN CIRCUIT COURT. CITED 9 Dana, 52, Finley v. Finley. 1 Duvall, 196, Lee v. Lee. 4 Dana, 308, Boggess v. Boggess. 4 Bouvier’s Institutes, page 480. 4 Bush, 436, Cravens v. Cravens. 1 Bush, 15, McBride v. McBride. 4 Bush, 684, Shroek v. Sliroek. CITED 4 Littell, 252, 253, Civil Code, section 161, and notes. 1 Bush, 15, McBride v. McBride. Revised Statutes, 1 Stanton, 292, section 32. 8 B. Monroe, 518. 2 Metcalfe, 414. Revised Statutes, 2 Stanton, 20, section 6, chapter 47. • Ms. Opinion, September, 1858, Woodward v. Woodward.
70 Ky. 523Clark v. McKenzie (1870)
1. The DUTIES OP the board to examine poll-books in the election op county oppicers are merely mechanical or mathematical. They may possibly judge as to whether or not the returns of the election are in proper form and legally attested'; but after that they must compute the votes cast for the several candidates, and issue certificates of election in accordance with the result. 2. Such duties are. purely ministerial, and the officers conqposing the board may be compelled by mandamus to perform them. 3. The person receiving the highest number of votes is entitled to the certificate of election. 4. A certificate of election can not be awarded by a contesting board. 5. The certificate is the evidence of the election of the person holding it to the office claimed. 6. The circuit court has power to issue a mandamus against the OPPICERS COMPOSING 'HIE BOARD TO EXAMINE TUB POLL-BOOKS.As the certificate can not rightfully be withheld from the person receiving the highest number of votes, and as the law provides no other remedy by which it can be obtained, the circuit court must have power in all cases in which it is improperly refused to reach the officers composing the delinquent board by writ of mandamus. (Batman v. Megowan, 1 Metcalfe, 540.) 7. Until ministerial officers have performed the exact duty imposed upon them by law they must be considered as in default. 8. The fact that the board in this case had issued a certificate to a party who had not received the highest number of votes is not a sufficient reason why the officers composing the board should not be compelled by mandamus. 9. Unauthorized rejection op part op the poll-book by the examining board. — -In this case the poll-boolc furnished by the clerk would not contain all the names of the persons offering to vote, in consequence of which fact the clerk prepared a sheet upon which thirty-four votes were recorded. Upon this sheet the votes of the four officers of the election were entered. The certificate prepared by the judges in conformity with law included said thirty-four votes, and though this extra but necessary sheet was not attached nor fastened to the original poll-book, yet it was placed inside the same, and sealed and delivered to the sheriff, and by him delivered to the county court clerk in the exact condition in which he received it. The clerk’s name was not signed at the foot of the said sheet. Held, that the board of examiners had no right to reject the thirty-four votes. 10. The statute does not require the leaves of the poll-book to be attached the one to the other. 11. The statute requires the clerk to sign his name “ at the foot of every page of the poll-book, as the election progresses, so that the same may be identified.” This is directory to the clerk. 12. The signature of the clerk at the foot of each page of the poll-book is legal evidence of its identity. 13. The absence of the clerk’s signature will not of itself be sufficient to authorize the rejection of a page of the poll-book, the authenticity of which is established by legal and competent evidence. 14. The board oe examiners nAD no right to pass upon the legality of the votes received, but was bound to count all votes certified to them by the officers of the election, and issue certificates in accordance with the result. 15. A CONTESTING BOARD CAN PASS UPON THE LEGALITY Of the Votes, and reject such as were not legal. 16. The examining hoard having gone out of office against whom these proceedings were instituted, the mandamus when issued will operate ■ upon their successors — such persons as compose the board at that time. (Maddox and others v. Graham & Knox, 2 Metcalfe, 71; City of Louisville v. Kean, 18 B. Monroe, 9; Lindsey v. The Auditor, 3 Bush, 233.) 17. The circuit court is directed to issue the mandamus in this case, in conformity with the prayer of the appellant and in the order, to fix the day upon which the examining board shall assemble, in order that the unsuccessful party, if he desires to do so, may contest the election, and have an opportunity of giving the prescribed notice.
70 Ky. 532Richmond & Lexington Turnpike Road Co. v. Rogers (1870)
1. An action of assumpsit for use and occupation of land can not be maintained when the relation of landlord and tenant has never existed. 2. Unless the relationship of landlord and tenant existed at some period between the parties there can be no implied promise to pay rent, and without the existence of such- a promise, express or implied, an action at law can not be maintained and rent recovered therein for the use and occupation of the land. 3. Yerbal contract to sell land — Rescission—Mesne profits. — If there was a verbal contract of sale, and the vendee, being put into possession, has not acquired a perfect title to the premises by limitation, the vendor may avoid such contract, and compel a rescission upon equitable terms. 4. If the vendee holds under an oral contract of purchase, and by refusing to comply with its conditions has forfeited his equitable rights growing out of the same, the vendor may maintain an action to recover the possession, and in that or a subsequent action may recover for mesne profits. 5. But if the vendee did enter as a purchaser, whether under a written or verbal contract, his refusal to comply with the conditions or terms of the purchase can not have the legal effect of converting his holding as purchaser into a tenancy. When a man holds and cultivates land as a purchaser, he holds and cultivates as his own, and not as the land of his vendor. 6. Causes of action under the Civil Code. — -The Civil Code makes no change in the law which determines what facts constitute a cause of action. (Hill, &c. v. Barret, 14 B. Monroe, 85.) 7. Forms have been abolished by the Civil Code ; but the substance of the common law rules of legal procedure remains, except where they conflict with the spirit of our statutory regulations upon the subject of pleadings and practice.
70 Ky. 536Wilson v. Commonwealth ex rel. Klette (1870)
1. An ACT -SUBJECTING THE OFFICERS OF A TURNPIKE ROAD TO A FINE, of not less than five nor more than ten dollars for each offense, for passing or causing to be passed through any of the toll-gates upon said road without pay any cattle or teams, is held to be valid. It did not appear in this case that the act operated to impair any vested right to the free use of the road by contract or otherwise. 2. “The proceedings in penal actions are regulated by the Code of Practice in civil cases.” (Criminal Code, section 8.) 3. The pleadings may be oral “ where the matter in controversy does not exceed fifty dollars.” (Civil Code, section 827.) 4. When the whole amount of the fines claimed did not exceed fifty dollars, the defendant was not required to file an answer controverting the charges against him, in' the circuit court, on an appeal from a justice of the peace; and the court was not authorized to render judgment against him without proof, upon an implied confession of those charges, by his failure to file a sufficient answer. (Civil Code,-section 827.)
70 Ky. 539Savings Institution v. Chinn's administrator (1870)
1. To authorize A levy the sheriff must have in his hands an execution in full force and effect. 2. Replevin after return day op the execution. — Having levied an execution while it was alive, the sheriff after the return day thereof might sell the property, or having actual or constructive possession of the property so levied on, he might take from the execution defendant a bond, with surety, replevying the execution. 3. In all such cases the power of the sheriff to take either a sale or replevin-bond grows out of his levy, and in nowise depends upon the then status of the execution under which the levy was made. 4. Attorney’s authority over his client’s claims. — An attorney at law employed to collect a debt has no authority to release the sureties upon his client’s claim. 5. “The sheriff will return this fi.fa., and the clerk will immediately issue another execution, which the sheriff is directed to proceed to collect,” signed by the attorney of the plaintiff. Held, that the natural and legitimate inference to be drawn from this order, when considered in connection with the facts shown by the writ returned that property had been levied on and remained in the sheriff’s hands unsold, was that the plaintiff desired a writ of venditioni exponas, commanding the sale of such property. If the clerk misunderstood the indorsement of the attorney, and by reason of this misunderstanding issued an execution at fi.fa., and thereby committed the plaintiffs to an abandonment of their levy, the court say: “We see no reason why this mistake of the officer should so operate as to release the surety in the replevin-bond ” (on which the execution issued), “in the absence of all proof that he sustained damages thereby.”
70 Ky. 545Cofer v. Miller (1870)
1. Commissioner's sales op land op inpants must be made in pursuance of notice. 3. The notice op the sale must be in pursuance of the power to sell. 3. The judgment directing or authorizing the sale must be pursued. — In this case the commissioner was ordered to sell the land of the infants on credits of six, twelve, and eighteen months. The commissioner advertised the sale as prescribed by the judgment. On the written request of the guardians of the infants the commissioner sold the land on credits of one, two, and three years. The purchaser executed bonds accordingly; and after the sale had been confirmed by the court at the same term, he appeared, and on grounds as above filed moved the court to set aside the sale and cancel his bonds. The judgment of the circuit court, overruling the motion of the purchaser, on his appeal, is reversed, with instructions to the circuit court to set aside the sale and cancel the purchaser’s bonds.
70 Ky. 548Smith v. Cochran (1870)
1. Mandate of the Court of Appeals enforced by rule against THE CHANCELLOR of the Louisville Chanoery Court___After the Court of Appeals had declared void an order of the chancellor of the Louisville Chancery Court removing the commissioner of said court, and after the said commissioner had been restored to his office, the chancellor, against the protest of said commissioner, made an order referring a suit for the settlement of a decedent’s estate to a special commission®’, before whom the creditors were required to prove their claims. The commissioner sued out a rule in the Court of Appeals against the chancellor to compel the execution of the mandate of the Court of Appeals by the reference of said suit to said commissioner, in compliance with said mandate. On hearing the rule, the Court of Appeals by a peremptory order directed the chancellor to set aside the order referring the case to the special commissioner. 3. The chancellor of the Louisville Chancery Cowrt has no authority to refer the settlement of estates of deceased persons to a special commissioner against the objection of the commissioner of said court. Section 804 of the Civil Code controls section 467 in so far as the latter applies to the Louisville Chancery Court. 3. The second section of “ an act to require master commissioners to take an oath for the faithful performance of their duties,” approved March 5, 1867, does not apply to the commissioner of the Louisville Chancery Court. (1 Session Acts, 1867, page 64.) 4. Orders of reference to a commissioner are ministerial acts of the court. — As the Civil Code imperatively requires the order of reference to be made in all cases for the settlement of estates of deceased persons, such orders are ministerial and not judicial acts. 5. The act of the chancellor of the Louisville Chancery Court in appointing the special commissioner in this case being substantially a refusal to execute a mandate of this court, the proceeding against him by rule is proper.
70 Ky. 563Thompson v. Wharton (1870)
1. Fraud or oppression must be established by the dependant. — To sustain the defense — that the execution of the note sued on was procured by fraud or oppression — the onus was upon the defendants to establish the fraud or oppression alleged by them. 2. Procuring a pardon. — No action will lie to recover a sum of money for endeavoring to procure a pardon. 3. Sueh agreements tend to obstruct a correct administration of government, and are calculated to induce persons to use their influence in such manner as to defeat public justice. (Comyn on Contracts, 261; McGill’s adm’r v. Burnett, 7 J. J. Marshall, 640.) 4. These reasons apply and should control' in all cases in which the party whose pardon or release is sought to be obtained has been convicted of crime by a legally constituted tribunal having the constitutional right to try and punish the offender. 5. But othenoise, where an attorney undertook by the use of his personal influence with the military commander to save from impending danger of threatened execution, or unauthorized and illegal imprisonment. a prisoner who had been convicted by a military court which was unauthorized by law, “ such an act can not be regarded as an agreement to obstruct the proper administration of justice, nor to defeat the ends of public justice."
70 Ky. 568Foulks v. Rhea (1870)
1. Absence prom the state seven years — Presumption op death. — • “ If any person who shall have resided in this state go from and do . not return to this state for seven successive years, he shall be presumed to be dead, in every case wherein his death shall come in 1 question, unless proof be made that he was alive within that time.” (Section 32, chapter 35, Revised Statutes.) 2. Dower is recovered in this case, the husband having left and l remained absent prom this state por seven years, without any proof that he was alive within that time. 3. This mere presumption of the death of the husband entitles his presumed widow to dower in land which had been regularly and legally conveyed by him without her concurrence during their coverture.
70 Ky. 571Penny v. Pindell (1870)
1. Provisions of the charter must be strtctly pursued in condemning LANDS FOR THE USE OF A RAILROAD COMPANY. That the provisions of the charter have been strictly pursued can only be shown by the record itself if it be in existence. 2. Lost records —A proper foundation must be laid for the introduction OF parol proof of the contents of lost records. . Tn this case it was claimed by the vendee of the railroad company that the writ of ad quod damnum, the finding of the jury, and the whole proceedings for the condemnation of the land by the company had been lost, except the judgment of the circuit court approving and confirming the inquest. Held, That all the proceedings have been conducted in conformity with the company’s charter is a presumption which might be properly indulged in favor of and to sustain judgments of courts of competent jurisdiction not under review by this court upon appeal. But, coming into a suit collaterally in support of a link in a chain of title, in cases where parts of the records or files of the suit have been lost or destroyed, yet that it was lost or destroyed should clearly appear to the court, before admitting parol or secondary evidence of what the record contained.
70 Ky. 576Bonta v. Mercer County Court (1870)
Case 51 — PETITION ORDINARY appeal prom mercer circuit court. CITED Revised Statutes, section 6, article 3, chapter 36. Act of February 9, 1854, 1 Stanton, 301. 3 J. J. Marshall, 535, Sneed’s executor v. White. Myers’s Supplement, 126. 7 J. J. Marshall, 167. 9 Dana, 184. 15 B. Monroe, 460. 3 Washington O. O. 70. 6 Ham. 17. 2 Watts, 45. 5 Green, 130. 5 New Hampshire, 99. Hardin, 320. 5 Monroe, 584. 7 Johnson’s Oh. 332. CITED 5 Bush, 438, Commonwealth for, &c. v. Gabbert’s adm’r, &c. Revised Statutes, Myers’s Supplement, 126-7. Civil Code, sections 728, 729, 730. Revised Statutes, 2 Stanton, 396. Revised Statutes, article 2, chapter 26, 1 Stanton, 298-9. Revised Statutes, 262, sections 15, 16. 9 Dana, 184.
70 Ky. 582Ruble v. Norman (1870)
1. A surety is discharged by anything which operates as a novation. (2 Parsons on Contracts, 18.) 2. If property of value more than sufficient to pay the debt be delivered to the creditor in discharge thereof, and he afterward permits the principal debtor to sell the property and retain the price, the surety will be discharged; for the creditor thereby contracts a new debt with his principal debtor to which the surety is no party, and he can not hold the surety bound for the former debt, because it had been satisfied. 3. The principal debtor in-this case delivered hogs to the creditor more than sufficient to pay the debt in payment thereof, and afterward, without the consent of the surety, he permitted the principal debtor to sell the hogs and retain a portion of the price, thereby leaving a part of the debt unsatisfied. The surety was thereby discharged from liability.
70 Ky. 585Place v. Rhem (1870)
1. As to subsequent creditors a conveyance is not fraudulent merely because it was voluntary. (Revised Statutes, section 2, chapter 40, 1 Stanton, 546.) 2. The validity of a voluntary conveyance depends upon the intention with Which it was executed. 3. A house and lot was conveyed to the wife in consideration of six thousand dollars paid, and two notes of the husband, for two thousand dollars each, payable in one and two years after the date of the conveyance, and secured by a lien retained therein. The first payment was made with money he had long before given to his wife, and placed under her separate control, etc. The two notes were paid by the husband. The conveyance was not attacked by any prior creditors, and is held not to have been void or fraudulent as to subsequent creditors. The court say: “The evidence concerning his liabilities at that time is not such as in our opinion should warrant the belief that he procured the sale and conveyance to be made to his wife with intent to defraud his then existing or subsequent creditors.”
70 Ky. 590Huber v. Armstrong's widow (1870)
1. The purchaser’s failure to object to the confirmation of the SALE OF THE LAND WAS A WATVER OF HIS RIGHT TO RESIST THE PAYMENT of the purchase price on the ground that suit had been brought ' against him to recover a part of the land, process therein having been served on Mm before the commissioner’s report of sale was confirmed. 3.Title papers on file in the suit in which the sale was decreed operate as notioe to tile purchaser of the character of title the court was offering to sell, and the purchaser can not, after the confirmation of the sale without objection, be allowed to say that the title was not a good one. 3. Such title as the infants had or owned should be passed to the purchaser before he is compelled to pay to their guardian the amount bid by him. 4. Special terms of circuit courts — What is necessary to authorize a valid special term. — “All orders for or concerning a special term must be entered on the records of the court.” (Revised Statutes, section 1, article 13, chapter 37, 1 Stanton, 331.) 5. A special term can not lawfully be held- without some order therefor previously made in term time or in vacation, and entered upon the order-book at least upon the day the term begins, and before the court proceeds to the transaction of business. ■ 6. The statute is peremptory, requiring the order for the special term to be entered on the records of the court. 7. But that provision of the statute is directory which requires that “notice thereof shall be posted up at the court-house door ten days before its commencement.” 8. No class of cases can be tried at a special term other than those for the trial of which it was ordered. 9. Bub preparatory orders, etc., may be taken in any civil cause at a special term called for any purpose. 10. Sale beneficial to infants, but defective in failing to pass their title. — The judgment of the circuit court rendering the sale absolute and requiring the purchaser to pay, on the appeal of the purchaser, is reversed. The circuit court is directed to require the guardian by supplemental proceedings to take all necessary and proper steps to render valid and binding the decree and sale; and when that is done to compel the purchaser to make payment.
70 Ky. 595Hall v. Jacobs (1870)
1. Use op an unimproved bank op the Ohio River, in mooring RAPTS, WILL NOT CREATE THE RELATION OP LANDLORD AND TENANT between the riparian owner of the bank of the river and the owner of the rafts. 2. Assumpsit can not be maintained por use and occupation unless . the relation of landlord and tenant has existed between the parties, and not then except upon an express or implied promise of payment. (Rogers v. Wiggs, 12 B. Monroe, 504; Richmond and Lexington' Turnpike Company v. Rogers, 7 Bush, 532; Taylor’s Landlord and Tenant, sec. 636.) 3. The law will, under certain circumstances, imply both the relation of landlord and tenant and a contract to pay rent; but generally no such implication can arise if there was no tenancy in contemplation' between the parties.
70 Ky. 597Pollard v. Louisville, Cincinnati, & Lexington Railroad (1870)
1. Confessions of a defaulting agent of a railroad company after his discharge from the service of the company are not admissible as evidence against the surety of such agent in an action on his bond for tbe faithful performance of his duties as agent. 2. When confessions of the principal are not evidence against his surety. — “If one becomes surety in a bond conditioned for the faithful conduct of another as clerk or collector, it is held that in an action on the bond against the surety confessions of embezzlement made by the principal after his dismissal are not admissible in evidence; though with regard to entries made in the course of his duty it is otherwise. (1 Greenleaf on Evidence, section 187; Commonwealth for Russell v. Brassfield, 7 B. Monroe, 447.)
70 Ky. 599Kniper v. City of Louisville (1870)
1. The right to grant licenses may be delegated to cities and towns by the legislature. 2. This delegated authority must be strictly construed and closely pursued. Section 96 of the charter of the city of Louisville provides that— “ The general council shall by ordinance provide for the folio wing-licenses to be paid into the sinking fund, with adequate penalties for-doing- business without the required license.” ... “For each brewer or distiller not less than fifty nor more than five hundred dollars.” .... And also authorizes said council “ to grade, class, and fix the rate of license within the minimum and maximum amounts designated.” An ordinance requiring brewers to pay “ one tenth of one per cent, on the amount of liquor manufactured ” for a license, providing that each brewer shall lie required to pay at least fifteen dollars per annum. Held, to be unauthorized and invalid; and the judgment of the city court imposing a fine of fifty dollars for failing to comply with said ordinance is reversed. 3. The general council “has the right to grade and class and fix the rate of license, but in doing so is required to keep within the minimum and maximum fixed by the legislature.” 4. “The right to require from the larger manufactures an annual sum in the shape of a license exceeding fifty dollars is made to depend upon the fact that all other persons in the city following the same business or craft are required to pay annually at least the sum of fifty dollars.” 5. The authority conferred upon subordinate bodies is to be strictly construed and must be closely pursued. (Sedgwick on Stat. and Con. Law, 466.) 6. The ordinance of a municipal corporation must conform strictly to the provisions of the statute giving power to pass the ordinance in question, or its proceedings will be void.
70 Ky. 604Robinson v. Williamson (1870)
1. Tub law traverses every material fact pleaded in an answer to which a reply is not required by the Civil Code. 2. An amended petition in the nature of a reply requires no answer. 3. InTo answer is required to an amended petition when the denials of the answer to the original petition are sufficient, and apply as well to the amended as to ihe original petition. 4. Defendant filed with his answer the plaintiff's receipt, which was prima fade evidence of the payment of the demand sued for. The plaintiff by permission of the court then, filed an amended petition, alleging facts which were denied by the answer to the original petition, and also that the receipt was “ drawn in the way it reads for the fraudulent purpose of avoiding the payment,” etc. Reid, that “the denials of the answer that anything was owing, and the allegation that payment had been made in full of all demands, made an issue. The receipt filed constituted no part of the pleading. It was only prima fade evidence of payment, and if obtained by fraud the plaintiff could prove the facts under the issue without controverting its genuineness by an amended pleading.” “ The onus was tlvrown upon the plaintiff Try the receipt, he having failed to deny the execution of it, and he could not escape it by an amendment in the nature of a reply.”
70 Ky. 609Carbon v. Stout (1870)
Case 59 — PETITION ORDINARY — NEW TRIAL SET ASIDE APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED 1 J. J. Marshall, 478, Gaines v. Dailey. 3 J. J. Marshall, 167, Wheatley v. Price. 5 J. J. Marshall, 243, Dana v. Gill. 5 J. J. Marshall, 251, Monks v. Greenwade. 1 Bibb, 276, Slack v. Price. Revised Statutes, 1 Stanton, 292. Littell’s Selected Gases, 20, Logan v. Gibbs. CITED Revised Statutes, section 31, chapter 25, 1 Stanton, 292.
70 Ky. 612Stamper v. Commonwealth (1870)
l: Accomplices in the crime op willful and malicious shooting at AND WOUNDING ANOTHER, ARE NOT PUNISHABLE UNDER THE STATUTE. Section 2, article 6, chapter 28, Revised Statutes, 1 Stanton, 382, fails to provide that persons guilty of aiding and abetting in the commission of said offense shall be punished in like manner as the principal offender. 2.' As a general rule, where a statute creates a felony and prescribes a particular punishment therefor, or where a statute provides a punishment for a common law felony by name, those who were present aiding and abetting in the commission of the crime are held to be included by the statute, although not mentioned as such in the statute. 3, But where, as in this case, the punishment is imposed by the statute upon the person alone who actually committed the acts constituting the offense, and not in general terms upon those who were guilty of the offense, according to common law rules mere aiders and abettors, ' will not be deemed to be within the act. (Roscoe’s Criminal Evidence, 215.)
70 Ky. 615McCall v. Hitchcock (1870)
A JUDGMENT VACATING AND SETTING ASIDE A FORMER JUDGMENT, Under sections 579 and 581 of the Civil Code, is final, and subject to appeal and revision in the Court of Appeals. Such a judgment is not a mere interlocutory order, subject to be set aside by the same court at a subsequent term, nor simply a ministerial act; nor could it be revised as an ordinary decision of a motion for a new trial may be on an appeal from the judgment in the original action; but it is the final adjudication of important rights litigated in a separate and independent suit, and is therefore subject to appeal and revision in the Court of Appeals.
70 Ky. 617Mount v. Tappey (1870)
1. A SURETY IS NOT EXONERATED PROM LIABILITY BY HIS PRINCIPALS paying or agreeing to pay usury, although such payment oi-agreement was not communicated to the surety. 2. It would be otherwise if the payment or agreement to pay usury was concealed from the surety for the purpose of inducing him to do what he would not otherwise have done, or increased the risk taken by him in becoming surety in the note. 3. Any secret arrangement between the creditor and the principal operating to diminish the principal’s ability to pay the debt, and fraudulently concealed from the surety or misrepresented to him by the creditor, would vitiate the contract; for the creditor should not be allowed, either by expressing a falsehood or suppressing the truth, to induce the surety to assume responsibility which he would otherwise avoid. 4. The answer in this case failed to allege that the agreement to pay usury was concealed from the surety for the purpose of inducing him to do what he would not otherwise have done, and contained no averment to the effect that the payment or agreement of the principal for the payment of usury increased the risk taken by the surety in the note. 5. A REASON SHOULD BE GIVEN in AN AMENDED ANSWER, OPPERED TO BE FILED AFTER JUDGMENT RENDERED, POR THE FAILURE TO ALLEGE THE ENTIRE MATTER OP DEFENSE IN THE ORIGINAL ANSWER. — Judgment was rendered for that part of the debt not controverted by the surety in Ms first answer, and thereupon the surety offered to file an amended answer, alleging that “ lie signed the note sued upon at the solicitation and procurement of the plaintiff, and in presence of said plaintiff’, who fraudulently misreqn'esented the facts of said loan in leading this defendant to believe that his co-defendant was paying only and no more than the legal rate of interest therefor,’’'1 and moved the court to set aside the judgment for the part of the debt uncontroverted by the original answer. The .court refused to set aside the judgment, but permitted the amended answer to be filed. The defendant excepted, and on Ms appeal the judgment of the lower court is affirmed. The court say: “ Waiving inquiry as to the sufficiency of the defense presented by the amendment, as no reason was disclosed for the failure to allege the entire matter of defense in the origmal answer, we can not adjudge that the refusal of the court to vacate the judgment and permit renewed litigation on the amended pleadings was not a proper exei'cise of judicial discretion.” Whether the defense in the amended answer would have applied to the entire debt or not, if it had been filed before judgment, is not decided.
70 Ky. 623Helm v. Short (1870)
Case 63 — APPEAL IN ROAD CASE APPEAL PROM HARDIN CIRCUIT COURT. CITED 3 Metcalfe, 71, Phillips v. Tucker. 3 Metcalfe, 188, Craig v. North. 1 Duvall, 163, Robinson v. Robinson. Civil Code, sections 30, 31, 33, 519, 849. Ms. Opinion, February, 1858, Pointer v. Curd. 3 Metcalfe, 384, Bond v. Mullins. Revised Statutes, chapter 84, 3 Stanton, 394.
70 Ky. 630Robinson v. Jennings (1870)
1. Surety paying the debt — his right oe action accrues against liis principal and against Ms co-sureties, for the debt or for contribution, for each payment at the date thereof. (Revised Statutes, section 7, chapter 97.) I-Ie may sue a co-surety separate!}', or as a joint defendant with the principal, when and- as often as he make payments. 2. Five years’ limitation will bar surety’s right oe action against his principal and co-sureties, on the implied contract to pay or contribute. (Revised Statutes, section 2, article 3, chapter 63.)
70 Ky. 633Priest v. Warren (1870)
1. “A SURETY FOR AN EXECUTOR, ADMINISTRATOR, GUARDIAN, OR CURATOR, OR FOR A SHERIFF TO WHOM A DECEDENT’S ESTATE HAS BEEN transferred, shall be discharged from all liability as such to a distributee, devisee, or ward, when five years shall have elapsed without suit after the accruing of the cause of action, and after the attaining of full age by the devisee, distributee, or ward; but the laches of one shall not affect the right of another.” (Revised Statutes, section 13, chapter 97, 2 Stanton, 400.) 2. The foregoing statute runs against married women, and is not qualified by chapter 63 of the Revised Statutes concerning limitation of actions, so as to render the savings therein provided in favor of married women applicable in cases against sureties provided for by said section 13, chapter 97.
70 Ky. 635Gill's Adm'x v. Kentucky & Colorado Gold & Silver Mining Co. (1870)
Case 66 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED Act of February 16, 1866, incorporating appellee. 8 Mass. 138, N. Bedford & Bridgewater Turnpike R’d Co. v. Adams. 17 B. Monroe, 352, Bull, &c. v. Harragan. , 14 Mass. 286, Franklin Glass Company v. White. Law Register, February, 1871, p. 125, Lyons v. O. A. & M. R. R. Co. CITED Act of February 16, 1866, incorporating appellee. Angelí & Ames on Corporations, 533-536, 509, 570. Story’s Conflict of Laws, 7, 23. Hill & Denio, 133. 20 Barbour, 155. 1 Redfield on Railways, 66, 70, 186, 167. 16 B. Monroe, 5, 358, 363. .6 B. Monroe, 5, 358, 363. 10 Watts, 364, 3 Metcalfe, 133, 282, 592. 3 Metcalfe, 133, 282, 592. 3 Pickering, 335. 27 Connecticut, 142, 282. 11 Cushing, 285. 26 Barbour, 202. ■ 7 Metcalfe, 592. 5 Harris & Johnson, 122. 8 Georgia, 486. 1 Blackford, 80, 270. 13 Peters, 521. 1 Missouri, 6. 11 Paige, 635. 4 Comstock, 463. 14 Peters, 122. 21 Barbour, 454. 5 Bush, 69. 1 Beas. N. J. Rep. 31. 1 Humphrey, 1. 6 B. Monroe, 599. 7 Barbour, 599. 2 Red. on Railways. 621. 3 Indiana, 392. 15 New Hampshire, 162. 6 Georgia, 130. 28 Pennsylvania, 318. 6 Jones (Law), 82. 13 Indiana, 404. 22 Connecticut, 435. 6 Massachusetts, 40. 16 Alabama, 372. 3 Sand. (New York) 466. 16 Ohio, 97. 5 H. & J. (Md. Rep.) 22. 21 Vermont, 30. 6 Hurl. & Nor. 38. 5 Alabama (Rep.) 786. 2 Price’s Ex. R. 93. 2 Bibb, 276.
70 Ky. 641Reed v. Commonwealth (1870)
Case 67 —INDICTMENT APPEAL FROM M’CRACKEN CIRCUIT COURT. CITED Wharton’s Am. Odm, Law, 2d ed., pp. 107-9, 570, 563, 564 Criminal Code, secs. 334, 271, 272, 128, 123, 129, 236. 2 Bishop on Criminal Procedure, sec. 707. 1 Bishop on Crim. Pro. secs. 329, 300, 297, 303, 301, 496, 498. 1 Metcalfe, 368, Commonwealth v. Megowan. 1 Duvall, 90, Mount v. Commonwealth. 1 Metcalfe, 370, Commonwealth v. Payne. CITED 2 Russell on Crimes, pp. 97, 86, 101. Wharton’s American Criminal Law, p. 661.
70 Ky. 644Hopson's v. Commonwealth ex rel. Shipp (1870)
Case 68 — PETITION EQUITY APPEAL FROM TRIQG CIRCUIT COURT. CITED Revised Statutes, sections 16, 18, chapter 106, 2 Stanton, 461. Revised Statutes, section 1, chapter 46, 2 Stanton, 1. Revised Statutes, section 17, chapter 30, 1 Stanton, 426. 2 Duvall, 335-841, Dunlap v. Shreve’s ex’r. CITED Revised Statutes, 2 Stanton, 2. 4 Metcalfe, 339, Sheets v. Grubbs. 2 Duvall, 334, Dunlap v. Shreve’s ex’r. 1 Duvall, 214, Renaker v. Lemon.
70 Ky. 651City of Louisville v. McKegney (1870)
1. Ordinances — How passed in the city of Louisville. — The charter of the city of Louisville requires that each board of the council shall keep a correct journal of its proceedings (art. 3, sec. 7), and that every proposed ordinance which has passed both boards shall be approved and signed by the mayor before it shall become an ordinance (sec. 5, art. 4). 2. The journal required to be kept by section 7, article 3, of the charter of the city of Louisville, should be a veritable and abiding record of the proceedings of each board, made at the time, under the direction and control of the board, by which all could be informed what was done there, and nothing left to the discretion or interpretation of the clerk. 3. Memoranda made by the clerk of the proceedings, intelligible to no one but himself, and from which he wrote out and had published what he understood to be the ordinances, are not such a journal, and are wholly insufficient evidence of the passage of ordinances. 4. Defects in the council records could not be cured after judsment by the act of March, 1871. — Said act, after judgment rendered, could not cure defects in the record or legalize the evidence offered, and thereby make a judgment erroneous which was not so when rendered.
70 Ky. 654Ewing v. Bibb (1870)
Case 70 — PETITION EQUITY APPEAL PROM WARREN CIRCUIT COURT. CITED 4 Law Register for 1865, p. 186. 4 Kent, 10th edition, 293, note. 4 Kent, 10th edition, 294, note. Civil Code, section 543 1 Bush, 62-3. 2 Bush, 278-9. 3 Bush, 541-3. 3 Dana, 233. 4 Dana, 198. 4 Bush, 180, 310-11. 4 Bush, 1-2. 5 Bush, 464-5. 14 B. Monroe, 643. 5 Bush, 236-9. Myers’s Supiilement, 751. CITED History of Roman Law, by Professor Ferdinand Walter, sections 655-9. Manuscript Opinion, present term, Julia A. Burton v. Sarah A. Burton. Matthew xix, 8-6, 5 Hemp. 14 Tennessee Reports. 3 Marshall, 470, 370. 1 Wendell’s Blackstone, 437. Myers’s Supplement, page 374, section 1. Justinian Institutes, book iii, title 7. 1 Bishop on Marriage and Divorce, sections 6, 140, 158, 189. 2 Stanton’s Revised Statutes, page 230, section 20. 30 Missouri, 72, Johnson v. Johnson. 11 Alabama Reports, 839. 16 B. Monroe, 334. 13 B. Monroe, 332. 3 Metcalfe, 397. 13 B. Monroe, 351.
70 Ky. 659Spalding v. Wathen (1870)
1. Appeal prosecuted in the name of a-dead party. — Reversal in SUCH A case can not be treated as void by the lower court. 2. The appellant’s death, if known, should have been taken advantage of in the Court of Appeals by a plea under the provisions of section 898 of the Civil Code. When a plaintiff dies pending his suit, his death may be pleaded in abatement. But the defendant may waive sueh plea, and permit the cause to be tried upon its merits, without revivor. Death of the plaintiff aftrn' judgment in the circuit court, and before the appeal was prosecuted, did not take horn the Court of Apipeals the right to entertain such appeal. Regularly, a personal representative should have been appointed, and the appeal prosecuted in his name. But when the appeal was prosecuted in the name of the dead plaintiff, without objection by the appellee, the judgment of reversal in the Court of Appeals, and proceedings had under it, are not void, because the appeal was not prosecuted in the name of a personal representative. 3. As the death of the appellant was not known to the appellee in this case prior to the reversal of the judgment appealed from, and as the judgment upon its face was regular and its validity not a question which could be properly inquired into in the circuit court in a collateral proceeding, the only means by which the appellee could obtain relief against it was by an application to the Court of Appeals, upon the discovery of appellant’s death, for a correction of its judgment, for the reason that it was an error which could be corrected, if at all, only by the court which rendered the judgment. 4. Death of one of the parties before judgment is a ground for the vacation of the judgment by the court in which it was rendered. (Civil Code, section 579.) 5. It is not decided in this case “ whether or not the Court of Appeals could have vacated or set aside its judgment of reversal in this case, upon an application made after the expiration of the time within which a petition for a rehearing could have been filed, even though it might have been made to appear that the death of the appellant did not come to the knowledge of the appellee until after the expiration of that time. ” 6. But “ until such judgment of reversal is set aside or vacated, by proper proceedings, it can not be treated as a nullity by any of the inferior courts.” 7. The judgments of all courts of competent jurisdiction an'e binding upon the parties thereto until reversed or vacated in the manner prescribed by law, notwithstanding irregularities in the proceedings through which the same are obtained. (Canden and others v. Robertson, 2 Scammon, 508.) 8. If a judgment be rendered in favor of or against a feme covmd suing or defending as a feme sole, or in favor of or against a dead man, which would be manifestly erroneous as soon as the fact shall appear, the error could be corrected only by the court which rendered the judgment, (Caso v. Ribelin, 1 J. J. Marshall, 30.)
70 Ky. 665Thomas v. Thomas (1870)
Case 72 — MOTION IN COURT OP APPEALS MOTION, IN APPEAL PROM ROWAN CIRCUIT COURT, TO HAVE WIFE’S ATTORNEY’S PEE TAXED AGAINST THE HUSBAND — MOTION OVERRULED. CITED 7 B. Monroe, 459-60, Billings v. Pilcher & Hauser. 8 Metcalfe, 303, Meyar v. Meyar. 2 Metcalfe, 412, Ballard v. Caperton. 18 B. Monroe, 517, Williams v. Monroe. Revised Statutes, section 32, chapter 25, 1 Stanton, 292.
70 Ky. 667Bradley v. McAtee (1870)
Case 73 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Sedgwick on Statutory and Constitutional Law, 629. Charter of 1851 of the city of Louisville. Charter of 1870 of the city of Louisville, section 12. 7 Oranch. 165. 16 Howard, 369. 10 Howard, 416. 18 Howard, 331. 6 McLean, 142. 3 Howard, 133. CITED Section 12 of the charter of 1870 of the City of Louisville. Constitution of Kentucky, Bill of Rights, sections 20, 14. Constitution of the United States, section 10, article 1. Charter of 1851 of the City of Louisville, section 6, article 7, and the last section of the charter of 1851. 9 Dana, 516, Lexington v. McQuillan’s heirs. CITED Act of Virginia of May, 1780, establishing Town of Louisville. Charter of 1828 of the City of Louisville, sections 9-11. Elliott’s Digest, 40, 92, 93, 437. Angelí on Highways, 304. Charter of 1840 of the City of Louisville, sections 16, 45. Charter of 1851 of the City of Louisville, article 7, section 6. Charter of 1870 of the City of Louisville, section 12. Woodfall’s Law of Landlord and Tenant, 256. 11 Casey, 400, City of Philadelphia v. Tryon. 27 Missouri, 495, Egyptian Levee Company v. Hardin. 30 Missouri, 537, City of St. Joseph v. Anthony. 10 Tiffany (37 New York), 266, Howell v. City of Buffalo. 14 Ohio, 438, Creighton v. Scott. 20 Iowa, 292, Buel v. Ball. » 17 Wisconsin, 441, Myriclc v. City of LaCrosse. 16 Louisiana, 326, McGuinn v. Peri. 17 Louisiana, 325, Coleman v. Poydras Asylum. 28 California, 345, Emery v. San Francisco. 29 California, 123, Walsh v. Mathews. 29 California, 75, Emery v. Bradford. 11 Wend. 155, In the matter of Canal Street. 16 Pickering, 504, Goddard, petitioner. 55 Missouri, 505, Garrett v. The City of St. Louis. 14 Indiana, 199, Anderson v. Kern. 10 Wisconsin, 242, Weeks v. City of Milwaukee. 27 California, 613, Creighton v. Macon. 4 Comstock, 419, The People v. Mayor, &c. of Brooklyn. 9 Casey, 94, Gault’s appeal. 8 Wright, 113, Commonwealth v. Woods. 8 Wright, 118, McGonicle v. City of Alleghany. 9 Watts, 382, Green v. Borough of Reading. 4 Watts & Sergeant, 514, Mayor v. Randolph. 6 Harris, 187, O’Conner v. Pittsburg. 6 Wharton, 44. 36 Missouri, 467. 4 Dana, 154, Keasy v. City of Louisville. 9 Dana, 513, City of Lexington v. McQuillan’s heirs. 1 Dali, 210. 51 Barbour, 82. 4 Tiffany (31 New York), 574. 5 Smith (19 New York), 116, Brewster v. City of Syracuse. 2 Statute Laws, Act of 1812, sections 175-6, page 407. Curwen’s Laws of Ohio, 1368. 3 Banks (Kansas Reports) 186, Hines v. City of Leavenworth. 5 Ohio, 248, Hill v. Higdon. 7 Hill, 9, 22, Stryker v. Kelly. 2 Denio, 323. 8 Metcalf (Mass.) 180. 9 Minnesota, 273, Sanborn v. Rice County. 3 C. E. Green, 54, 518, Tide-water Company v. Coster.
70 Ky. 676Donnellan v. Commonwealth (1870)
Erroneous instructions ghven at the instance of the commonwealth IN A CASE OF HOMICIDE. “1. If the defendant killed Woollums willfully with a deadly weapon, not in sudden heat and passion caused by legal provocation, nor in self-defense, the deed was murder, and the jury should so find. The unlawful intent to take life for an instant before the commission of the act is sufficient to constitute the legal malice required to make the killing ¡murder. “3. If the killing was done without malice, and in sudden heat and passion caused by legal prrovocation, it was manslaughter; and to reduce the offense from murder to manslaughter the jury must believe, from the evidence, it was committed in sudden heat and passion arising from a legal provocation; and no words or oaths are in law sufficient provocation to cause or excuse such sudden heat and passion; but that legal provocation can only arise in cases where such words ewe accompanied by or succeed such an assault made by the deceased on the defendant, prior to or at the time of the shooting, as put the latter in real or apparent danger of his life-or great bodily harm. “3. The law allows no one to use any more severe means to repel a threatened injury than are necessary, and if any one, in disregard of this, uses a deadly weapon in repelling such threatened injury, and death thereby ensues, such killing amounts to murder.” Held, That so far as the foregoing instructions can be regarded as leaving the jury, to determine for themselves what would constitute legal jirovocation, they were not correct. As to the suggestion as to “ words or oaths," etc., the court is of the opinion “that, however great the provocation must be to lower the' grade of the crime from murder, it was erroneous and misleading to so instruct the jury as to restrict it to a state of case constituting an excuse for killing in self-defense.” The suggestion that the existence, for an instant before the killing, of an unlawful intent to take life as “sufficient to constitute the legal malice required to make the killing murder,” was misleading, and a misapplication of the correct principle that “ it is sufficient to constitute murder that it appears that malice existed at the time « of the killing,” without regard to the time in which it had before existed; for in every case of manslaughter only the killing is presumed to liave been done with an unlawful intent. The instruction to the effect that in any case the use of a deadly weapon, not in necessary self-defense, whereby death ensues, will constitute murder, was also erroneous. Such use of a deadly weapon is evidence of malice, and may be an essential ingredient in the proof of murder in many cases, but it does not follow that every homicide committed by the use of a deadly weapon, and not in necessary self-defense, is murder. ,
70 Ky. 680Downing v. Bacon (1870)
Case 75 — PETITION ORDINARY APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. CITED 5 Bush, 596, Bacon, Mcdardy & Go. v. Hutchings, Duncan & Co. 2 Metcalfe, 525, Daniel v. Toney. 4 Bush, 19, Hikes v. Crawford. Civil Code, sections 161, 685, 871, 864. Act of January 26, 1866, Session Acts, 1865-6, page 16. Story on Partnership, section 184, page 223. 2Car. & P. 325, Loyd v. Freshfield. 1 Sun. 376, Bevan v. Lewis. 15 Eastman, 7, Emly v. Lye. 6 Cowen, 497, Jaques v. Marquam. 1 Day, 148, note, Mead v. Tomlinson. 2 Pet. 186, 198, Leroy v. Johnson. 3 Indiana, 177, Eoley v. Robards. 8 Metcalf (Massachusetts), 411, Green v. Parmer. 5 Watts, 454, Graeff v. Hetchman. 4 Humphreys, 346, Poster v. Hall. 2 Exch. 746, Cooke v. Seeley. Parson’s Mercantile Law, page 190. 6 Bush, 27, Bailey v. Villier. Revised Statutes, Myers’s Supplement, 770. 17 B. Monroe, 609, Preeman v. Brenham. 1 Bush, 105, Meadows v. Campbell. Manuscript Opinion, January, 1858, Wood v. Porman. 9 B. Monroe, 223, Singleton’s administrators v. Kennedy, &e. CITED Manuscript Opinion, July, 1858, Barbour v. Boss’s administrator. Civil Code, sections 161, 364, 800. Revised Statutes, Myers’s Supplement, 560, 770. 5 Bush, 595, Bacon, McOlardy & Co. v. Hutchings, Duncan & Co. 6 Bush, 27, Bailey v. Villier. 1 Bacon’s Abridgment, 530, “Bill of Exceptions.” 2 Tidd’s Practice, 2d American edition, pages 786, 788. 1Salkeld, 288, Wright v. Sharp. 4 Peters, 106, case of Martha Bradstreet. 9 Wheaton, 651, Walton v. United States. 1 Morekead & Brown’s Digest, pages 245, 247-8. 3 Marshall, 360, Biggs v. Mcllvain. 3 Bibb, 195, Givens v. Bradley. 2 Metcalfe, 425, Vandever v. Griffith. 2 Duvall, 81, Jones v. Kelly. 2 Duvall, 300, Swan v. Goodman. 1 Duvall, 278, Hubble v. Murphy. 1 Duvall, 394, Buckner v. Bush. 1 Metcalfe, 575, Smith’s adm’x v. Northern Bank of Kentucky. 2 Metcalfe, 137, Ryan v. Bean’s administrator. 2 Metcalfe, 607, Millett v. Parker. 3 Metcalfe, 74, Combs v. Jefferson Pond-draining Company. 4 Metcalfe, 330, Buckles v. Lambert.
70 Ky. 687Hull v. Deatly's adm'r (1861)
The following opinion, delivered by Judge Duvall January 18, 1861, is now published by order of the court. — Rep. 1. Death op claimant of personalty does not stop the statute FROM RUNNING. When the statute begins to run in t-he lifetime of the claimant of personalty, it is not interrupted by his subsequent death. If the cause of action did not accrue in his lifetime, it does not commence running until after administration upon his estate. But if the cause of action acoi'ued before the death of the claimant, the interval that elapsed after the claimant’s death, before administration upon his estate, is not excluded in the computation of the time necessary to complete the bar. (1 Bibb, 181; 2 Bibb, 537; 3 B. Mon. 41; 13 B. Mon. 409.) 2. A NEW SUIT MAY BE COMMENCED WITHIN ONE YEAR. — Where a Suit has been commenced within the time limited, and that expires, and the suit abates by the death of the plaintiff, if another suit is commenced within a year after the abatement, it comes within the equity of the proviso in the statute allowing a new action to be brought, in certain cases, within a year after the expiration of the time. (Baker v. Baker, 13 B. Mon. 409.) 3. Plaintiffs’ representatives must revive within the year. — Civil Code, section 570: “ An order to revive an action in the name of the representatives or successor of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made; except that where the defendant shall also have died, or his powers have ceased in the mean time, the order of revivor on both sides may be made in the'period limited in the last section.” 4. The right of action for personalty vests in the personal representatives of the claimant. 5. Lis pendens is lost ie the action is not revived within the vear. —If the personal representatives of the plaintiff, in an action for personalty, fail to revive his action within the year, having parted with a valuable consideration, the purchasers of such property, without notice of the suit, can not be treated as purchasers pendente lite. 6. The legal beebct oe the death oe the plantipe was an abatement. ■ — -The usual practice is not to have an order of abatement entered, but to let the case remain on the docket for revivor within a reasonable time; and if no steps are taken to revive within such time it is stricken from the docket. (See Civil Code, secs. 557-573.)