71 Ky.

Volume 71 — Kentucky Reports

123 opinions

71 Ky. 1Commonwealth v. Turner (1871)
1. Indictment should follow the statute. — Where the words of the statute are descriptive of the offense the indictment should follow the language, and expressly charge the described offense on the defendant, or it will be defective. 2. “If any person shall willfully kill, disfigure, or maim any horse,” etc. (Sec. 8, art. 25, chap. 28, Bevised Statutes, 1 Stanton, 411.) An indictment under this statute, which charged that the defendant “did unlawfully shoot and kill a bay mare,” etc., was defective.
71 Ky. 3Arnold v. Park (1871)
Case 2 — PETITION— APPEAL EROM BATH CIRCUIT COURT. 9 Johnson’s Pep. 123, Wood v. Williams. 1 Espinassi’s Nisi Prim, 244. 2 Parsons on Contracts, 220, and note. 4 Met. (Mass.) 80, Pierce v. Parker. 8 Metcalfe, 828, Bennett v. McCrocklin. Coke upon Littleton, section 508. Comyn’s Digest, title Eelease, E. Cliitty on Contracts, 9th: American edition, 675. Eevised Statutes, sec. 6, chap. 22, 1 Stanton, 268. Myers’s Supplement, 292. Civil Code, section 80.
71 Ky. 7Commonwealth v. Powell (1871)
1. Indictment for taking and carrying away timber unlawfully, though not FELONIOUSLY. — The indictment alleges that the defendant “unlawfully and without felonious intent destroyed, injured, and carried away timber from four trees on the premises of John W. Wash, which said property belonged to the said Wash, and was taken without his consent.” The circuit court sustained a demurrer to the foregoing indictment. That judgment is reversed. 2. If the indictment sufficiently alleged two or more distinct and separate offenses, it would be defective for duplicity and consequent uncertainty as to the precise charge on which a conviction would be sought. 3. The specific allegations of this indictment constitute but one complete offense under the statute — that of unlawfully taking and carrying away the timber of four trees belonging to Wash, the charge of carrying away necessarily involving the taking of the timber; the words “destroyed” and “injured,” as used in the indictment, if not appropriately descriptive of that offense, being too general and indefinite to constitute with sufficient certainty either of the other offenses intended to be embraced by the statute.
71 Ky. 9Hyatt v. James's adm'r (1871)
1. What court may grant administration. — On the estate of an intestate administration shall be granted in that court -which would have had jurisdiction to grant a certificate of the probate of his will if he had died testate. (Section 1, article 2, chapter 37, Revised, Statutes, 1 Stanton, 502.) 2. On the estate oe a non-resident intestate administration shall be granted in the county where he died, or that wherein his estate, or the greater part thereof, shall lie, or where there may be any debts or demands owing to him. (Section 27, chapter 106, Revised Statutes, 2 Stanton, 465.) The word “estate,” in “wherein his estate or the greater part thereof shall lie,” means reed estate. In the county “where there may he any debt or demand owing to the decedent,” the jurisdiction would not be defeated by the fact that his debtors had claims against his estate. 3. When intestate owns real estate in two or more counties in THIS STATE, PRESUMPTION IN PAVOR OP THE COUNTY COURT.— When it appears that the non-resident intestate owned real estate in the county in which the administration on his estate was granted, and that he also owned real estate in other counties in this state, this court will presume, in the absence of allegation or proof to the contrary, in favor of the action of the county court in which the administration was granted.
71 Ky. 12Graham & Co. v. Duckwall, Fitch & Co. (1871)
Case 5 — PETITION OEDINAEY APPEAL PROM JEEEERSON COURT OE COMMON PLEAS. CITED 1Domat’s Civil Law, 492, Cushing’s edition. 7 East. 558, Hinde v. Whitehouse & Galen. 1 Espinassi, 105, Rucker v. Cammeyer. 27 Maine, 362, Hinckley v. Arey. 15 East. —, Whitehead, &c. v. Tuckett. 4 Barn. & Cress. 547, Carr v. Hinchcliff. 11 East. 36, Favenc, &c. v. Bennett, &c. 1 Starkie, 185, Campbell, &c. v. Hassell, &c. 2 Barn. & Aid. 137, Baring, &c. v. Corned 4 Com. Bench, 149, Ireland v. Thompson. 20 Wendell, 267, Saltus v. Everett. 34 New York Reports, 424, Higgins v. Moore. 3 Foster (N. H.) 373, Fowle v. Leavitt. Story on Agency, sections 28, 34, 106, 109. CITED Payley on Agency, 280, Dunlap’s edition, 278. Statute of March 2, 1860, 2 Stanton, 805. Story on Agency, section 109. Payley on Agency by Lloyd, 279, 280. 2 Campbell, 242, Blackburn v. Baldwin. 1 Greenleaf on Evidence, section 79. 1 Starkie, 233, Campbell v. Hassell. 4 Burrows’s Reports, 2104.
71 Ky. 22Marking v. Needy (1871)
1. Rewards for the apprehension of offenders, offered by private individuals, may be enforced. (Lee v. Trustees of Flemingsburg, 7 Dana, 29.) 2. Bui such rewards can not be claimed by public officers whose sworn duty it is to make the arrest. Nor by any person unless the party arrested was legally liable to be so taken into custody, or unless the person making the arrest acted in good faith, having reasonable grounds for believing that he was but discharging a duty which every good citizen owes the public. Otherwise the arrest will be illegal, and the contract by which it was brought about contrary to public policy, and therefore not enforceable. A party under bail is constructively in the custody of the law. 3. Bail can not authorize the arrest of the accused by a third person in any other manner than by his written indorsement on a certified copy of the bail-bond or recognizance, as prescribed in section 82 of the Criminal Code. 4. Reward can not be recovered for the arrest of a defendant WHO WAS UNDER BAIL WHEN SUCH ARREST WAS NOT AUTHORIZED. The parties claiming the reward in such cases must show that they had the written authority of the bail indorsed on a certified copy of the bail-bond or recognizance, or that they had reasonable grounds for believing that the accused was subject to arrest without warrant or other legal process.
71 Ky. 25Jones's v. Finnell (1871)
Case 7 — PETITION EQUITY APPEAL FROM OWEN CIRCUIT COURT.
71 Ky. 28Lockett's adm'x v. James (1871)
1. Dower oe surviving wipe is not barred by a conveyance executed by husband and wife which is set aside as fraudulent. (1 Scribner on Dower, 610; 1 Washburn on Real Property, 213.) 2. The fraudulent vendee is not entitled to the dower interest of the wife after the conveyance is adjudged fraudulent, although the wife was not' made a party to the proceedings.
71 Ky. 31Piatt v. Covington & Cincinnati Bridge Co. (1871)
Case 9 — PETITION— APPEAL FROM KENTON CIRCUIT COURT. CITED Revised Statutes, see. 1,1 Stanton, 465; sec. 4, pages 538-9. Revised Statutes, secs. 1 and 2, 2 Stanton, 126, 127; 1 ib. 153-4. Myers’s Supplement, 692, Act of December 9, 1865 Constitution of the United States, amendment 5. Constitution of Kentucky, section 14, article 13. Constitution of Ohio, section 19, article 1. Addison on Torts, last English edition, pages 11, 12. Lloyd’s Law of Compensation, English edition, 1870, page 90. Houk on Rivers, 205-214, sections 311-330. Civil Code, sections 153. 8 Dana, 50, Samuel Kennedy’s heirs v. Covington. 1 Greenleaf on Evidence, secs. 189, 211, 510, 511, 538, 551. 4 Johnson’s Chancery, 156, Ogden v. Gibbons. 2 J. J. Marshall, 225, Trustees of Maysville v. Boon. 4 J. J. Marshall, 29, 30, Brown v. Given. 8 O. S. 344, Coakley v. Perry. 12 O. S. 231, Ward v. McIntosh. 15 O. S. 162, McKinzie v. Pemil. 7 O. S. 99, Conover v. McAfferty. 18 O. S. 169, Goodin v. Cincinnati & Whitewater Canal Co. 19 O. S. 92, Hatch v. Cin. & Ind. Railroad Company. 5 yol., part 6, Year Book, 1 Henry IV. to 1 Henry VI., A. D. 1399-1423. 12 Year, folio 47 a, Wallace’s Reporter, 69, 70. 1 Smith’s Leading Cases, 4th Am. ed., side page 131, top page 311. 5 Johnson’s Chancery, 101-112, Newburg & T. P. Co. v. Miller. 2 Equity Cases, 123, Litton v. Goodden. 4 American Law Register, N. S., 513-522. 5 A. & E. 804, Reg. v. Thames Imp. Nav. Com’rs. 8 Wallace, 603, Hepburn v. Griswold. 11 Peters, 420, Charles River Bridge Co. v. Warren Bridge Co. 7 N. H. 59, Piscataqua Bridge Co. v. N. H. Bridge Co. 13 Howard, 71-81, Richmond & R. Co. v. Louisa, &c. R. Co. 21 Cal. 252, 253, Eall v. County of Sutter. 30 New York, 61, Fort Plain Bridge Co. v. Smith. 6 Paige’s Chancery, 554, Mohawk, &c. v. Utica, &c. 1 Barbour’s Chancery, 547, Oswego, &c. Falls Bridge Co. v. Fish. 3 Indiana, 21, Bush v. Peru Bridge Co. 2 Porter (Ala.) 296, Dyer v. Tuscaloosa, &e. 2 Alabama (N. S.) 746, Jones v. Johnson. 11 Leigh (Va.) 42, Tuckahoe, &c. v. Tuckahoe, &c. 17 Connecticut, 454, Enfield Toll, &c. v. Hartford, &c. 3 Sand. Chancery, 625, Thompson v. N. Y. & Har. &c. 3 Wallace, 210, Turnpike Co. v. State. 1 Wallace, 116, Bridge Co. v. Hoboken. 2 Greenleaf’s Cruise, 66, N. 3 Washburn on Real Property, 269, 273. 1 Redfield on Railways, side pp. 131-2, top pp. 258-9, and note. 2 Redfield on Railways, top pp. 255, 256, 406, sec. 231. 27 Vermont, 140, Thrope v. But. & Bur. R. Co. 15 Vermont, 746, Armington v. Barnett. 16 Vermont, 746, West River, &c. v. Dix. 6 Howard, 507, West River Bridge Co. v. Dix. 1 Shelf. Rail. (Bennett’s) 441, and cases cited. 2 Jones’s Law Rep. 186, McRee v. Wilmington & Raleigh R. R. Co. 19 Johnson’s, 381, Guille v. Swan. 4 Gray, 474, Central Bridge Company v. Lowell. 21 Vermont, 590, White River Turnpike Co. v. Vermont Central Railroad Co. 23 Pickering, 360, Boston Wat. Pr. Co. v. Boston, &c. R. Co. 2 Gray, 1, Boston & Low. R. R. Co. v. Salem & Low. R. R. Co. 42 Barbour, 119, Matter of Kerr. 3 Indiana, 464, New Castle & R. Riv. v. P. & Ind. R. 2 Washb. Real Property, top pages 271, 272, side pages 11-24. 2 McLean’s Reports, 376, 377, Bowman v. Wathen. 4 Bibb, 309, Lawless v. Reese. 1 Black, 603, 630, 632, Conway, &c. v. Taylor’s executors. 6 Monroe, 186, 187, Givens v. Ferguson’s heirs. 3 J. J. Marshall, 668, Lytle v. Breckinridge. 6 J. J. Marshall, 143, Evertson v. Sanderson. 2 Marshall, 379, Jefferson Seminary v. Wagon. 3 Marshall, 321, Givens v. Pollard. 2 Littell, 301, Casey v. Jones. 17 B. Monroe, 567. 11 O. S. 367, Bird v. Blessing. 7 Dana, 81, and 178-80, Rice v. Turnpike Company. 5 Dana, 28, Sutton’s heirs v. Louisville. 9 Dana, 114, Jacob v. Louisville. 15 Monroe, 401, Woolf v. Lexington & Covington Railroad Co. 13 B. Monroe, 31, Slack v. Maysville Railroad Company. 17 B. Monroe, 177, Henderson & Nashville R. R. Co. v. Dickerson. 17 B. Monroe, 190, Waller v. Martin. 2 Duvall, 140, Richmond & Lexington Turnpike Road Company v. Rogers. CITED 3 Sand. (Ch. Rep.) 625, Thompson v. N. Y. & Harlem R. R. Co. 1 Barbour, 547, Oswego Falls Bridge Co. v. Fish. 8 Dana, 64, Kennedy v. Covington. 3 Kent’s Commentaries, 565. 5 Yerger, (Tenn.) 189, Allen v. Farnsworth. 10 Yerger, 280, Nashville Bridge Company v. Shilby. 2 Dev. (N. C.) 403, Pipkin v. Wynns. 5 Bush, 458, Hamilton v. Keith. 2 Porter, 296, Dyer v. Tuskaloosa Bridge Company. 17 Conn. 454, Enfield Toll-bridge Co. v. Hartford & New Haven Railroad Co. 11 Peters, 420, Charles River Bridge Co. v. Warren Bridge. 17 B. Monroe, 584, Kennedy v. City of Covington. Greenleaf’s Cruise, title “ Franchise,” sec. 29. Constitution of the United States, section 10, article 1.
71 Ky. 39Booker v. Stevenson (1871)
1. Fees eor reclaiming eugitives erom justice under a requisition EROM THE GOVERNOR MAY BE WAIVED BY THE AGENT oe the state. — By act of February 17, 1858 (1 Stanton, 559), the agents of the state appointed for such purposes are allowed to receive, as compensation for their services, mileage at the rate of twelve and a half cents per mile for the distance they may be required to travel, and such fees and necessary expenses as they may have to expend in reclaiming and transporting the -fugitive. These claims are to be allowed by the governor, and paid by the treasurer upon the warrant of the auditor. 2. In a proceeding by mandamus to compel the governor to allow such claims, the governor can not be regarded as in default for refusing to allow a claim which embraced any illegal or unauthorized charge. 8. The agent for the state could not create a charge of four dollars against the state by paying to the assistant secretary of state, without authority of law, that amount for issuing the commission and requisition. The fees authorized by the act to be paid by the agent are such as can be lawfully collected by the officers of the state in which the fugitive may be arrested. 4. “This arrest to be made eree oe charge to state oe Kentucky” being written by direction of the governor upon the face of the commission in this case appointing the agent for the state, and the same being applied for and received by such agent upon the condition expressed in said writing — Held, The governor had a right to issue the commission upon the condition expressed, and the acceptance of the commission by the agent subject to that condition was a waiver of his rights to claim compensation under the statute aforesaid. Mandamus refused.
71 Ky. 43Bryant v. Merchants Bank (1871)
“Presentation and protest waived” being inserted in the body of a bill, this waiver affects and forms a part of the contract of the indorser as well as of the drawer, and is binding 'upon the indorser according to the tenor and effect of the bill.
71 Ky. 46Prather v. McDowell (1871)
Case 12 — PETITION EQUITY APPEALS PROM louisville chancery court. CITED Revised Statutes, section 20, chapter 24. Revised Statutes, sec. 7, art. 4, chap. 47, 2 Stanton, 26. Statute of 1820, section 2. Hill on Trustees, 264, 266, 282, 383. 1 Morehead & Brown, 111, Statute 1798. 1 Greenleaf’s Cruise, top pages 202, 213, 449. 4 Mason, 273, Hall v. Savage. 2 Bush, 65, Smith v. Vertrees. 9 Massachusetts, 218, Catlin v. Ware. 13 Massachusetts, 223, Lufkin v. Curtis. 2Greenleaf’s Cruise, top page 327. 2 Greenleaf’s Cruise, title 32, “Deed,” chapter 1, section 16. 3 Mason, 348, Powell v. Monson. 9 Dana, 216, Applegate v. Gracy. 15 B. Monroe, 114, Hedger v. Ward. 6 Dana, 800, Worthington v. Middleton. 3 Dana, 112, Nantz v. Bailey. 5 Monroe, 352, Moore v. Tisdale. 5 Bttsh, 561, Hatcher and wife v. Andrews. 4 Kent’s Commentaries, 62. 2 J. J. Marshall, 438, Fitzhugh v: Croghan. 5 J. J. Marshall, 15, Shields v. Batts. 13 Pickering, 382, Leavitt v. Lamprey. 1 Bouvier’s Law Dictionary, “ Indenture,” page 620. 4Monroe, 245, Milner v. Turner. 3 Bacon’s Abr., “Fines and Recoveries,” pages 635-912. 2 New Hampshire, 525, Elliott v. Hesper. 8 Pickering, 536, Stearns v. Swift. 4 Howard, —, Agricultural Bank of Mississippi v. Rice. 27 New Hampshire, 332, Burge v. Smith. 38 New Hampshire, —, Woodward v. Sea ver. 12 Shipley (Maine), —, Stevens v. Owens. 9 Ohio, 121, Foster v. Denison. 7 Ohio, 337, McFarland’s case. 7 Monroe, 661, Tevis v. Richardson. 5 Dana, 348, Timberlake v. Parish. 2 Johnson’s Chancery, 452, Adsit v. Adsit. 4 Monroe, 266, Bailey and wife v. Duncan. 16 B. Monroe, 479, Worsley’s executor v. Worsley. 2 Metcalfe, 408, Yancey v. Smith. 3 Metcalfe, 151, Tevis’s executors v. McCreary. 15 B. Monroe, 620, Butler v. Miller, 4 J. J. Marshall, 466, Miles v. Bacon. 6 Dana, 477, Ogden v. Grant. 5 B. Monroe, 164, Ship v. Bowman. 7 Monroe, 588, Pool v. Young. 3 Littell, 410. 16 B. Monroe, 241, Ely, Clapp, &c. v. Hair, &c. 17 B. Monroe, 549, Lyons v. Field. 3Atkyns, 459, Boteler v. Allington. 1 Drury & Wraren’s Rep. 489, Thompson v. Simpson. • 2 Wendell, 176, Variek v. Jackson. 1 Burrows, 111, Atkins v. Hord. 2 Blaekstone, 348, Coke C, note 1, 330. 5 Cowen, 371, Doe v. Thompson. 6 Johnson, 179, Smith v. Buster. 4 Bracton, chap. 12. 4 Henry VII., chap. 24. 1 Bibb, 512, Davis v. Whitesides. 2 Barr, 52, Smiley v. Biffle. 5 Littell, 309, May’s heirs v. Hill. 17 B. Monroe, 381, Edwards v. Woolfolk. 24 Law Library, Lewin on Trusts and Trustees. 1 Story’s Equity, sections 63, 64. 2 Story’s Equity, sections 977, 980. 3 Atkyns, 238, Mead v. Lord Orrery. 17 B. Monroe, 447, Lexington Ins. Co. v. Page & Richardson. 4 Metcalfe, 262, Matson v. Matson. 12 B. Monroe, 329, Johnson v. Jones. 14 B. Monroe, 527, Petty v. Malier. 2 Metcalfe, 521, Toombs v. Stone. 10 Wharton, 175, Elmendorf v. Taylor. 2 Peters, 212, Hunt v. Wickliife. 17 B. Monroe, 682, Gault and wife v. Trumbo. 3 Grattan, 373, Sheppard v. Turpin. 7 Jones, 235, Welborn v. Finley. 9 B. Monroe, 161, Couch v. Couch. 9 B. Monroe, 423, Rosson v. Anderson. 13 B. Monroe, 279, Darnell v. Adams. 3Metcalfe, —. Coleman v.-Walker. 3Peere Williams, Earl of Huntingdon’s case. 2 Schoales & Lefroy, 607, Hovenden v. Lord Annelsley. 1 Atkyns, 581, Hopkins v. Hopkins. 7 Dana, 53, Buckner v..Yonker. , 6 B. Monroe, 45, Carey v. Callan. 11 B. Monroe, 161, Wickliffe v. Lexington. 1 Vesey, 278, Kemp v. Westbrooke. 3 Monroe, 505, White v. Prentiss. 9 Massachusetts, 509, Wells v. Prince. 15 Massachusetts, 471, Wallingford v. Hoarl. 3 Binney, 384, Hall v. Vandegraft. 6 Leigh, 486, Merritt v. Smith. 4 Blackford, 81, Raymond v. Simonson. 3 Iredell, 248, Paxton v. Rhea. 4 Johnson, 398, Jackson v. Shoonmaker. 4 Howard (Mississippi), —, Magruder v. Stewart. 3 Stewart, 172, John y. Wren. 15 Vermont, 344, (biddings v. Smith. 5 Iredell, 634, Fagan y. Walker. 2 Ajjpleton, 242, Durham y. Angier. 29 Missouri, 176, Salmons v. Davis. 3 Maryland Chancery Reports, 398, Young v, McCall. 7 Dana, 274, King v. Mims. 3 Monroe, 537, Boone v. Dyke. 8 B. Monroe, 541, Tom Tingle v. Davis. 2 B. Monroe, 439, Bohannon v Sthresley. • 9 B. Monroe, 103, Davenport v. Prewett. 1Marshall, 121, Graves v. Graves. 1 Marshall, 268, Frailey v. Langford. 2 B. Monroe, 105, Langdon v. Woolfolk. 9 B. Monroe, 10, McBride v. Craig. 2 Marshall, 578, Ligget v. Wall. 2 B. Monroe, 21, Griffith v. Dicken. 3 J. J. Marshall, 418, Hart v. Young. 5 Dana, 426, Birney v. Richardson. 14 B. Monroe, 569, Tureman v. White’s heirs. 1 Dana, 575, Simrall v. Graham. 18 B. Monroe, 403, Bums v. Ray. 3 Marshall, —•, Chiles v. Dedman. 1 Dana, 236, Betty v. Moore. 7 Monroe, 59, South’s heirs v. Thomas’s heirs. 6 Monroe, 490, Beard v. Smith. 1 Metcalfe, 499, Maddox v. Allen. 2 Duvall, 16, Jones v. McCauley. 4 Bibb, 64, Commonwealth v. McGowan. 2 Merrivaile, • — ■, Cholmondely v. Chilton. 1 Jacob & Walker, 532, Widdowson v. Earl of Harrington. 1 Marshall (English), 599, Romilly v. James. 2 Bush, —, Grigsby v. Breckinridge. Adams on Ejectment, 600. Angelí bn Limitations, sections 371, 415. Littell’s Select Cases, 512, Reed v. Bullock. CITED Act of 1820, 1 Morehead & Brown, 449. Act of 1796, 1 Morehead & Brown, 575, 226, 1125. Revised Statutes, section 3, article 1, chapter 43. Revised Statutes, section 3, 16, article 4, chapter 43. Revised Statutes, section 7, article 4, chapter 43. Hill on Trustees, side pages 267,164, 504. Angelí on Limitation, sections 394, 400, 404, 104, 174. Jac. 503, Dickerson v. Robinson. 1B. Monroe, 308, Gates and wife v. Jacob. 1 Dana, 288, Fenwick v. May’s heirs. 9 Modern Rep. 32, Lawley v. Lawley. 2 Merrivaile, 360, Oholmondely v. Ohilton. 3 Atkyns, 459, Boteler v. Allington. 3 Peere Williams, 215, Lechmore v. Earl of Carlisle.. 2Jacob & Walker, 171, 175, Oholmondely v. Chilton. 11 B. Monroe, 161, Wickliffe v. City of Lexington. 1Leigh, 163, Rankin v. Bradford. 1Drury & Warren (Irish), Thompson v. Sympson. 1 Chitty’s Equity Digest, 1372, par. 6; 1364, par. 3. 2 Chitty’s Equity Digest, 2993, par. 3. 2 Eq. Ca. Ab. 579, Lewellyn v. Mackworth. 3 Peere Williams, 309, Wych v. East. 3Peere Williams, 310, Earl of Huntingdon’s case, note g. 3 Ball & Beat. 74, 75, Pentland v. Stokes. 2Schoales & Lefroy, 629, Hovenden v. Annelsley. 6 Jones (1ST. C. Equity) 327, Herndon v. Pratt., 7 Jones (N. C. Law) 233, Wellborn v. Finley. 25 Alabama, 62, Fleming v. Gilman. 2 Barr’s Pa. R. 52, Smilie v. Biffle. 9 B. Monroe, 161, 162, Couch v. Couch. 9 B. Monroe, 426, Rosson v. Anderson. 13 B. Monroe, 279, Darnell v. Adams. 17 B. Monroe, 380, Edwards v. Woolfolk. 3 Metcalfe, 67, Coleman v. Walker. 10 Georgia, 359, Worthy v. Johnson. 1 Sneed, 301, Wooldridge v. Planters Bank. 6 B. Monroe, 374, Ring v. Gray. 18 B. Monroe, 785, Kinsolving v. Pearce. 3Dana, 338, Dubois v. Marshall. 6 B. Monroe, 333, Bedford v. Thomas. 8 B. Monroe, 187, Gill v. Fountleroy. 13 B. Monroe, 443, .Larmon v. Huey’s heirs. 5 Peters, 440. 8 Peters, 41. 7 Wheaton, 535. 2 Barr, 52. 1 Marshall, 8, Buckner v. Trustees, &c. 7 B. Monroe, 680, Giltner v. Trustees, &e. 7 Johnson’s Chancery Reports, 90, Kane v. Bloodgood. 3Metcalfe, 153, Tevis v. McCreery. 2 Schoales & Lefroy (Irish) 444, Birmingham v. Kirwan. 1 Washburn on Real Property, ch. 8. 7 Cranch, 370, Herbert v. Wren. 2 Johnson’s Chancery, 451, Adsit v. Adsit. 17 New York, 577, Savage v. Burnham. 32 New York, 325, Tobias v. Ketchum. 2 Story’s Equity, page 1097. 1Eden, 487, Northumberland v. Granby. 1Swanston, 381, Dillon & Parker. 3 Bro. O. C. 39, Butrick v. Bradhurst. 3 Mason, 347, Powell v. M. & B. Man. Co. 7 Massachusetts, 20, Eowler v. Shearer. 15John. 109, Jackson v. Gilchrist. 17 Wendell, 128, Bool v. Mix. 1Dali. 11, Davy v. Turner. 7 Foster, 332, Burge v. Smith. 5 Henning’s Statutes, 408. 1 Morehead & Brown, 430, 433. 2 New Hampshire, 525, Elliot v. Hesper. 2Dana, 463, Blakey v. Blakey. 15 B. Monroe, 604, Petty v. Malier. 2 J. J. Marshall, 438, Fitzhugh v. Oroghan. 4 Selden, 112, Moore v. Mayor of New York. 16 Ohio, 257, Smith v. Hardy. 3 Dana, 320, Brown v. Starke. 15 B. Monroe, 114, Hedger v. Ward. 7 Monroe, Lewis v. Richardson. 6 Dana, 300, Worthington v. Middleton.' 5 B. Monroe, 352, Moore v. Tisdale. 7 B. Monroe, 693, Flournoy v. Johnson & Tingley. 3Mason C. C. R. 152, Robinson v. Hook. 10 Ohio State R. 506, Williams v. First Pres. Soc. 17 Vesey, 88, Beckford v. Wade. 1 Ball & Beattie, 163, Mendicott v. O’Donnel. 1 B. C. C. 553, Townshend v. Townshend. 10 Wheaton, 152, Elmendorf v. Taylor. 10 Peters, 223, Boone v. Chiles. 1 Watts, 275, Lyon v. Marday. 18 B. Monroe, 601, Manion v. Titsworth. 3Grattan, 394, Shephards v. Turpin. 2 Sugden on Vendors, 217. 3 Peere Williams, 309, Wyth v. East India Co. 2 Ball & Beattie, 68, Pentland v. Stokes. 4 Richardson’s Equity Reports, —, Long v. Cason. 3 Georgia, 262, Paschal v. Davis. 7 Georgia, 158, Thomas v. Brinsfield. 14 Ohio, 443, Henderson v. Horner. 1B. Monroe, 306, Gates and wife v. Jacob. 3 J. J. Marshall, 264, Cosby v. Ferguson. 12 Wendell, 674, Bradstreet v. Clarke. 1 Leading Cases in Equity, 155, Toilet v. Toilet. 2 Peere Williams, 222, Coventry v. Coventry. 2Munf. 129, Roberts v. Stanton. 17 Missouri, 9, Norcum v. D’Oench. 2 Bush, 64, Smith v. Vertrees. 3 Bibb, 453, Jones v. Langhorne. 4 Bibb, 2, Rennick v. Rumsey. 1 Monroe, 43, McClanahan v. Chambers. 38 Grattan, Taylor v. Stearns. 7 Monroe, 588, Pool v. Young. 3 Littell, 405, Ormsby v. Tarascón. 5 Ohio State, 124, Hoffman v. Maekall. 19 Ohio State, 214, Woodruff v. Robb. 7 Watts & Serg. 343, Man. and Mer. Bank v. Bank of Pa. 23 Pick. 446, Henshaw v. Sumner. 10 Connecticut, 292, Bates v. Coe. 4 J. J. Marshall, 458, Miles v. Bacon. 3 Monroe, 1, Ward v. Trotter. 8 Dana, 247, Vernon, &c. v. Morton, &c. 3 B. Monroe, 219, Stewart v. Hall. 14 B. Mon. 549, Loughborough’s executor v. Loughborough’s devisee. 4 B. Monroe, 423, Bank of United States v. Heeth. 16 B. Monroe, 230, Ely, Clapp, &e. v. Hair & Nugent. 15 B. Monroe, 617, Butler v. Miller. 17 B. Monroe, 543, Lyons v. Field. 5 Watts & Serg. 36, Blank v. German. 1 Duvall, 245, Dent v. Breckinridge. 6 Ohio State, 547, Wraxer v. Fugg. 2 Ves. & Beamis, 222, Chalmers v. Storil. 1 Sim. & Stu. 513, Roberts v. Smith. 17 New York, 562, Savage v. Burnham. 2 Yeates, 302, Duncan v. Duncan. 23 Connecticut, 327, Lord v. Lord. 14 Grattan, 540, Dixon v. McCue. 4Strobb. Eq. 84, Bailey v. Boyce. CITED Hill on Trustees, toil page 483. 2 Johnson’s Chancery, 76, Hart y. Ten Eyck. 4 Johnson’s Chancery, 629, Thompson y. Brown. 10 B. Monroe, 413, Cross y. Petree. 14 Johnson’s Chancery, 559, Franklin v. Osgood.
71 Ky. 63Mulholland & Bros. v. Samuels (1871)
1. When notice of protest must be given or sent by a notary.— The notary is required to give or send the notices of the dishonor of the paper to the parties sought to be held liable, when he knows their place of residence. 2. A NOTARY IS NOT REQUIRED TO USE ORDINARY DILIGENCE TO ASCERTAIN the place OF residence of the parties sought to he held liable by the protest and notice.’ 3. A notary is A competent witness to prove that he did not at the time of the protest know the place of the residence of the parties to the bill. 4. When questions of fact are submitted to the court without the intervention of a jury, the judgment of the court can not he disturbed, upon tho sole ground that it is contrary to the weight of the evidence, for any less reason than would authorize the setting ■ aside of the verdict of a jury.
71 Ky. 66Rank v. Hill's adm'r (1871)
Case 14 — PETITION EQUITY APPEAL PROM BOURBON CIRCUIT COURT. CITED Revised Statutes, section 30, chapter 37,1 Stanton, 508. Williams on Executors, 697, 698. 4 J. J. Marshall, 50, Oldham v. Oollins. 1 Metcalfe, 503. 2 Bush, 582. 6 Monroe, 603, Williamson’s administratrix v. Richardson. 2 Dana, 54, 55, O’Bannon v. Roberts. 4 Dana, 548, Combs v. Branch. cited 6 Monroe, 602, Williamson’s administratrix v. Richardson. 4 Dana, 548, Combs v. Branch. 2 Dana, 55, O’Bannon v. Roberts. Revised Statutes, section 30, chapter 37. Revised Statutes, section 5, chapter 56. Morehead and Brown’s Statutes, 666.
71 Ky. 69Reed v. Louisville Bridge Co. (1871)
1. The Jefferson Court of Common Pleas has jurisdiction, under the 2d section of “an act to incorporate the Louisville Bridge Company” (Session Acts, 1855-6, page 426), of a proceeding to condemn by writ of ad quod damnum “as much real estate as may be necessary for the site of said bridge, or the sites for the piers, abutments, toll-houses, and suitable avenues leading to the same, and such other land as may be necessary.” . 2. The Louisville Bridge Company under said act had the right to acquire title by condemnation of such land “ as may be necessary,” etc. 3. This necessity must exist as a condition precedent. It must be ascertained by a competent tribunal, before which the parties whose lands are sought to be taken, as well as the company, can be heard. 4. The jury empaneled to ascertain the value of the real estate in the petition mentioned assessed the value of the lands, and also “adjudged that the same was necessary for the purposes of the company.” Held, that if the jury heard any evidence on any other question than the value of the land their action was extrajudicial; and their finding that the lands taken were necessary to the company, not being responsive to the writ, was entitled to no consideration by the court. 5. How this necessity may be ascertained. — It will be proper for the court to hear such evidence as may be offered, and ascertain what portions, if any, of the lands sought to be condemned are necessary for the legitimate purposes of the company, and then award a writ of ad quod damnum to assess the value of such portion thereof as it may order to be taken. 6. Guardian ad litem may prosecute an appeal. — In this case land of infants was condemned, and the statutory guardian accepted and receipted for the assessed value thereof; but the guardian ad litem in their names appealed, and the judgment of condemnation is reversed.
71 Ky. 74Trabne v. McAdams (1871)
1. A LESSEE MAY BRING AND MAINTAIN AN ACTION IN HIS OWN NAME'AGAINST HIS SUBLESSEE AND HIS ASSIGNEE, on the covenants of such sublessee to pay rental to him. 2. As the sublessee and his assignee recognized the original lessee as their landlord, they can not avoid paying rental to him in the absence of any apparent danger that they may be compelled to pay again to some one else. Such danger, if made apparent, would entitle them to an equitable defense, by which the rights of all the parties and all the claimants of the rents might be heard and adjudicated. 3. A LESSEE, BEING SUED EOR RENT, MAY PROSECUTE A CROSS-ACTION against his assignee to compel him to discharge the rent and release him from responsibility. 4. The purchaser oe a lease becomes the assignee by operation of law, if not by express covenant, and undertakes the responsibilities of an assignee of the unexpired term. 5. The assignment oe the term does not release erom their express obligation lessees who were responsible both upon the express covenant in the written memorial and as lessees. 6. The assignee oe the term becomes responsible to the lessor for the rents from the time of the assignment. His liability did not depend upon his taking personal possession of the premises. By taking the transfer the assignee was thereby notified of the terms of the lease, and thereby accepted them and undertook their performance. 7. The assignee oe a term and lease can not discharge or release himsele erom liability to pay the rental accruing after the transfer to him by anything short of an actual, absolute transfer or assignment of the unexpired term. 8. Lease oe mines being owned by two persons as assignees AND JOINT OWNERS, AND OPERATED BY ONE OE THEM. — So long as the other was a joint owner the possession of his co-tenant was in fact as well as in law his possession, and he was responsible to the original lessor for the accruing rents. The joint liability continues until the joint ownership ceased to exist.
71 Ky. 81Proctor v. Smith (1871)
Case 17 — PETITION EQUITY APPEAL PROM BOYLE CIRCUIT COURT. CITED 10 B. Monroe, 344. 9 B. Monroe, 323, 617-625. 4 B. Monroe, 540. 3 Metcalfe, 158. 5 J. J. Marshall, 355. 1 Marshall, 217. 7 B. Monroe, 14. 4 Monroe, 221. 16 B. Monroe, 421. 7 Monroe, 109, 229. 10 Watts, 274, Loomis v. McClintock. 14 Massachusetts, 496, Monnot v. Prescott. 4 Georgia, 52, Dudley v. Mallory. Sugden on Powers, side page 123. CITED Bevised Statutes, section 18, chapter 80, 2 Stanton, 229. 16 B. Monroe, 422, Thomas v. Thomas’s executors. CITED 3 Metcalfe, 591, Nunnally v. White’s executors. 16 B. Monroe, 554, Hill v. Golden. 18 B. Monroe, 166, Tocld’s heirs v. Todd’s heirs.
71 Ky. 86Walker v. Commonwealth (1871)
Case 18 — RULE— APPEAL EROM LOUISVILLE CITY COURT. CITED Civil Code, section 665. Criminal Code, sections 55, 56. Cowp. 830, The King v. Brownsall. Revised Statutes, 1 Stanton, 172. Hawkins P. C. 277-79. 2 Metcalfe, 619, Turner v. Commonwealth. 2 Halsted (New Jersey), 162, Anonymous. 6 Leigh, 626, Fisher’s case. 1 Wheeler’s Criminal Cases, 330, Stryker’s case. 1 Bacon’s Abr. title “Attorney,” p. 306. 6 East. 126, Southerton’s case. 1 Tidd’s Practice, 88. 18 B. Monroe, 485, Rice v. Commonwealth. CITED 1 Bacon’s Abridgment, “Attorney,” p. 306. 2 Metcalfe, 630, Turner v. Commonwealth. 18 B. Monroe, 482, Rice v. Commonwealth. 9 Wheaton, 529, Burr’s case. 19 Howard, 9. 1 Munford, 481. 1 Wheeler’s Criminal Cases, 332, Stryker’s case. 1 Wheeler’s Criminal Cases, 503, Burr’s ease.
71 Ky. 97Boswell v. Sheriff (1871)
Case 19 — PETITION ORDINARY APPEAL EROM GRANT CIRCUIT COURT. CITED 2 Metcalfe, 512, Hamilton v. Yail. 1 Duvall, 7, Collier v. Higgins. Revised Statutes, 1 Stanton, 259.
71 Ky. 98Duncan v. Mayor of Louisville (1871)
Case 20 — PETITION FOE MANDAMUS APPEAL EROM JEEEERSON COURT OE COMMON PLEAS. CITED Elliott’s Digest of Laws and Ordinances of Louisville, pages 147, 148, Act of 1865. Ibid., pages 338, 339, section 7, Act of 1868. Ibid., page 872, Ordinance of December 9, 1867. Ibid., pages 882, 883, Ordinance of August 4, 1868. Ibid., page 880, Ordinance Ho. 366. Story’s Equity, section 533. Civil Code, sections 526, 397. 1 Dana, 86, 87, Blanchard v. The Maysville Turnpike. 1 Marshall, 85, Gashweller’s heirs v. Mcllvoy. 4 Littell, 325, Jackson v. Winn. 11 Hew York, 308. 25 Illinois, 518. 15 Grattan, 244. 3 Blackstone, 259, 260. 5 Dana, 533. ■ 1 Marshal], 106. 7 Cranch, 603, Fairfax’s devisee v. Hunter. 2 Morehead & Brown’s Statutes, 1393, “JRoads.” Ib., “Mills.” 10 Wendell, 396, The People v. The Mayor.of Heiv York. 23 Wendell, 458, McCullough v. The Mayor of Brooklyn. 2 Metcalfe, 56, Maddox, &c. v. Graham & Knox. 8 B. Monroe, 648, Page v. Ben. Hardin. 1 Bibb, 309. 1 Marshall, 49. 4 Dana, 336. CITED Elliott’s Laws and Ordinances of Louisville, pp. 147-8, 389, 880-883.
71 Ky. 108Smith v. Commonwealth (1871)
1. NO LAW SHALL RELATE TO MORE THAN ONE SUBJECT, AND THAT SHALL BE EXPRESSED IN THE TITLE. — “An act to separate the offices of commissioner and receiver of the Louisville Chancery Court, and to provide for the appointment of said officers, and to define their duties, and to fix the fees of the commissioner,” approved February 28, 1871, is held to he constitutional. 2. The second section of said act, which provides that the receiver and commissioner shall be removed at the pleasure of the court, and the . eighth section providing that all laws in conflict with this act are hereby repealed, are held not to be in conflict with that provision of the constitution which provides that no law shall relate to more than one subject, and that shall be expressed in the title. 3. None of the provisions of a statute should be regarded as unconstitutional where they all relate directly or indirectly to the same subject, have a natural connection, and are not foreign to the subject expressed in the title. (Phillips v. Covington and Cincinnati Bridge Company, 2 Metcalfe, 219.) 4. The chancellor has power to remove the commissioner summarily.- — The power to remove the commissioner, which was taken from the chancellor by the act of 1865, was restored to him by the act of February 28, 1871. 5. The oeeice oe commissioner oe the Louisville Chancery Court is a mere creature of the legislature, and subject to be abolished at any time.
71 Ky. 115Feltman v. Butts (1871)
1. Devise to heirs oe devisee in remainder. — “I now give the said lot to my brother Samuel during his life, and after his decease I will said lot to his heirs.” Held, that in the above the devise is to Samuel during his life, and after his decease to his heirs; that at his decease the devise takes effect in favor of those persons who are then his heirs. 2. Prooe oe will and codicil by same subscribing witessses.— “ Commonwealth of Kentucky, Kenton County, Sot. “A writing purporting to be the last will and testament of B — , deceased, together with the codicil annexed thereto, was produced in court for probate, and proved by the oaths of P— and H — , subscribing witnesses thereto. Whereupon the same is established as and for the last will and testament of the said B — , deceased, and ordered to bo recorded, which is accordingly done,” etc. Held, that from the above it appears that the will and codicil were both produced in court for probate; that the names of the subscribing witnesses were on both papers; that the will and codicil were both proven by the subscribing witnesses, and were established as and for the last will and testament. 3. “Heirs” and “children.” — See opinion for a reference to cases in which these words are discussed and interpreted. “Heirs,” when used in reference to a living person, as the ancestor, means in its popular sense children who are heirs apparent. In this case of a devise to S. for life, and after his decease to Ms heirs, the court say: “As S. had living children at the date of the will, we can not hesitate to conclude that the testator used the'word heirs in the instrument in place of and for children.” 4. Wills probated beeore the Revised Statutes were adopted. In such cases the rights of the parties must be determined by the laws in force then, and not by the laws subsequently enacted. 5. Heirs and devisees are liable for all debts and liabilities of the ancestor or testator to the extent of lands acquired by descent or devise. See statute of 1796 (1 M. & B. Statute Laws, 742), and also section 5 of chapter 40, Revised Statutes (1 Stanton, 552). 6. Devisees in remainder were not divested oe their estate by tbe proceedings, judgment, and sale thereof, in a suit to which they were not parties.
71 Ky. 121West Covington v. Freking (1871)
Case 23 — EJECTMENT— APPEAL FROM KENTON CIRCUIT COURT. CITED 8 B. Monroe, 288, 259, Rowan’s ex’rs v. Town of Portland. 8 B. Monroe, 209, Trustees of Augusta v. Perkins. 11 B. Monroe, 163-4, Wickliffe v. City of Lexington. 7 B. Monroe, 680, Giltner, &c. v. Trustees of Carrollton. 8 B. Monroe, 437-44, Trustees of Augusta v. Perkins. 1 Burrows, 75, Goodtitle v. Alker. 3 B. Monroe, 480, Bowling Green v. Hobson. . 7 B. Monroe, 686, Wickliffe v. Bascom, &c. 3 Bush, 676, Calhoon v. Belden. 2 Session Acts, 1857-8, page 270. 1 Session Acts, 1859-60, page 425. 6 Bush, 236, Trustees of Hawesville v. Hawes’s heirs, &e. 1 Marshall, 153, McMillen v. Brown. 1 Marshall^ 406, Coleman v. Morrison. 3 Kent’s Commentaries, 419, 450. 6 Peters, 431, City of Cincinnati v. Lessee of White. 6 Pickering, 405, Hobb v. Larwell. 2 Smith’s Leading Cases, 222, 223. Revised Statutes, section 1, article 4, chapter 100. Angelí on Highways, sections 25, 312. Adams on Ejectment, 78, 79. Chari. Rep. 342, Mayor, &c. of Havana v. Steamboat Co. of Ga. Washburn on Easements and Servitudes, 2d edition, page 569. Civil Code, section 675. CITED 18 B. Monroe, 262, City of Covington v. McNicMes’s heirs. 4 Littell, 119, Trustees of Falmouth v. Horter. 1 Marshall, 153, McMillen v. Brown. 6 Bush, 233, Trustees of Hawesville v. Hawes’s heirs. 1 Marshall, 406, Coleman v. Morrison. 1 Burrows, 75, Goodtitle v. Alicer. 8 Dana, 55, Kennedy v. Covington. 16 B. Monroe, 131, Alvis v. Henderson. 6 Massachusetts, 454, Perley v. Chandler. 28 Pa. St. 355, Woodring v. Forks Township. 2 Metcalfe, 482, Helly v. Donahoe. 1 Connecticut, 135, Peck v. Smith. 36 Barbour, 136, Durham v. William. 2 Morehead & Brown, 1505, Act of 1796. 7 B. Monroe, 680, Giltner v. Trustees, &c. 7 B. Monroe, 681, Wickliffe v. Bascom. 11 B. Monroe, 155, Wickliffe v. Lexington. Civil Code, section 152. Acts of 1857-8, page 270. Session Acts, 1849-50, page 239. Roll’s Abridgment, page 392. Angelí on Highways, sections 301, 320. Revised Statutes, chapter 100, 2 Stanton, 420.
71 Ky. 129Kerr v. Gibson (1871)
1. Depositions can not be read against a party who was made a defendant by an amended petition filed after the depositions were taken. 2.. Depositions taken in one suit may be read in another, when it is made to appear that they were taken between the same parties or persons claiming in privity with them. 3. A witness, aeter giving his deposition, was made a deeendant in the action by an amended petition. His own deposition might be read against him, but other depositions taken before he was made a party could not be read against him. 4. It was not necessary for a party before the trial commenced to file exceptions to the reading of depositions which were taken before he was made a party to the suit.
71 Ky. 131Commonwealth v. Merrigan (1871)
1. A capias pro eine may be replevied. (Section 13, chapter 42, Revised Statutes, and Myers’s Supplement, 213.) 2. A judgment for a fine is merged by a bond replevying a capias pro fine which issued thereon. A capias pro fine was replevied in this case, and on the replevinbond an execution was issued and returned “no property.” A second capias was then issued, and quashed on motion of the defendant. The judgment of the circuit court quashing the the second capias is affirmed.
71 Ky. 133Von Bories v. United Life, Fire, & Marine Insurance (1871)
Subsequent insurance, without formal notice or consent THERETO WRITTEN ON THE POLICY, DID NOT EXONERATE THE FIRST INSURER FROM .LIABILITY IN THIS CASE. The United Life, Fire, and Marine Insurance Company and the Kenton Insurance Company had the same general agent in Louisville. Shea & O’Connell obtained from said agent a policy on goods, etc., in the company first above named, and on the next day they obtained from said agent a policy on the same goods, etc., in the other company. Formal notice of the second insurance was not given to the first insurer, nor was its consent thereto written upon its policy. In a suit against it to recover for a loss which occurred more than sixty days after the, date of its policy, the United Life, Fire, and Marine Insurance Company, as a bar to a recovery, relied on the following condition in its policy, to-wit: “If there is or shall hereafter be made any further insurance on the property hereby insured without being notified to this company, and its consent thereto written hereon, then and in that case this policy shall be of no binding force on this company.” Held, The second insurance did not render the first contract absolutely void. The company had the election, after notice of the violation of the contract, to cancel the policy by returning a proper proportion of the premium, or to retain the premium and permit it to remain in full force. Good conscience and fair dealing required the company, in case it was intended to enforce the forfeiture, to take the necessary steps within a reasonable time after notice of the second insurance. The knowledge of the agent was notice to the company. ; The company had notice from the very moment its general agent issued the policy in the Kenton Insurance Company. The company waived the right to exoneration.
71 Ky. 139Freeman v. Commonwealth (1871)
1. Failing to obtain license prom town trustees to keep a coffee-house. — The keeper of a coffee-house in Oalhoon, having obtained a license from the county court as required by the general law, but not being licensed so to do by the trustees of said town as required by its charter, is not liable to the fine of sixty dollars, under an indictment for keeping a tippling-house, as prescribed by the general law. 2. A LICENSE FROM THE AUTHORITIES OF A TOWN OR CITY ALONE will not he a protection against the penalties imposed by the general law for keeping a tippling-house. (Revised Statutes, section 8, article 2, chapter 83.) 3. A license from the county court alone will not protect such offenders from the prescribed or appropriate penalty for violating the local law.
71 Ky. 141Carlin's adm'r v. Carlin (1871)
1. Property can not be held or vested so as not to be subject to the owner’s debts. — A bond for land provided that the land should not be subject to. any debt created by the vendee before a particular date, but to be subject to any debt he may make after the property comes into his hands. Held, that this property was subject to the vendee’s debts, no matter when created. The provision in the writing attempting to screen it from prior debts is inconsistent with the grant itself, and null and void. 2. Provisions oe a will are not cut oee or limited by another WRITING PREVIOUSLY EXECUTED WHICH IS NOT TESTAMENTARY.— Testator sold some land to his brother, and in his bond for the same inserted the following: “ This is all I intend for my brother;” and, having no children, he afterward made a will in which he devised one half of his estate to his “ kindred as the same would descend at law.” Held, that the bond for the land does not deprive that brother of an equal interest with his brothers and sisters in the property devised to them. To exclude him would be to decide that the word kindred did not include that brother. 3. A deed or bond made after a will is written might destroy the provisions of the will; but a will can not affect the rights of a party acquired-under a deed or bond executed before the will takes effect. 4. Discharge of bankrupt does not relieve him from fiduciary obligations. 5. A security of the bankrupt, having paid his liability on a guardian’s bond, recovered judgment against him, and subjected his estate acquired, after his discharge.
71 Ky. 147Sherley v. Billings (1871)
Case 29 — PETITION— APPEAL EROM JEEEERSON COURT OE COMMON PLEAS. CITED Story on Agency, sections 314, 318, 316, 454, page 616. Salk. 282, Middleton v. Fowler. Revised Statutes, section 2, chapter 7,1 Stanton, 202. Am. Law Reg. 621, Oct. 1870, Little Miami R. R. v. Wetmore. Smith on Master and Servant, 157. Shearman & Redñeld on Negligence, secs. 55, 59-66, 261-263. Hail & Colt, 541, Simpson v. London General Omnibus Co. Angelí on Carriers, section 604 and note 4. 2 Comstock, 479, "Vanderbilt v. Richmond Turnpike Company. 19 Wendell, 345, Wright v. Wilcox. 1 East. 67, McManus v. Crickett. 16 B. Monroe, 582-3, Kountz v. Brown. 1 B. Monroe, 96, Ferguson v. Terry. , 1 Taunton, 568, Bouche v. Wordston. Ohio, 583. 11 Ohio, 381. 2 Queen’s Bench, 535, Poulton v. London & S. W. R. R. Co. 1 Blackstone, CMtty’s edition, 431, notes 24 and 26. 1 Monroe, 130, Hallowell v. Hallowell. 2 Kent’s Commentaries', side pages 259, 260. 10 Wisconsin, 393, Milwaukie Railroad v. Finney. 12 Allen, 35, Howe v. Newmarch. 8 Barb. 868, Brand v. Railroad. 4 Gray, 465, Moore v. Railroad. 7 H. & N. 355, Seymour v. Greenwoood. 42 Pennsylvania, 365, Pennsylvania Railroad Co. v. Vandiver. 17 New York, 364, Weed v. Railroad. 7 Am. Law Register, new series, 14, Railway v. Hinds. 14 Howard, 468, Railroad v. Derby. 34 Connecticut, 554, Flint v. Transportion Company. 1 Clifford, 145, Nieto v. Clark. CITED Am. Law Reg., January, 1871, Goddard v. Grand Trunk R. R. Shearman & Redfield on Negligence, sections 266, 2, 59, 65. Parsons on Contracts, 696, et seq. Story on Agency, section 452. Smith on Master and Servant, 152. Abbott on Shipping, 211. Angelí & Ames on Corporations, section 388. Revised Statutes, section 2, chapter 7, “Boats and Navigation.” Civil Code, sections 46, 451. Angelí on Carriers, section 572. 4 Metcalfe, 49, Farwell v. Boston. 5 Duer, 193, Weed v. Panama R. Co. 36 New York, 378, Merrick v. Eighth Av. R. Co. 1 Duer, 253, Caldwell v. Murphy. 49 Maine, 279, Edwards v. Lord. 16 Illinois, 538, Galena & Chicago Railroad Company v. Fay. 17 B. Monroe, 110, Hawkins & Co. v. Riley. 34 New York, 87, N. Y. & N. H. R. R. Co. v. Schuyler, &c. 12 Mod. 472, 490. 14 Howard, 487, Philadelphia & Reading Railroad Co. v. Derby. 9 Car. & Payne, 607, Sleath v. Wilson. 15 Arkansas, 118, Duggins v. Watson. 1 H. & C. 526, Limpus v. London Omnibus Company. 21 Howard, 202, Philadelphia & Baltimore Railroad v. Quigley. 6 Jurist, new series, part 2, page 143. 17 New York, 362, Weed v. Panama Railroad. 16 B. Monroe, 582, Kountz v. Brown. 9 Dana, 468, Smith, v. Shackleford. 8 Mason, 243, Chamberlain v. Chandler.
71 Ky. 156Orr v. Orr (1871)
Case 30-PETITION FOR DIVORCE APPEAL FROM KENTON CIRCUIT COURT. CITED 9 B. Monroe, 546, Scarborough v. Watkins and wife. 18 B. Monroe, 906, Todd’s heirs v. WicMiffe. 2 Bush, 220, Williams and wife v. Woodward. 1Greenleaf on Evidence, sections 23, 26, 275. 1 J. J. Marshall, 389, Gully v. Grubbs. 4 Metcalfe, 265, Watson v. Watson. 9 Dana, 317, Norris v. Norris’s administrator. 6 B. Monroe, 615, Hunter’s adm’r v. Miller’s ex’r. 7 Massachusetts, 291, Colcord v. Swan. 15 Johnson, 483, Whitlock v. Cook. 6 Wendell, 14, Martin v. Dwelly. 6 Bush, 686, Curd v. Dodds, &c. 1 Morehead & Brown, 122, Act of 1809, section 7. 5 Bush, 170, Flood v. Flood. Beeve’s Domestic Delations, 162. Bevised Statutes, section 6, chapter 47, 2 Stanton, 21. CITED 3 B. Monroe, 3, Scott’s heirs v. Scott & McClure. 1 Marshall, 582, Trumbo v. Cartwright. 2 J. J. Marshall, 110, Scott v. Watts. 5 Dana, 170, Powell v. Powell. 3 Monroe, 327, Jenkins v. Jenkins. 5 Monroe, 512, Gore v. Simrall and wife. 8B. Monroe, 120, Griffin v. Griffin.
71 Ky. 161Culbertson v. Holden (1871)
Case 31 — PETITION— APPEAL PROM KENTON CIRCUIT COURT. CITED 1 Metcalfe, 575, Smith’s adm’x v. Northern Bank of Kentucky. 2 Metcalfe, 518, Chenoweth v. Fielding. 14 Monroe, 321, Allen’s executors v. Shelby. Civil Code, section 670, subdivision 6. CITED 1 Johnson, 161. Peake’s Evidence, 112.
71 Ky. 163Rogers v. Bradford (1871)
Case 32 — PETITION— APPEAL PROM KENTON OIROUI-T COURT. CITED Civil Code, section 418. New York Code, section 217. 1 Duvall, 299, Barron v. Landes. 5 Selden, 470, Dwiakt v. Enos. CITED 3 Metcalfe, 29, Dodd v. Combs. Civil Code, section 577.
71 Ky. 166Digby v. Kenton Iron Co. (1871)
Case 33 — PETITION— APPEAL FROM CAMPBELL CIRCUIT COURT. Civil Code, section 675; 670, subdivision 6. Constitution of the United States, section 2, article 3. Story on Constitution, section 1666. Rawle on Constitution, chapter 21, page 202. Judiciary Act, 1789, 1 Statutes at Large U. S. 73. Benedict’s Admiralty, sections 217, 221. Shearman & Redfield on Negligence, sections 23, 33, 34. 5 Howard, 458, Waring v. Clark. 1 Kent, section 17, page 351. 1 Blackstone (Tucker’s), appendix, 181, 182. 2 Elliott’s Debates, 390. 49 Illinois, 501. 1 Wheat. 333, Martin v. Hunter. 12 Howard, 443, Gennessee Chief. 4 Wallace, 355, Hiñe v. Trevor. 8 Wallace, 15, The Eagle. 20 Howard, 296, Jackson v. The Magnolia. 2 Car. & K. 160, Toulmin v. Hedley. 61 English Common Law Reports, 160. 18 New York, 248, Button v. Hudson Railroad Company. 17 Wisconsin, 428, Chicago, &c. Railroad Co. v. Goss. 2 Duvall, 114, Louisville & Nashville R. R. Co. v. Collins. 4 Bush, 507, Louisville & Nashville R. R. Co. v. Robinson. 6 Bush, 574, Louisville & Nashville R. R. Co. v. Eilburn. 16 Peters, Prigg v. Commonwealth of Pennsylvania. CITED 6 Bush, 25, Roke v. The Owners of Steamboat Potomac. 3 Bush, 438, Stewart v. Harry. 5 Bush, 607, Marshall & Kilpatrick v. H. H. Curtis, &c. 4 Wallace, 571, Hine'v. Trevor. 4 Wallace, 427, The Moses Taylor. 12 Howard, 459, Gennessee Chief. 22 Howard, 243, Sinnot, &c. v. Davenport. 2 Hilliard on Torts, section 9, page 292. Benedict’s Admiralty, sections 317, 391.
71 Ky. 172Uhrig v. Horstman (1871)
1. Goods acquired by the wide are the property oe her husband. — A married woman carried on the business of buying and selling goods, and obtained credit in her own name, as a feme, sole, by and with the knowledge and consent of her husband. This action was brought by a creditor of the wife to subject the goods held by her to the payment of his debt. A personal judgment was not sought against her. Held, that the goods thus acquired by the wife were the property of the husband, and subject to execution against him; that he was personally liable for debts created by the wife in purchasing the goods. The several judgments of the chancellor in overruling the wife’s demurrer to the plaintiffs’ petition, placing the goods in the hands of a receiver, and subjecting them to sale by a commissioner, are all reversed. 2. Rights oe married women to thetr personal earnings must he regarded as fixed by statute in this state. 3. A MARRIED WOMAN MAY BE AUTHORIZED TO TRADE, SUE AND BE sued, etc., AS A feme sole, by a chancellor, on her petition, in the cases provided for in section 4, article 2, chapter 47, Revised Statutes (2 Stanton, 12); and on the joint petition of husband and wife, as provided in the act of February 14, 1866 (Myers’s Supplement, ..page 728.) 4. It is not within the power of the husband by mere assent, or even by an express agreement, to convert his wife’s earnings, or the profits of. any trade or business he may permit her to carry on, into separate estate, to be used and enjoyed by her to his exclusion. 5. The wife can only be empowered to acquire such an estate from such sources by a court of chancery; and the husband’s consent thereto, when necessary, must be given of record in that court. 6. Such powers are in derogation of the marital rights, and the legislature has wisely provided that the wife’s right to exercise them must be conferred upon her by a chancellor, and made a matter of public record. 7. Separate estate eor a married woman may be created in this state by devise, deed of conveyance, sale,- or gift in writing or parol by a third party. The husband may permit his wife to set, apart the proceeds of her general estate to her own separate and exclusive use; or he may by an ante-nuptial agreement or post-nuptial settlement, properly executed, and free from fraud as to creditors, give to her a portion or all of his own estate, to be so held and enjoyed by her.
71 Ky. 179Louisville Chemical Works v. Commonwealth (1871)
1. A motion for a new trial suspends the judgment until the motion is disposed of. (Reynolds v. Horine, 13 B. Monroe, 234.) 2. An appeal can not be prosecuted until after the motion for a new trial has been disposed of. 3. “The appeal shall be prayed during the term at which the judgment was rendered,” etc. This provision of section 343 of the Criminal Code, in cases where a motion for a new trial is required, refers to the term at which the judgment is rendered overruling the motion for a new trial. 4. Erroneous instruction to the jury as to weight of testimony. — “Where there is a conflict in the testimony of witnesses, the one side being of an affirmative and the other a negative character, the affirmative character of the testimony is preferred, and is entitled to the greater weight by the jury in making up their verdict.” Held, that the foregoing instruction contains a mere abstract principle of law, and in this case was misleading and should not have been given.
71 Ky. 184Louisville, Cincinnati & Lexington Railroad v. Mahan (1871)
1. A RAILROAD COMPANY IS NOT LIABLE EOR UNCLAIMED BAGGAGE WHICH AYAS DESTROYED BY THE BURNING OE THE DEPOT.— Arriving at Ms destination at lialf-past eight P. m., the passenger left his baggage in the custody of the agent of the company, and during the same night the depot and contents, including the baggage, were destroyed by fire. Held, that in order to make the company liable for the baggage so destroyed it was incumbent on the owner to show that the fire was the result of such negligence on the part of the employees of the company as would render liable a bailee for hire. 2. Railroad companies are liable as common carriers eor the baggage oe passengers until the baggage is ready to be delivered to the owner at. Ms place of destination, and until he has had a reasonable opportunity of receiving and removing it. (Jeffersonville Railroad Company v. Cleveland, 2 Bush, 473; Redfield on Railways, section 171, subsection 3.) 3. What constitutes such reasonable opportunity for removing the baggage is a mixed question of law and fact, necessarily dependent upon the peculiar surroundings of each particular case. 4. The passenger, arriving at his destination at half-past eight p. m., had no right to prolong the short and rigid liability of the company of a common carrier by leaving his baggage in the possession of its agents during the night. 5. If the baggage is not claimed and received in a reasonable time, it is the duty of the company, after giving the. passenger a reasonable opportunity to claim and receive his baggage, to store it in some safe place until called for. 6. But the company holds the baggage when so stored as a warehouseman and not as a common carrier. (Redfield on Railways, section 171, subsection 3; Roth v. Buffalo & State Line Railroad Company, 34 New York, 548.) 7. The schedule filed with the petition and made part thereof is essentially a part of the case, and the jury had the right to regard the statement of facts therein contained as admissions upon the part of the plaintiff.
71 Ky. 187Moss v. Meshew (1871)
1. Sale oe timber-trees does not pass the title until they are MARKED OR DESIGNATED SO AS TO IDENTITY THEM. 2. A sale of timber-trees upon vendor’s land, in a number sufficient to make forty thousand staves, did not pass tbe title to any particular trees, nor give to the purchaser the right to enter and cut the timber without the consent of the vendor. 3. A sale of all tbe timber upon the vendor’s land, to be cut on a particular part of the farm, suitable to make staves, does not pass the title until the trees are marked and designated so as to identify them. 4. When the trees sold are not so identified the vendor may maintain an action of trespass against the vendee or his assignees for entering upon his land and cutting and removing tiipber without Ms consent.
71 Ky. 193Hyatt v. Bank of Kentucky (1871)
Case 38 — PETITION— APPEAL PROM JEFFERSON COURT OE COMMON PLEAS. CITED Story on Conflict of Laws, sections 299, 265. Story on Bills, sections 381, 390. Civil Code, section 153. 14 B. Monroe, 395. 3 Metcalfe, 197. 18 B. Monroe, 229. 3 Metcalfe, 301. 2 Duvall, 108, Graves v. Tilford. 6 Peters, 134, Lessee of Sicord v. Davis. 10 B. Monroe, 88, Dudley v. Price’s administrator. 4Bush, 82, Morgan v. Bank of Louisiana. 4 Bush, 268, Carlisle v. Chambers. 4 Metcalfe, 299, Short & Co. v. Trabue & Co. 7 B. Monroe, 577, Goddin v. Shipley. 14 B. Monroe, 558, Young v. Harris. 15 Indiana, 38, Hunt v. Standart. 2 Strange, 733, Burrows v. Jemino. 5 J. J. Marshall, 475-81, Sneed v. Ewing and wife. 13 Howard, 218, Miller v. Austin. 17 B. Monroe, 645, Piner v. Clay. 2 Scammon, 465, Holbrook v. Vibbard. 4 Devlin’s Law Reports, 122, Hatcher v. McMorim. 7 Ala. R. (N. S.) 120, Lowry’s adm’r v. Western Bank Ga. 2 Kelly, 168, Cox v. Adams. 1 Ad. & L. (N. S.) 43, Rothchild v. Currie. 6 Massachusetts, 157, Grimshaw v. Bendar. 8 Blackford, 41, Shanklin v. Cooper. CITED Wheaton’s International Law, 392, 6th edition. Story on Bills, section 365. Parsons on Notes and Bills, 531. Civil Code, sections 111, 146. 11 Indiana, 233, Haven v. Talbott. 4 Bush, 268, Carlisle v. Chambers. 7 B. Monroe, 575, Goddin v. Shipley. 4 Metcalfe, 300, Short & Co. v. Trabue & Co. 14 B. Monroe, 558, Young v. Harris. 1 Sallceld, 285, Price v. Earl of Torington. 2 Sallceld, 690, Pittman v. Maddox. 10 East. 109, Higham y. Ridgway 3 Camp. 379, Hagedon v. Ried. 3 Camp. 305, Pritt v. Fairclough. 3 B. & Ad. 898, Doe v. Turford. 1 Starkie on Evidence, 315-318. 1 Greenleaf on Evidence, section 116. 4 Howard (Miss.) —, Barnard v. Planters Bank. 15 Massachusetts, 380, Wesh v. Barrett. 8 Wheat. 326, Nicolls v. Webb. 5 Howard (Miss.) 179, Ogden v. Glidewell. 5 Howard (Miss.) Bodly v. Scarborough. 9 B. Monroe, 611, Bank of Tennessee v. Smith. 1 Benjamin (N. C.) 609, Poole v. Dicas. 2 Wendell, 369, Butler v. Wright. 15 Connecticut, 206, New Haven Co. Bank v. Mitchell. 4 Hill, 123, Shildon v. Benham. 4 Alabama, 306, Batre v. Simpson. 14 Alabama, 63, Brown v. Steele. 1 Smith’s Leading Cases (6th American edition), 499. 1 Gall. 304, The Rapid. 16 Johnson, 438, Griswold v. Wadding-ton. 1 Kent’s Commentaries, page 68, section 3. 1 Bos. & Pul. 296, Farmer v. Russell. 2 Phillips’s Chancery Reports, —, Sharp v. Taylor. 2 Wallace (S. C.) 78, Brook v. Martin. 11 Wheaton, 258, Armstrong v. Toller. 4 Bush, 82, Morgan v. Bank of Louisville. 11 Indiana, 323, Havens v. Talbott. 13 B. Monroe, 404, Hord v. Chandler. 6 Bush, 34, Bonney, &c. v. Reardon, &c. 10B. Monroe, 87, Price v. Dudley. 6 Peters’s South Carolina Rep. 134, Lessee of Sicord v. Davis. 1 Ad. El. (N. S.) 43, Rothchild v. Currie.
71 Ky. 201Leach v. Duvall (1871)
1. Conveyance befojie marriage in fraud of marital rights.— Tlie conveyance of the whole or a valuable part of his estate by the intended husband without the knowledge of his intended wife, after the agreement to marry had been entered into, and upon the eve of its consummation, must be regarded in equity as a fraud on her marital rights, and consequently not binding on her. (McAfee v. Ferguson, 9 B. Monroe, 475; Koper on Husband and Wife, 163.) 2. Ten days before the marriage, without the knowledge of the intended wife, and after the agreement to marry had been entered into, the intended husband conveyed land to bis children by a former marriage in consideration of natural love and affection. Held, that such a voluntary conveyance was binding on the husband, but that it was a fraud upon the marital rights of the wife, and inoperative and void so-far as it might operate to. deprive her of her potential right of dower in the land so conveyed; that the grantees are entitled to the land subject to her prospective rights aforesaid. 3. Want or capacity and undue inrlubnce. — See opinion for facts of a case on which the court refused to set aside a conveyance of land on these grounds.
71 Ky. 206Judge of Campbell County Court v. Taylor (1871)
Case 40 — PETITION EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT. CITED 13 B. Monroe, 32-38, Slack, &e. v. Maysville & Lexington R. R. Co. 2 Marshall, 606, Talbot v. David. 12 Monroe, 244, Graham v. Blunt. 6 B. Monroe, 146-169, Gorham v. Luckett. 3 Bush, 147, Hoglan v. Commonwealth. 3 J. J. Marshall, 405, Taylor v. Commonwealth. 1 Dana, 449, Bruce v. Fox. 18 B. Monroe, 11, Louisville v. McKean. 11 B. Monroe, 153, Clarke v. P. W. & K. R. Turnpike Road Co. 2 Metcalfe, 56, Maddox, &c. v. Graham & Knox. Civil Code of Practice, section 120. Hardin, 145, Handley v. Russell. Washburn on Easements, chapter 1. Session Acts, 1869, p. 217. Act of March 10, 1869. Ms. Opinion, Winter term, 1869-70, Berry, &c. v. Murnan, &e. Revised Statutes, sections 15, 17, chapter 21, 1 Stanton, 262. CITED Cooley’s Constitutional Limitations, 602, 603. 2 Acts of 1867-8, page 343. 2 Acts of 1869, page 217. 7 Massachusetts, 525. 15 Massachusetts, 537. 4 Iowa, 561, State v. Young.
71 Ky. 209Shelby County Court v. Cumberland & Ohio Railroad (1871)
1. Conditions annexed to the proposition to subscribe por pour HUNDRED THOUSAND DOLLARS STOCK IN THE CUMBERLAND & OHIO Raildoad Company, submitted to and voted for by a majority of the qualified voters of said county, wore as follows, to-wit: First, that the road should pass through or within, six hundred yards of the corporate limits of Shelbyville. Second, that the subscription should not be made until it should be made to clearly appear to the county court that said company had secured a bona fide subscription to its capital stock sufficient with that to procure the right of way, grade, and execute the masonry of the road from its northern terminus to the Tennessee line. Third, that the stock taken by Shelby County should, as far as necessary, he used in that county in procuring the right of way, in grading, and the necessary masonry for the road-bed. . Fourth, that before said subscription should be made by the county court, or the bonds delivered in payment thereof, the president and directors of said company should by an order of its board direct the county court to issue and deliver one hundred thousand dollars of said bonds to the Shelby Comity Railroad, to he used in Shelby County in extending the Shelby Railroad east of Shelbyville. In a proceeding to compel the Shelby County Court by mandamus to issue bonds in pursuance of tbe popular vote of said county on the conditions set forth in the submission: Held, If it be true that the adoption of either of said four conditions, which were mainly intended as safeguards, could prejudicially affect the rights of any citizen of Shelby County, they were nevertheless legal and authorized by the charter, unless rendered illegal by some other cause than that now under consideration; and especially so, as the conditions are consistent with the general object and purposes of the corporation, and not expressly or impliedly inconsistent with any of the provisions of its charter. The proposition under the fourth condition above was not a double proposition for a subscription by the county for stock in each of the two railroads, but for a single subscription of four hundred thousand dollars stock in the Cumberland & Ohio Railroad Company. Its acceptance involved a pledge to invest one hundred thousand dollars of it in stock in the Shelby Railroad, which it was authorized to do under its charter independent of said condition. 2. A SUBSCRIPTION FOR STOCK WITHOUT LEGISLATIVE AUTHORITY, as a general rule, may be rendered valid by an act of the legislature confirming it. (Pierce on American Railroad Law, 124; City of Bridgeport v. Housatonic Railroad Company, 15 Conn. 475.) 3. County and municipal subscriptions for stock in railroads affording peculiar local benefits to the people affected by such subscriptions, when made in pursuance of legislative authority, may now be regarded as of unquestionable constitutionality, in view of the numerous and uniform decisions of this court sustaining them. 4. Law authorizing the subscription must be complied with.— In all essential particulars the provisions of an act authorizing a municipal corporation to subscribe for stock in a railroad company, and to issue its bonds in payment thereof, must be complied with, and if not followed the bonds will be void unless the defect is cured by subsequent legislation. (Pierce on American Railroad Law, 123; Winchester and Mt. Sterling Turnpike Road Co. v. Clark County Court, 3 Metcalfe, 140.) 5. The exact line and precise terminal points of the road are not fixed by the charter of the Cumberland & Ohio Railroad Company, but they are held to be substantially and sufficiently designated by the provisions of the charter quoted in the opinion. 6. Mandamus is the appropriate remedy in any coercive proceedings against a county court to compel the issue of bonds in pursuance of county subscriptions. 7. Judgment of the county court can not be questioned in a collateral proceeding. — The correctness of the judgment of the county court, that the conditions of the propositions voted for had been complied with so far as to authorize the subscription for the stock in the railroad company, can not be questioned in a proceeding in the circuit court to compel the county court by mandamus to issue the bonds of the county.
71 Ky. 220Commonwealth v. Cook (1871)
1. A SHERIFF DID NOT VACATE HIS OFFICE AND BECOME INELIGIBLE THERETO BY FAILING TO EXECUTE HIS OFFICIAL BOND WITHIN ONE MONTH AFTER THE FIRST MONDAY IN JANUARY. — In this case tile bond executed February 11, 1867, is held to be binding on the sureties therein. 2. Homestead exemption act does not apply to the state. — In this case the homesteads of the sureties of a sheriff are subjected to an execution in favor of the state, which issued on a judgment rendered against the sheriff and his sureties for public dues. 3. The commonwealth is not embraced by an act which is made to operate between individuals, unless there is something in the act which shows an intention to subject the state to the same rule. (Divine v. Harvie, 7 Monroe, 443; United States v. Knight, 14 Peters, 315; State v. Garland, 7 Iredell’s N. C. Reports, 50.) 4. As the government of the state is established for the good of the whole, and can only be supported by means of its revenues, courts in the construction of general laws will not ordinarily apply to the state such as upon their face seem to have been intended only to declare or regulate the rights and remedies of individuals, and which if so applied would have the effect of obstructing the speedy collection of the public dues. 5. The act of February 10, 1866, exempting homesteads from execution, is general in its application, was intended to operate in transactions between individuals, and nowhere refers directly or indirectly to the state. 6. Nor can said act be made to apply to the state by implication, because it would divest the state of a right, and repeal by implication the statute (section 6, article 8, chapter 83, Revised Statutes) which subjects to the payment of judgments, in the name of the commonwealth, against sheriffs and other public collectors, and their sureties, heirs, etc., “ the estate, legal and equitable, of all the defendants to said judgments.” 7. Pleadings will be construed most strongly against the pleader. 8. Pleas should aver facts, not conclusions of law. 9. The presumption will be indulged that the county court, in a matter over which it had jurisdiction, conformed substantially to the statute regulating its proceedings.
71 Ky. 229Emmerson's administrator v. Herriford (1871)
1. An ordinary judgment can only be annulled or modified by A subsequent proceeding for some matter of defense which has arisen or been discovered since the judgment was rendered. 2. The defendant may after judgment, by appropriate suit, assert any cause of action he may have had against the plaintiff, notwithstanding the fact that he might have used such cause of action as a setoff or counter-claim to prevent the recovery against him, but failed to do so. (Chinn v. Mitchell, 2 Metcalfe, 92; Ross v. Ross, 3 Metcalfe, 274; Moss v. Rowland’s executor, 1 Duvall, 321.) 3. A DEVASTAVIT MAY BE SHOWN WITHOUT A RETURN OF NULLA bona. — If an executor or administrator has assets in his hands sufficient to pay a judgment when rendered ascertaining the amount of the demand against the estate, it is his duty to do so without awaiting the issual of an execution, and if he fails to do so, the creditor may proceed by an action on his bond without further . proceedings upon the judgment. (Hobbs, &c. v. Middleton, 1 J. J. Marshall, 228; McCalla’s administrator v. Patterson, 18 B. Monroe, 201; Lee v. Waller, 3 Metcalfe, 61.) 4. Without the return of a nulla bona upon the judgments against the administrator in this case, the plaintiff was entitled to a recovery on the administration-bond upon proof of assets in the hands of- the administrator which should have been applied to the payment of said judgments. 5. Property obtained fraudulently by the administrator from his intestate before his death is subjected and held to be assets in the hands of the administrator.
71 Ky. 238Taylor v. Monohan (1871)
Case 44 — FORCIBLE ENTRY AND DETAINER APPEAL prom jeeeerson court op common pleas. CITED Act of January, 15, 1867, 1 Session Acts, page 5. 1 Duvall, 151, Powers v. Sutherland. 2 Metcalfe, 419, Tucker v. Phillips. 5 Monroe, 18, Prewitt v. Durham. 3 Bibb, 74. 1 Session Acts, 1853-4, page 56. 5 Dana, 125. 2 Session Acts, 1869, page 19. 10 B. Monroe, 50. CITED Civil Code, sections 500, 502, 509. 3 Littell, 397, Wall v. Nelson. 4 Metcalfe, 308, Belcher v. Barrett. 1 Duval], 153, Powers v. Sutherland. 4 Bibb, 426, Henry v. Clark. 14 B. Monroe, 47. 4 Bibb, 388, Brownfield v. Reynolds. 3 Marshall, 344. Dana, 433, Stitb v. Jones. '4 Bibb, 312. 3 Littell, 297, Moore v. Massie. 4 Bibb, 192. 3 Littell, 186, Mattox v. Helm, 1 J. J. Marshall, 38.
71 Ky. 241Williams v. Williams (1871)
1. A TRUST WAS CREATED BY PURCHASING LAND AT EXECUTION SALES UPON A VERBAL AGREEMENT BETWEEN THE OWNER AND THE purchaser that the purchaser would hold the land as security for the money advanced and interest, and that the owner should have the right to redeem. 2. Acquiring and holding the legal title to land by purchasing at execution sales and otherwise, under a verbal agreement between the owner of the land and the purchaser that the land and title should be held as a security for moneys advanced and interest thereon, and that the owner should have the right to redeem the land, created a trust which is enforced. 3. In this case the purchaser held the legal title to the land about fifteen years before the suit was brought in which the trust was established and enforced against him on his verbal agreement to hold the land and permit its redemption, etc. See opinion for a full statement of the facts and evidence establishing the trust. 4. Time for redeeming land sold under execution being extended beyond one year by the purchaser, he is entitled to ten per cent, interest per annum for one year only. In such a ease interest should be calcu_ lated at the rate of ten per cent, per annum for one year, and after adding that to the principal interest should be calculated thereafter at the rate of six per cent, per annum.
71 Ky. 256Churchill v. Reamer (1871)
Case 46 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED 2 Metcalfe, 332, Johnson v. Johnson. 3 Marshall, 291, Moseby v. Corbin. 4 Monroe, 205, Moore’s heirs v. Howe’s devisee. 12 B. Monroe, 71, Northcut v. "Whipp. 12 B. Monroe, 642, Carroll v. Carroll. 14 B. Monroe, 323, McKay v. Merrifield. 2 Metcalfe, 334, Johnson v. Johnson. 10 B. Monroe, 56, Prescott v. Prescott. 10 B. Monroe, 94, Black v. Cartmell. Revised Statutes, section 9, chapter 30. Revised Statutes, section 10, chapter 80. CITED Revised Statutes, section 9, chapter 30. 10 B. Monroe, 94, Black v. Cartmell.
71 Ky. 262Hiram v. Griffin (1871)
1. A WILL MADE BY A MARRIED WOMAN LIVING SEPARATE AND APART erom her husband, disposing of land conveyed to her by a deed not technically such as by itself to constitute a separate estate, is sustained and established — the estate being otherwise held to be impressed with the character of separate estate. 2. See opinion for a full statement of the facts and circumstances of this case, showing that the wife held the land as separate estate, having purchased it with the proceeds of her separate estate, and had the right to dispose of it by will, although conveyed to her by an ordinary deed, using none of the words necessary to constitute it technically a separate estate. 3. A gift of a house and lot and fifteen hundred dollars in money made by the husband and accepted by the wife, in contemplation of his continued abandonment of her, had the effect of placing said property beyond his control, and vesting it in his wife for her separate use, and impressed it with the character of separate estate. 4. It was not essential to render such a provision effectual that a third party should have intervened as a trustee for the wife. (Tyler on Infancy and Coverture, 471.) 5. Separate estate being sold, and the proceeds reinvested from time to time, the character of the consideration paid attached to the property thus acquired, and continued to exclude the marital rights of the husband. 6. A liberal construction will be given to the statute conferring on married women the right in certain cases of disposing of their separate property by will, with a view to effectuating the manifest objects of the law.
71 Ky. 269Carr's v. Robinson (1871)
Case 48 — PETITION— APPEAL PROM PAYETTE CIRCUIT COURT. CITT3D Myers’s Supplement, pages 295, 424-429, 750-752. Session Acts, 1828-29, page 85. Angelí & Ames on Corporations, section 110. Smith’s Mercantile Law, page 141. Civil Code, section 33. Act of 2 and 3 William IV., chapter 115. 1 Smith’s Leading Cases, part 2, page 888. 4 Hurlst. & Norm. 273, Goodman v. Cully. 4 Hurlst. & Norm. 377, Edwards v. Cully. 2 Tounge & Collier, 676, Greenfell v. Girdlestone. 4 Sandford, 427, Bloodgood v. Bruen. 4 Selden, 362. 4 Bibb, 246. 1 Monroe, 209, Gore v. Beck. 2 Parsons on Contracts, 516, edition of 1864. 3 Parsons on Contracts, 103, edition of 1864. 2. Marshall, 286, Pollard v. Yoder. 3 Story’s Reports, 336. 9 B. Monroe, 44, Egbert v. McMichail. 8 B. Monroe, 7, Graham v. Hunt. 6 Bush, 375, Hopkins, &c. v. Stout. 4 Metcalfe, 73, Chiles, &c. v. Monroe. 1 Bush, 140, Gibson v. Belcher. '2 Metcalfe, 292, Berry & Johnson v. Ransdall. 2 Bush, 231, Lockhart v. Yeiser & Co. 4Bush, 538, Vandiver, &c. v. Hodge, adm’r. 6 Bingham, 258, Towler v. Chatterton. 7 Eng. Chancery, 341. 7 Eng. Chancery, 88. 2Mylne & Keen, 221, Bradshaw v. Tasker. 1Adol. & Ellis, 338, Ereeman v. Moyes. 1 Duvall, 349, Thornton, &c. v. McGrath. 2 Duvall, 508, Woodcock v. Bowman. 1 Bush, 607, Pettit’s adm’r v. Johnson. 4Connecticut, 226, Goshen v. Stonington. 6 Connecticut, 58. 7 Connecticut, 319, 551. 3Dallas, 386. 2 Peters, 380. 8 Peters, 88. 7 Met. (Mass.) 389. 3Denio, 173. 7 Watts, 300. 11 Peters, 420. 17 Howard, 610.' 16 Barbour, 188. 10 Serg. & Rawle, 97. 16 Serg. & Rawle, 35. 16 B. Monroe, 296. 18 B. Monroe, 389. 18 B. Monroe, 781. 10 Exchequer, 333, 341, Badger v. Arch. 10 B. Monroe, 155, Carson v. Osborn. CITED Dev. & Batt. 70, Powell, administrator v. Guy. Broom’s Legal Maxims, page 238. 5 Bush, 579, Walker and wife v. Sayres and Hopkins. 3 Metcalfe, 68, Coleman v. Walker. 6 Bush, 375, Hopkins, &c. v. Stout. 1 American Leading Cases, 499. 5 Humphrey, 406, Rollman, adm’r v. Baker. 4 Monroe, 445, Jennings v. Anderson. 2 Blackstone.
71 Ky. 277Louisville & Nashville Railroad v. Buckner (1871)
Case 49 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. CITED Wheaton’s Int. Law, by Dana, secs. 545, 546, and note 169. Coke upon Lyttleton, section 412. 2Dallas, 102, Hoar v. Allen and tenants. 2 Dallas, 132, Foxeraft & Galloway v. Nagle. 1 Peters’s C. O. R. 524, Conn v. Penn. 3 Wash. C. C. R. 403, Denniston, &c. v. Imbell. 4 Wheaton, 246, United States v. Rice. 9 Howard, 663, Fleming v. Page. 3Phillimore’s International Law, page 734. 16 Howard, 164, Cross v. Harrison. CITED Wheaton, Lawrence’s, 520, 522, part 4, chapter 1. Vattel, book 3, chapters 12, 18. Broom’s Legal Maxims, 140. Civil Code, section 364. Croke’s Elizabeth, 684, Brock v. Phillips. Lord Raymond, 282, Wills v. Wilkins. Douglas Reports, 592. Princip de Derecho Internacional, chapter 10, page 267. Law Register, 1862, page 498, Amy Warwick. 2 Wildman on International Law, page 9. 3 Phillimore, 733. 2 Black, 686. 4 Bush, 363, Crutcher v. Hord. 2 Duvall, 426, Jackson v. Speed. 1 Bush, 404, Bell v. Louisville & Nashville R. R. Co. 1 Bush, 387, Price v. Poynter. 2 Duvall, 502, Christian County v. Tharp. 1 Metcalfe, 450, Terrill v. Jennings. 3 Metcalfe, 37, Russell v. Marks. 2 Metcalfe, 558, Letton v. Young. 4 Metcalfe, —, Norris v. Doniphan. 2 Bush, 299, Leathers v. Commercial Insurance Co. 1 Riquelme, 172. 17 B. Monroe, 470. 1 Johnson, 208, Broadwell v. Weeks. 7 Bush, 179, New York Life Ins. Co. v. Clopton, &c. 1 Vertrees, 417. 1 Kent, 93. 2 Duvall, 353, Ex parte Tenny. 12 B. Monroe, 28, March v. Commonwealth. 14 L. J. Chan. 246, St. Victor v. Devereux. 41 Elizabeth Roll, 1704, Easter Term. 19 Johnson, 141, Buchanan v. Curry. 10 Johnson, 183, Clark, Mory & Bell v. Chapman. 10 Mod. Rep. 79, East India Co. v. Sands.
71 Ky. 283Carpenter v. Carpenter (1871)
1. A VERBAL AGREEMENT AT THE TIME OP THE EXECUTION OP THE deed, that the grantor was to hold possession of the land during his life, may he enforced in equity. 2. Possession of the grantor after making a conveyance, with a verbal agreement that he was to hold possession of the land during his life, was not adverse to the grantee. 3. By the deed and agreement the grantor is estopped from setting up an adversary title. 4. Limitation will not run in pavor op a grantor remaining in possession under a verbal agreement after he has executed a deed for the same land with warranty of title. His possession is not adverse. 5. Incapacity to make a deed resulting prom epileptic pits being temporary. — In such a case, as to capacity or incapacity to make a deed, the issue is, was the grantor at the time he executed the deed, or at the time he acknowledged it before the clerk, of sound mind, and with capacity to understand and comprehend what he was doing when he executed the deed or acknowledged it. Erroneous instructions given by the circuit court on both sides on this issue are quoted and criticised in the opinion in this case. 6. Where insanity is clearly established, and a party adjudged to he a lunatic, or his incapacity arises from mania, the .presumption of law is that this condition of mind continues, and the party relying on the validity of a writing executed by another whose insanity is established prior to its execution must show that it was executed during a lucid interval, or that the insanity had ceased to exist. 7. The presumption of incapacity does not apply to a case like this, where the paroxysms or fits were periodical and the grantor generally recovered from them in a few days. 8. Where the diseased condition of the mind is temporary, continued insanity or want of capacity is never presumed. (Redfield on Wills, 92.) 9. Declarations made by the grantor remaining in possession after he had executed the deed, in relation to the manner of his holding and the character of his title, are incompetent as evidence against the grantee unless such declarations were made in the presence of the grantee.
71 Ky. 290Chinn's administrator v. Harrodsburg Savings Institution (1871)
Case 51 — REVIVOR OF REPLEVIN-BONDS APPEAL PROM MERCER CIRCUIT COURT. CITED Civil Code, secs, 2, 3, and 437, amendment of Jan. 19, 1866* 1 Morehead & Brown’s Statute Laws, page 90. 4 J. J. Marshall, 286. 9 B. Monroe, 97. 1 Monroe, 9Q. 1 Monroe, 249. 1 Monroe, 266. CITED 7 Bush, 539, Savings Ins. of Harrodsburg v. Chinn’s adm’r. 5 Bush, 538, Burge’s adm’r v. Brown, &c. 3 Metcalfe, 4, Commonwealth v. Runnion & Hay. Civil Code, section 437. Revised Statutes, section 1, article 12, chapter 36.
71 Ky. 292English's administrator v. Cropper (1871)
A surviving wipe is A competent witness in behalf of the administrator of the estate of her deceased husband, when she is not interested in the result of the suit, to prove facts which came to her knowledge during the life of her husband, but not by reason' of her confidential relations with him as his wife.
71 Ky. 294Dorsey v. Kendall (1871)
Case 53 — PETITION— APPEAL PROM HARDIN CIRCUIT COURT. CITED 3Statute Laws, Loughborough’s, pages 244, 245. 8 B. Monroe, 102, Benningfield v. Lead. 9 Dana, 273, Shackleford v. Miller. CITED Act of Feb. 20, 1830, Loughborough’s Statutes, pp. 240, 241. Civil Code, sections 479, 371. 2 Parsons on Contracts, 799, 801. 4Littell, 269, Pees v. Carter’s heirs. 7J. J. Marshall, 374, Smith’s executor v. Bryant’s executor. 1 J. J. Marshall, 405, Ballard v. Davis. 7 J. J. Marshall, 438, Triplett v. Gill. 7 J. J. Marshall, 225, Garret v. Beatty. 4 B. Monroe, 568, Taylor’s heirs v. Watkins. 6 Marshall, 413, Hammon v. Pearl. 5 Dana, 523. 2 Marshall, 241. . 5 Monroe, 450, Parker’s heirs v. Anderson’s heirs. 4 Bush, 161, Damage v. Clements. 5 Monroe, 242, Lee v. Colston. 2 J. J. Marshall, 191, Davis v. Harrison. 6 J. J. Marshall, 197, Green v. McKinney’s heirs. 1 Greenleaf on Evidence, sections 25, 26. 3 Marshall, 43, Moore v. Farrow.
71 Ky. 300Mercer County Court v. Kentucky River Navigation Co. (1871)
Cases 54, 55 — PETITIONS FOE MANDAMUS APPEALS PROM MERCER AND GARRARD CIRCUIT COURTS. CITED Constitution of Kentucky, section 36, article 2; section 3, article 13; section 33, article 4; section 14, article 13; section 37, article 2. Bill of Bights, section 14. Act of March 1, 1865, incorporating the Kentucky Biver Navigation Company; act of February 16, 1869, 1 Session Acts, page 33. Littell’s Statutes, 366. Hardin’s Reports, 258. Revised Statutes, article 19, chapter 27. .
71 Ky. 326Miller v. Hepburn (1871)
'Accretions on the bank oe the Ohio River — How apportioned. — Riparian, proprietors of lots originally fronting on the Ohio River are entitled to the land added thereto by accretion, to be ascertained by extending the original river frontage of the respective lots as nearly as practicable at right-angles with the course of the river to the thread of the stream. See opinion for an illustrative diagram showing the application of the principle of the decision in this case.
71 Ky. 334Graham v. Graham (1871)
Case 61 — PETITION EQUITY APPEAL FROM TAYLOR CIRCUIT COURT. CITED Revised Statutes, section 1, article 1, chapter 86.
71 Ky. 336Tracy v. Hornbuckle (1871)
1. Money due a common-school teacher can not be attached in the hands of the school commissioner. Funds due from the state to one of its employees can not be reached in the hands of a public officer by an attachment or garnishee. 2. Transcript eor Court oe Appeals not indexed by the circuit clerk.- — Held, that inasmuch as the clerk of the circuit court failed to index this record, no fee should be taxed in his favor for making out the transcript.
71 Ky. 337Underwood v. Dickinson (1871)
1. Fees and allowances to master commissioners, etc. —“No master or other commissioner or auditor shall receive more than three dollars per day, except by the consent of parties, for each day he shall be necessarily engaged in the business of his station, to be ascertained by his oath and other evidence.” (Section 4, chapter 65, Revised Statutes, 2 Stanton, 140.) 2. J\To allowance can be properly made to a master commissioner unless he presents a statement of the number of days he has been necessarily engaged in the business, with his claim sworn to by himself before • some officer authorized by law to administer the oath; and then the claim must be further sustained by other evidence, unless that be dispensed with. This is to be done unless the allowance is made ■ by consent of the parties. 3. The mere expression of an opinion, in a statement produced and filed, by three persons to whom the court referred the matter of the allowance to the commissioner, that in their opinion a specified amount would be a reasonable allowance, is not that character of evidence contemplated by the statute. 4. Unless the commissioners pursue the mode pointed out by the statute, any judgment for an allowance to them will be erroneous, and this court, when the judgment thus obtained is appealed from, must • reverse. 5. Circuit courts have jurisdiction to make proper allowances to cominissioners without special notice to the parties.
71 Ky. 343Cavin v. Williams (1871)
Case 6L-PETITIOU EQUITY APPEAL FROM DAVIESS CIRCUIT COURT. CITED 2 Duvall, 540, Ruby v. Grace. CITED Ms. Op., December, 1857, Noe v. Dougherty. Ms. Op., January, 1856, Ready v. Smith. 4 Metcalfe, 880, Jenkins v. Smith.
71 Ky. 348O'Bannon v. Louisville, Cincinnati & Lexington Railroad (1871)
Case 65 — PETITION— APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. CITED Myers’s Supplement, act of May 31, 1865, page 295. Revised Statutes, chapter 63. Session Acts, 1855-6, page 314. Constitution of Kentucky, section 37, article 2. Constitution of Kentucky, section 1, Bill of Rights. Cooley on Constitutional Limitations, pages 142, 143. Act of March 10,1854, 2 Stanton, 510. Locke on Civil Government, section 142. 2 Met. 220, Phillips v. Covington & Cincinnati Bridge Co. 3 Metcalfe, 146, Chiles v. Drake. 2 Met. 165, Louisville & Oldham Turnpike Co. v. Ballard. 7 Met. (Mass.) 393, Davidson v. Johonnot. 3 Greenleaf’s Reports, 326, Lewis v. Webb. 5 Bush, 303, Commonwealth v. Pointer. 11 Massachusetts, 396, Holden v. James. CITED Constitution of Kentucky, art. 2, sec. 3; art. 13, sec. 1. Revised Statutes, section 23, chapter 21. Revised Statutes, section 2, article 3, chapter 63. Act of March 10, 1854, 2 Stanton, 510. Act of February 23, 1856, Session Acts, 1855-6, page 314. Act of March. 15, 1862, Myers’s Supplement, 292. Act of February 20, 1864, Myers’s Supplement, 298. Act of May 81, 1865, Myers’s Supplement, 295. Act of February 2, 1866, Session Acts, 1865-6, p. 259. Act of February 8, 1870, Session Acts, 1869-70, p. 243. 4 Littell, 428, Weir v. Bush. 2 Met. 183, Louisville & Frankfort Railroad v. Ballard. 2 Met. 168, Louisville & Oldham Turnpike Co. v. Ballard. 4 Met. 74, Chiles v. Monroe. 3 Bush, 149, Louisville & Nashville Railroad Co. v. Wainscott. 5 Bush, 302, Commonwealth v. Pointer. 14 B. Monroe, 75, Louisville & Frankfort Railroad v. Milton.
71 Ky. 354Rutledge v. Vanmeter (1871)
Case 66 — PETITION EQUITY APPEAL FROM CLARK CIRCUIT COURT. CITED Ms. Op., September 21, 1871, Oheekes v. McCoy. 4 Metcalfe, 30, Bondurant v. Apperson. 6 B. Monroe, 141, McGrath v. Balser. 1 Metcalfe, 397, Short v. Tinsley. CITED Act of March 10, 1856. 2 Met. 458-60, Proctor v. Conway. 15 B. Mon. 630, Harris v. Ray. 4 Met. 93, Meadows v. Turpin. 1 Morehead & Brown’s Statutes, section 27, page 300. Civil Code, sections 159, 373, 579, 581, 582.
71 Ky. 357Lester & Co. v. Given, Jones & Co. (1871)
1. The holder op an unaccepted check on bankers may maintain AN ACTION AGAINST THEM POR NON-PAYMENT ON PRESENTATION and demand, it. being made to appear that the drawer had a sufficient deposit to pay the cheek at the time it was drawn, and notice thereof given to the bankers that it was drawn upon funds in their hands belonging to the drawer. 2. The distinguishing characteristics between a checlc and an ordinary bill of exchange are fully set forth in the opinion in this cáse. 8. A check is an absolute appropriation of so much money in the hands of the banker to the holder of the check, to remain there until called for, and can not after notice be withdrawn by the drawer. 4. The holder of a check, though taken some days after its date, takes it free from all equities. 5. A check is never treated as overdue, being payable on presentation and demand. 6. A bill of exchange or promissory note taken after the date of payment, or when it is overdue, subjects the holder to all the equities attaching to it in the hands of the party from whom he reSeives it.
71 Ky. 362Mitchell v. Holder (1871)
Case 68 — PETITION EQUITY APPEAL EROM ALLEN CIRCUIT COURT. CITED Revised Statutes, section 29, chapter 106. Revised Statutes, secs. 28, 29, chap. 106, 2 Stanton, 466. Civil Code, section 519, subsection 3. Act of 1796, 1 Moreliead & Brown, section 29, page 294. Revised Statutes, chapter 58, Act of March 9, 1854. 9 Dana, 41, King, &c. v. Bullock, &c. 8 B. Monroe, .348, Singleton’s will. 2 Smith’s Leading Cases, 642. 30 B. Monroe, 474, Tilibatts, &e. v. Berry, &o. 18 B. Monroe, 260, Hughey, &c. v. Sichvell, &c. 15 B. Monroe, 563, George (of color) v. Bussing." 14 La. Annual, 552, Deslandes v. New Orleans. 6 Johnson’s Chancery, 166, Storrs & Brooks y. Barker. 20 California, 233, State v. McGlyn. 5 Little, 274, Well’s will. 6 B. Monroe, 106. 2 Story’s Equity, sec. 1546. 4 Mon., 152, Wells’s will. 5 Mason, 334. 2 Peters, 157. CITED Revised Statutes, chapter 106, 2 Stanton, 557. 6 Bush, 530, Foster y. Shreve, &c.
71 Ky. 366Young v. Commonwealth (1871)
Case 69 — INDICTMENT— APPEAL PROM LYON CIRCUIT COURT. CITED Criminal Code, sections 247, 226, 245, 267. Myers’s Supplement, page 78. CITED Criminal Code, sections 334, 247, 372. 1 Metcalfe, 10, Tipper v. Commonwealth. 3 Bush, 481, Hopkins v. Commonwealth.
71 Ky. 373Jenkins v. Jackson, Loving & Co. (1871)
1. Estate subject to an ordinary execution can not be levied on and sold under an attachment issued under the provisions of “ an act to authorize creditors in certain cases to garnishee before judgment and return of no property,” approved March 15, 1870. 2. Said act contemplates no other proceeding than to subject the equitable estate of the debtor — viz., money, choses in action, or other equitable interest — which could not be levied on and sold under an ordinary execution.
71 Ky. 378Hall v. Commonwealth (1871)
1. The commonwealth has a lien prom the date op a sheriff's official bond upon the real estate of the sheriff then owned or afterward acquired by him, which shall not be discharged until the sheriff obtains his quietus for all the revenues and public dues he is bound for. (Section 3, article 9, chapter 83, Revised Statutes, 2 Stanton, 263.) 2. When it recovers a judgment the commonwealth also has a lien upon all the estate, legal and equitable, of the sheriff and his sureties, and their heirs, etc., who are defendants to the judgment, from the commencement of the suit till satisfied. (Sec. 6, art. 12, chap. 83, Revised Statutes, 2 Stanton, 269.) '3. The liens in favor of the commonwealth upon the estate of the sheriff, etc., originate from the execution of the bond by the sheriff as required by law. All the provisions of the statute should be strictly complied with. 4. But no such lien was created in favor of the commonwealth in this case, because the sheriff’s'bond was executed in the month of June, when the law required it to be executed in the preceding January or February. 5. A sheriff's bond executed in the month of June, when the law required it to be executed in the preceding January or February, was no statutory bond, and its execution created no lien on the estate of such sheriff. 6. A judgment in favor of the commonwealth against a sheriff and his sureties, rendered on mere motion, without any notice or service of process or appearance, is held to be void in this case, because the sheriff’s bond on which such judgment' was rendered was not a good statutory bond, as it was executed in the month of June, when the law required it to be executed in January or February. 7. A judgment without service of process or appearance is void. (Long v. Montgomery, 6 Bush, 394.) In a suit, whether prosecuted by the commonwealth or one of her citizens, in the absence of any statutory provision, the party sued must have notice by service of process, or enter an appearance, before judgment can be legally rendered against him.
71 Ky. 384Martin v. Taylor (1871)
1. A SURETY IS RELEASED BY THE INTERFERENCE OF THE EXECUTION plaintiff. — One defendant, a surety, in an execution was released from liability to pay the plaintiff, by the plaintiff ordering the return of the execution after it had been levied on sufficient property of a co-surety who had agreed to pay the whole debt. 2. Any act on the part of the execution plaintiff by which the legal rights of the surety therein were interfered with, in preventing a sale of the property levied on, operated as a release of the surety,
71 Ky. 387Commonwealth v. Branham (1871)
1. “Deadly Weapons.” — These words, as used in section 2, article 6, chapter 28, Revised Statutes, 1 Stanton, 382, are not restricted to such weapons or instruments as are made and designed for offensive or defensive purposes, or for the destruction of life or the infliction of injury. 2. “ Deadly weapon,” as used in said statute, embraces any deadly weapon with which a person may be wounded by cutting or stabbing. 3. A chisel is held to be a deadly weapon in this case.
71 Ky. 388Brewer v. Cosby (1871)
1. Growing crops not subject to execution. — The act of March 10, 1856 (1 Stanton, 558), to prevent fraudulent assignments, etc., was not designed to operate on sales of property not subject to the payment of debts not subject to execution. 2. The mortgage of a growing crop of tobacco by an insolvent debtor, when it was not subject to execution, did not operate as an assignment of all the mortgagor’s property and effects to Ms creditors under said statute of March 10, 1856. 3. A mortgage which is not made in contemplation of insolvency is not prohibited by the statute, and is valid, although it may be made to prefer one over other creditors. (Terrill, &c. v. Jennings, 1 Metcalfe, 450.)
71 Ky. 391Hathaway v. Yeaman (1871)
Case 75 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. CITED Coke upon Littleton, 1 American edition, 223, A. 4 Kent, side page, 134. • 7 Dana, 437. 1 Smith’s Leading Oases, 100-103, Dumpord’s case. 1 Jarman, on. Wills, 681.
71 Ky. 397Roots v. Merriwether (1871)
Case 76 — PETITION EQUITY APPEAL FROM THE LOUISVILLE CHANCERY COURT. (Record and Briefs in this case have been misplaced.)
71 Ky. 402Maddox v. Fox (1871)
Case 77 — PETITION EQUITY APPEAL prom mason circuit court. CITED Ms. Op., Dec. term, 1856, Lex. & Dan. R. R. Co. v. Morrissey. Civil Code, sections 474r-478, 863, 393. 18 B. Monroe, 529, Watson v. Gabby. 4 Bush, 385, Calloway v. Commonwealth. 1 Code Rep. N. S. 347, Cooper v. Clason. 16 Howard, 275, Campbell v. Foster. 2 Metcalfe, 286.
71 Ky. 404West v. Louisville, Cincinnati & Lexington Railroad (1871)
1. A PURCHASER MAY BECOME RESPONSIBLE POR THE CONTINUANCE OE A NUISANCE ERECTED BY HIS VENDOR. The alienee or grantee may become responsible for the continuance' of a nuisance either to a party originally affected by it, or another deriving title from Mm. But a purchaser of property on which a nuisance is erected is not liable for its continuance, unless he has been requested to remove it, or in some way informed that its removal is required. The injured party should be presumed to acquiesce until he requests a removal of the nuisance. ■ Knowledge of the existence of the nuisance is not equivalent to a request or notice to remove or reform it. 2. The right to abate a nuisance or to recover damages for its continuance may be barred by the usual analogous period of limitation. 3. A RAILROAD COMPANY IS LIABLE EOR DAMAGES RESULTING PROM A EAILURE TO KEEP A CULVERT UNOBSTRUCTED. The entrances of the culvert in this case were subject to the company’s control as part of its road-bed. The right of the corporation to enjoy the use of its road-bed as an easement carried with it a continuing correlative obligation to use reasonable diligence to keep the culvert unobstructed, so that detriment to the owners of the land might be avoided so far as practicable, considering the size and structure of the culvert.
71 Ky. 410Roach v. Hudson (1871)
The following opinion was not marked for publication at tbe time it was delivered, but it is now published by direction of tbe court. 1. Purchaser at decretal sale induced persons not to bid against him by giving assurance that on. tbe return of tbe absent owner be would let binr repurchase tbe property at tbe inadequate price given by tbe purchaser. Held, that if the absent owner on returning home bad sought or required, within a reasonable time, a resale of the property to him in compliance with tbe assurance given at tbe sale by tbe purchaser, and tbe latter bad refused compliance, tbe court would regard him as having held tbe property in trust, and liable to account for the difference between the price paid and the amount for which he afterward sold the property. 2. But in this case the purchaser was absolved from the trust. It was made to appear that after the original owner’s return the purchaser, in good faith, offered to let him repurchase the property by paying only what it had cost, including improvements, and not objecting to the proposition as unfair, or variant from the assurance given when the purchase was made, the original owner declined the privilege of repurchasing. Held, that by thus declining to repurchase tho original owner absolved the purchaser from any trust or liability which devolved on him by his promise or assurance made at the sale, and waived his right thereafter to demand a compliance therewith, and left the purchaser free to keep or dispose of the property as his own without responsibility to the original owner.
71 Ky. 415Louisville City Railway Co. v. City of Louisville (1871)
Case 1 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Act of February 15, 1864, incorporating the appellant. Elliott’s Digest of Laws and Ordinances of Louisville, 207. 4 Bush, 478.
71 Ky. 423Smith v. Lockridge (1871)
Case 2 — PETITION— APPEAL PROM MONTGOMERY CIRCUIT COURT. CITED Story on Bills, sections 291, 194, 250, 243, 239, 240. Redfield & Bigelow’s Leading Cases on Bills, etc., 215. Smith’s Mercantile Law, 350, 225. Phillips on Evidence, note 31. Chitty on Bills, 83, 84. 4 Hill, 424, 442. Byles on Bills, 174. 4 Term Rep. 320 2 H. Blaekstone, 143. 9 Wheaton, 680. 3 Watts, 20, 25. 12 Pickering, 545. 8 Connecticut, 337. 6 Yerger, 387. 1 Parsons on Notes and Bills, 260. 2 Parsons on Notes and Bills, pages 556, 558, 564, 565. 19 .Johnson, 391, Woodworth v. Bank of America. 5 Monroe, 25, Bank of Limestone v. Penick. 2 B. Monroe, 310, Johnson v. Bank of United States. 9 B. Monroe, 8, Shipp v. Suggett. 18 B. Monroe, 528, Lisle v. Rogers. 5 Littell, 205, Stout v. Cloud. 3 H. & G. 159, Mitchell v. Ringo. 1 Metcalfe, 576, Smith, adm’r, &c. v.' North. Bank Ky. 5 Bush, 217, Turner, Wilson & Co. v. Browder. 8 Barbour, 664, Laden v. Voehtcn. 7 Bush, 89, Todd v. Edwards & Co. 5 Johnson’s Chancery, 54, Bay v. Coddington, &c. 6 Hill, 93, Stalker v. McDonald, &c. 3 B. Monroe, 629, Breckinridge v. Moore. 2 Metcalfe, 537, Alexander v. Bank of Springfield. 1 Duvall, 391, Thompson v. Poston. 3 Bush, 97, May v. Quinby & Co. 1 American Leading Cases (H. & W.) 336. 2 Bligh, 391, Rowe v. Young. 13 Peters, 136, Wallace v. McConnell. 10 B. Monroe, 270, Smith v. Moberly. 14 B. Monroe, 352, Ward v. Northern Bank. 1 Duvall, 108, Terry & Bell v. Hazlewood. 5 Bush, 621, Whitaker v. Crutcher. ■ 4 J. J. Marshall, 62, Hager v. Boswell, &c. 2 Wash. C. C. Rep. 191. 6 Barr, 164, Snider v. Riley. 4 Dana, 191, Bank of Com. v. McChord & Payne. CITED Story on Bills of Exchange, section 58. Civil Code, section 161. 10 B. Monroe, 270, Smith v. Moberly.' 14 B. Monroe, 52, Ward v. Bank of Kentucky. 1 Duvall, 13, Browning v. Fountain. 5 Bush, 621, Whitaker v. Crutcher. 1 Parsons on Notes & Bills, pages 576, 313. • 1 Duvall, 108, Terry & Bell v. Hazlewood.
71 Ky. 432Sowder v. Commonwealth (1871)
Case 3 — INDICTMENT— APPEAL PROM ROCKCASTLE CIRCUIT COURT. CITED Criminal Code, sections 235-6.
71 Ky. 434Moran v. Dillehay (1871)
Case 4 — PETITION EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. CITED 1 Bush, 278, Righter v. Forrester. 10B. Monroe, 106, Jarvis & Trabue v. Quigley. 10 B. Monroe, 58, Prescot v. Prescot. 12 B. Monroe, 655, Moore v. Moore. 5 Dana, 295, Turner v. Patterson. 14 B. Monroe, 533, Daniel v. Thompson. 11 B. Monroe, 33, Lackland v. Downing. 16 B. Monroe, 313, Oarr v. Estill. 14 Bibb, 390, McNair’s adm’r v.' Hawkins. 2 Duvall, 336, Dunlap v. Shreve. 4 Monroe, 199, Moore v. Howe’s heirs. CITED Oro. James, 590, Pells v. Brown. Act of December 19, 1796. 1 Marshall, 217, Baird v. Rowan. 1 Marshall, 524, Lewis v. Singleton. 11 B. Monroe, 32, Lachland’s heirs v. Downing. 3 Metcalfe, 584, Nunnally v. White’s heirs. 3B. Monroe, 486, Hart v. Thompson. 8 B. Monroe, 616, Dehoe v. Lowen. 9 B. Monroe, 205, Yates and wife v. Gill. 12 B. Monroe, 120, Hughes v. Hughes. 2 Blackstone’s Commentaries, 298.
71 Ky. 441Dickinson v. Trout (1871)
1. Rule against sureties op a trustee requiring them to pay money back into court. — A trustee appointed by tbe court to invest funds, and his sureties in his bond as such trustee, in case of his failure to invest the funds as required by the court, may be proceeded against by rule, and required to pay such funds back into court. Such funds are in the custody of the court until invested by the trustee in obedience to the order of the court. Such proceedings by rule may be instituted by the court on its own motion. The return of the fund to the court’s commissioner will release the sureties from all further liability. 2. Sureties become quasi parties. — By executing the bond in court the sureties become quasi parties to the record, and like, their principal, may be proceeded against by rule. 3. The money having been traced into the hands of the trustee, to exonerate themselves from liability it was necessary for his sureties to show affirmatively that the trustee had complied with the conditions of his bond. It was the duty of the sureties of the trustee to know what their principal had done in the premises. The presumption from the record is that the trustee withdrew the money as soon as authorized to do so, although there is no direct evidence that he did withdraw it. 4. Marriage oe female parties. The mere suggestion of the marriage of female parties is all that is necessary to 'enable the court to make their husbands parties to the suit. 5. Known defenses must be pleaded before judgment. — The courts will not open proceedings or grant a new trial to allow parties to plead the statute of limitations.
71 Ky. 444Commonwealth v. Kimberlin (1871)
The county attorney has the right in the name of the commonwealth to ask and prosecute an appeal to the circuit court from the judgment of a county court establishing an alteration in a public road.
71 Ky. 447McReynolds v. Smallhouse (1871)
1. The state had the right to lease the Green and Barren River line op navigation to the Green and Barren River Navigation Company for the term and in the manner provided 'in the act of March 9, 1868. 2. “ An act to incorporate the Green and Barren River Navigation Company,” approved March 9, 1868, by which the Legislature of Kentucky leased to said company for thirty years the Green and Barren River line of navigation, with the right to collect tolls from steamboats, etc., passing through the locks which had been erected by the state of Kentucky on said rivers, is held to be constitutional. “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.” (Sec. 87, art. 2, Constitution of Kentucky.) “The General Assembly shall have no power to pass laws to diminish the resources of the sinking fund,” etc. (Sec. 84, art. 2, Constitution of Kentucky.) “No man or set of men are entitled to exclusive separate public emoluments or privileges from the community but in consideration of public services.” (Sec. 1, art. 18, Constitution of Kentucky.) “No state shall without the consent of Congress lay any duty of tonnage.” (Sec. 10, art. 1, United States Constitution.) “ The Congress shall have power . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” (Sec. 8, art. 1, United States Constitution.) See opinion for a statement of facts and reasons, showing that the said act of March 9, 1868, did not violate either of the foregoing provisions of the constitution of the state of Kentucky or of the constitution of the United States. 3. The legislature had entire control of the fund accruing from the navigation of Green and Barren rivers until it was placed in the treasury to the credit of the sinking fund.
71 Ky. 459Falls City Real Estate & Building Ass'n v. Vankirk (1871)
Case 8 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. CITED 18 B. Monroe, 389, Barrett v. Churchill. Act of 1862, Myers’s Supplement, page 426. Revised Statutes, chapter 86. CITED* Revised Statutes, chapter 86. Myers’s Supplement, page 426, Act of August 23, 1862. 18 B. Monroe, 387, Barrett v. Churchill.
71 Ky. 461Commonwealth v. Salyer (1871)
Case 9 — BAIL-BOND— APPEAL PROM MONTGOMERY CIRCUIT COURT. CITED Criminal Code, sections 80, 43, 49, 25, 26, 30, 81. 3 Metcalfe, 477, Commonwealth v. Moore. 2 Bush, 3, Branham v. Commonwealth. Acts of 1867, page 83.
71 Ky. 463Shannahan v. Commonwealth (1871)
Case 10 — INDICTMENT— APPEAL PROM JEPPERSON CIRCUIT COURT. CITED Wallace, jr., 127, United States v. Harding. 1 Archbold’s Criminal Practice, 671. 10 Georgia, 101, Davis v. The State. 5 Georgia, 441, Holmes v. The State. 7 Bush, 320, Blimm v. Commonwealth. 7 Bush, 676, Donnellan v. Commonwealth. CITED 1 Duvall, 224, Smith v. Commonwealth. 5 Bush, 366, Kriel v. Commonwealth. Bussell on Crimes, 421-425.
71 Ky. 472American Contract Co. v. Cross (1871)
Case 11 — PETITION ORDINARY ■APPEAL PROM CHRISTIAN CIRCUIT COURT. CITED Angelí on Carriers, secs. 114, 304, 317, 318, 320, 326, 571. Redfield on Carriers, secs. 73, 77-87. Story on Bailments, secs. 595, 213, 410. 13 Maryland, 126, Giles v. Pauntleroy. 19 C. B. (N. S.) 321, Phelps v. L. & N. W. R. Co. 2 Bush, 86, Tucker v. Hood. 35 Vermont, 605. 9 Humphrey, 621. 16 B. Monroe, 308. CITED Redfield on Carriers, page 57, sec. 71; page 72, see. 79. Angelí on Carriers, 116. Newberry’s Admiralty, 494, Steamer H. M. Wright. Civil Code, section 670. 10 Ohio, 145, Jones v. Voorheis. 16 B. Monroe, 302, Steamboat Crystal Palace v. Vanderpool. 6 Porter, 242, Doyle v. Kiser. 1 N. Y. Dig., sec. 136, p. 478, Wadsworth v. N. Y. C. R. R. Co.
71 Ky. 476Smith v. Blakeman (1871)
Case 12 — PETITION ORDINARY APPEAL FROM TAYLOR CIRCUIT COURT. CITED Act of March 5, 1860, sec. 20, Myers’s Supplement, 80. Constitution of Kentucky, section 28, article 4. Revised Statutes, article 13, chapter 27. Civil Code, sections 363, 364, 367. ' 17 B. Monroe, 609, Freeman v. Brenham. CITED Act of March 5, 1860, sec. 20, Myers’s Supplement, 80. Revised Statutes, 1 Stanton, 321. Myers’s Supplement, 136, 693. 7 B. Monroe, 609, Freeman v. Brenham. 2 Metcalfe, 425, Vaudever v. Griffith. 1 Bush, 104, Meadows v. Campbell.
71 Ky. 481Bohannon v. Commonwealth (1871)
1. Self-defense — Malice aforethought — Threats—Erroneous ' INSTRUCTIONS as to. In a prosecution for murder, where the defendant relies upon the plea of self-defense, it is error to instruct that malice aforethought means a predetermination to kill, however suddenly formed in the mind of the person killing. To constitute murder the killing must be unlawful as well as predetermined. 2. The law of. self-defense does not require one whose life has been threatened to leave his home or to secrete himself to avoid his foe. It is therefore error, in such a case, to instruct that the right of self-defense does not arise until the defendant has “ done everything in his power to avoid the necessity” of slaying such foe. 3. Eear grounded upon threats, or upon information that one lies in wait, will not justify the party so threatened or endangered in killing his antagonist, unless the threats or lying in wait have been accompanied by an actual attempt to kill or to commit‘some other known felony; and not then unless the person so circumstanced believes, and has reasonable ground to believe, that the presence of his enemy puts his life in imminent peril, and that he can escape such peril in no other way. 4. One whose life has been threatened, and who has been attacked with a deadly weapon, may arm himself to resist his foe; may leave his home for any legitimate purpose, and if he casually meets such foe, having good reason to believe him to be armed and ready to execute his threats, and that his personal safety can be secured in no other way, he need not wait to be assaulted, but may secure himself from the impending danger even by killing his adversary, if it be necessary to do so. 5. The opinion in Phillips v. Commonwealth (2 Duvall, 331) is reaffirmed in so far as it conforms to the views of the law of self-defense as expressed in the opinion in this case. 6. The opinion in Carico v. Commonwealth (7 Bush, 124) held not to be. binding authority upon the law of self-defense, as it merely expresses the opinion of one judge upon that branch of the law.,
71 Ky. 490Allen v. Allen (1871)
Children of slaves, who after their emancipation failed to recognize or consummate their previous customary marriage in conformity to the act of February 14, 1866 (Myers’s Supplement, 734), are held to occupy the legal position of bastards. The mother of a child horn in slavery is entitled to its services during infancy as against its putative father, who after their emancipation refused to consummate his previous customary marriage with the mother of his child, in conformity to said act of February 14, 1866, and married another woman.
71 Ky. 493Howell v. Bristol (1871)
1. The amendment of 1869 of the charter of the city of Covington, authorizing the city council by a unanimous vote to require the northern portion of Madison Street to be paved with Nicolson pavement at the cost of the owners of the lots fronting thereon, is held to he unconstitutional. 2. Said amendment confers upon the city council the power to improve the streets or alleys, etc., or parts thereof, with Nicolson pavement at the cost of the property owners, “ whenever the owner or owners of the larger part of the front feet of the ground” fronting on the proposed improvement shall petition therefor, and in no other state of case. This limitation applies to every street, alley, market-space, and public place in the city, except the northern portion of Madison Street, which seems to be the leading thoroughfare in the city. It places the lot-owners on the northern portion of Madison Street at the mercy of a unanimous council, and leaves it within the power of the owners of the greater number of front feet abutting on every other street, etc., to prevent the improvement of such street, etc., with “ Nicolson pavement” at their individual expense by merely failing to petition therefor. 3. Perfect equality in the imposition of local taxation can not be attained. But unieormity in the manner oe assessment, and approximate EQUALITY IN THE AMOUNT OE THE EXACTIONS, are essential to the constitutionality of such taxation. This principle is applied, in this case, to an act authorizing street improvements to be made under different rules and regulations in the same city at the cost of the owners of adjacent lots. 4. A law imposing taxation on the general public, the evident intent and legitimate result of which is to equalize the burden so far as practicable, will not be held as violative of the fundamental law merely because that desirable end may not be attained. 5. But when, as in this case, the most probable if not the necessary ' consequence of the law is to produce the most oppressive inequality, and to compel a small minority of tax-payers to provide at their sole expense an improvement of general utility and public interest, tbe construction of'which costs more than double as much as the ■ character of such improvements in general use, and from which, when constructed, the general public derives almost as much advantage as themselves, it assumes the character of an attempted exercise of “ arbitraiy power” over the property of this minority; it becomes, in the constitutional sense, a taking and appropriation of their property to the public use without compensation. No such power over the property "of the citizen can be constitutionally exercised by any department of our state government.
71 Ky. 504McCarty v. McCarty (1871)
Case 16 — PROBATE OF WILL APPEAL FROM FAYETTE CIRCUIT COURT. CITED Civil Code, sections 369, 371, 579, 20, 22, 580. Hardin, 362. 1 Littell, —. 18 B. Monroe, 846, Kay v. Kean. 1 Bibb, 309, Heydon v. Lockhart. 5 Littell, 19, Rudd & Ferguson v. Johnson. 5 J. J. Marshall, —, Arnold v. Paxton. ■ 2 Bush, 45, Small v. Small. 4 Bibb, 508, Wallace v. Usher. 4 Bibb, 85, Moll voy v. Speed. 2 Duvall, 81, Jones & Kelly v. Commonwealth. 4 Bush, 590, Green v. Ball. 4 Bibh, 386, Watson v. Morrison. CITED 13 B. Monroe, 311, Stevenson v. Huddleson. 5 Bush, 576, Walters v. Ratliff. 5 Littell, 280, Wells’s will. 13 B. Monroe, 182, Taylor v. Talbott. 18 B. Monroe, 260, Hughey v. Sidwell’s heirs. Civil Code, sections 519, 579, 123.
71 Ky. 508Broadway Baptist Church v. McAtee (1871)
Case 17 — PETITION EQUITY APPEAL PROM THE LOUISVILLE CHANCERY COURT. CITED Am. Law Reg., July, 1869, page 416, Harnett v. Philadelphia. New Charter of the City of Louisville, secs. 12, 68, 69, 70, 81, 14. 98 Massachusetts, 583, Tufts v. Charleston. 35 California, 441, Himmelman v. Danos. 28 Indiana, 347, McEntire v. Brown. 36 California, 239, Measer v. Risdom. 7 American. Law Eegister, 143 (N. S.), Dean v. Obarlton. 8 Bush, 300, Garrard County Court v. Ky. Eiver Navigation Co. 9 Dana, 573. • 5 Dana, 28. 4 New York, 419. 10 Ohio, 165. 5 Ohio, 246. 21 Louisiana, 142. 34 California, 310, Smith v. Cafron. 44 Barbour (N. Y.) 46, In re Terfler. 21 Wisconsin, 247, Knox v. Peterson. 17 Wisconsin, 443, Myrick v. LaCrosse. 21 Wisconsin, 184, Johnson v. Oshkosh. 21 Iowa, 57, Des Moines v. Cassiday. 47 Missouri, —, Leslie v. St. Louis. CITED Charter of City of Louisville of 1870, secs. 7, 12, 67, 108, 126. Elliott’s Laws and Ordinances of Louisville, 350,406, 407. Newman’s Pleading and Practice, 453. 4 Barbour, 620. 5 J. J. Marshall, 125. 7 J. J. Marshall, 459. 7 Bush, 41. 4 Bush, 470. 1 Marshall, 115. 35 Barbour, 604. 7 Bush, 667-69, Bradley v. McAtee, &c. 5 Bush, 520, Henderson v. Louisville. 29 California, 83, Emery v. Bradford.
71 Ky. 519Sullivan v. Norris (1871)
1. When a party takes a deposition and declines to read it upon the trial it may be read by the adverse party. There are exceptions to this general rule. 2. A deposition taken, to impeach, the credit of a witness can not be read by the adverse party, if the party talcing it declines to read it, and also fails to assail the character of the witness intended to be impeached by the deposition. 3. If the character of the witness had been assailed by the party talcing the deposition, and he had declined to read it, then the adverse party would have had the right to use the deposition for the purpose of sustaining his witness.
71 Ky. 523Breckinridge v. Denny (1871)
Case 19 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. cited Act of 1796, sec. 13, Morehead & Brown’s Digest, 443. Bingham on Descents, 152, 228, 229, 192. Revised Statutes, 2 Stanton, 123, 229, 230. Ms. Opinion, September 17, 1867, Best v. Cochran. Powell on Devises, 279. 1 Dana, 235. 16 B. Monroe, 637. 5 Littell, 312. . 12 B. Monroe, 658, Moore v. Moore. 14 B. Monroe, 662, Daniel v. Thompson. 14 B. Monroe, 322, McKay v. Merrifield. 12 Wheaton, 153, Jackson v. Chase. 14 B. Monroe, 344, Armstrong v. Armstrong. 16 B. Monroe, 312, Carr and wife v. Estill. 14 B. Monroe, 450, Turman v. White’s heirs. 3 Metcalfe, 584, Nunnelly v. White. 2 Redfield on Wills, 654, 655, 658. 1 Greenleaf on Evidence, section 24. 2' Smith’s Leading Cases, 625. 4 Monroe, 204, Moore’s trustee, v. Howe’s heirs. 3 B. Monroe,, 487, Hart v. Thompson’s adm’r. 7 B. Monroe, 614, Attorney-General v. Wallace’s devisees. 2 Williams on Executors, page 933. 8 B. Monroe, 616, Deboe v. Lowen. 3 Burrows, 1634r-5, Chapman v. Brown. 3 Yesey, jr., 336, Bristow v. Waide. 2 Brown’s Chancery Cases, 55, Pitts v. Jackson. 1 Simons, 173, Burgough v. Edridge. CITED Act of 1796, sec. 10, 1 Morehead & Brown’s Digest, 442. Smith on Executory Interests, sections 536, 709. 14 B. Monroe, 144, Brown v. Alden. 11 B. Monroe, 33, Lackland v. Downing. 11 B. Monroe, 58, Prescott y. Prescott. 2 Metcalfe, 334, Johnson v. Johnson. 2 Duvall, 547, True v. Nichols. 4 Monroe, 201, Moore’s trustee v. Howe’s heirs. 4Russell, 403, Palmer v. Heltord. 2 Haywood, 130, Jeffries v. Hunt. 2 Sergeant & Rawle, 509, Graves v. Wiley. 4 Comyn’s Digest, title “ Estates by Devise.” 2 Sergeant & Rawle, 470, Clarke v. Baker. 2 Redfield on Wills, section 73, paragraph 21, page 851. 3 Call, 363, Tate v. Tally. 3Call, 343, Hill v. Burrows. 3 Randolph, 280, Goodrich v. Harding, &c. 1 Call, 165, Garter v. Tyler. 2 Munford, 263, Snyder v. Snyder. 4 Munford; 331, McOintoc v. Manus.
71 Ky. 533Stokes v. Coffey (1871)
1. Insurance op his lipe by an insolvent debtor por the benepit op his wipe, so as to make an unreasonable provision for her, is held to be fraudulent as to antecedent creditors. 2. An insolvent debtor holding a life-policy for ten thousand dollars, payable to his representatives, procured it to be canceled, and another policy issued in its stead, payable to his wife. This was a voluntary gift or assignment of a portion of the husband’s estate, and was void as to antecedent creditors. (Revised Statutes, sec. 2, chap. 40; 50 Penn. 75; 1 Bigelow’s Insurance Reports, 672.) 3. An insolvent debtor insured his life for the benefit of his brother, to secure the payment of certain indebtedness to him, and also to indemnify him as surety on debts due certain other creditors. The debts due to the brother and the debts upon which he was surety should be satisfied out of the proceeds of the policy, and the balance of such proceeds should be treated as assets of the insolvent debtor’s estate. The insurance for the benefit of the brother as above had the effect of preferring him to other creditors. Such a preference is not actually fraudulent. 4. A voluntary post-nuptial settlement upon the wife, in which an unreasonable provision is attempted to be made for her by her insolvent husband, by using his own means in procuring life-policies for her benefit, can not be upheld. The court would not be understood as intimating that an insolvent debtor may not insure his life for the benefit of his wife when she has no considerable estate of her own. But the amount of the policy ought to be no more than will be sufficient to enable her, in the event of his death, by the exercise of proper prudence and economy, to support herself and family, and to afford to them the opportunity of securing reasonable education. 5. An insolvent debtor, by the use of his own means, obtained insurance policies upon his life for the benefit of his wife. The proceeds real-i ized by the wife on such policies after the death of her husband I are subjected in this case to the payment of his antecedent debts. | 6. But as to one policy for the benefit of the wife, she denied that the premium, for it was paid out of her husband’s means.- — -As the creditors of the husband did not prove the payment of the premium on this policy out of the husband’s means, she is permitted to retain the proceeds realized by her upon it, although she did not offer any rational explanation as to what funds were applied to the payment of this premium.
71 Ky. 542Elbert v. Jacoby (1871)
Case 21 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. CITED 6 B. Monroe, 292, Withers v. Hickman. 6 B. Monroe, 560, Taylor v. Taylor’s ex’r. Revised Statutes, chapter 86. CITED 24 Pick. 270, Commercial Bank v. Cunningham. 11 B. Monroe, 400, Teeter v. Pierce. 6 B. Monroe, 292, Withers v. Hickman. 6 B. Monroe, 560, Taylor v. Taylor’s ex’r. 5 Dana, 110, Breckinridge v. Taylor. 5 Dana, 157, Bosley y. Taylor. 2. Wendell’s Equity, 597, Bell y. Jasper. 2 Metcalfe, 199, Taylor v. Munn. 1 Leading Cases in Equity, 103, 135,142. 2 Parsons on Contracts (1st edition), 146. 7 Dana, 310, Morrison y. Poyntz. 2 Dana, 296. 3 Met. 115. 1 Duvall, 220. Revised Statutes, article 6, chapter 86.
71 Ky. 551Fox v. Long (1871)
1. A LIEE-ESTATE IS MERGED BY ITS PURCHASE BY THE REMAINDER-MAN. The owner of nine tenths of the remainder interest in land leased the widow’s dower during her life for eight hundred dollars per annum, payable semi-annually. This was a purchase of the dower, and merged it into the estate in remainder. By leasing her dower-interest the widow divested herself of all right and title to the land, except her right to enforce her lien for the rental. She could not distrain for rent or maintain an action for waste. 2. Wherever a greater estate and a less meet in one and the same person, without any intermediate estate, the less is immediately merged into the greater. (2 Blackstone, 177; 4 Kent, 103.) 3. A merger as to a portion of the premises, the legal titles to which have become united, may take place pro tanto, although no union takes place as to the residue. (Taylor on Landlord and Tenant, 36.) 4. An estate held by a deceased person for the life of another shall go to the personal representative of the deceased as assets, and be applied as the personal estate. (Revised Statutes, section 26, article 2, chapter 37.) 5. Where land has been improperly listed eor taxation the proper proceeding to have the assessment corrected is by a motion in the county court. 6. A TENANT EOR A TERM OE YEARS IS NOT LIABLE EOR TAXES Or other dues upon the land to the state or government in the absence of any special contract to that effect. The tenant eor lire, and not the remainder-man, must pay the taxes assessed against land. (Johnson, &c. v. Smith, 5 Bush, 102.)
71 Ky. 557McNamara v. Shannon (1871)
1. The charge that a person is a thiep is slanderous and actionable. — The accusation that a person is a thief is equivalent in its legal effect to a specific charge that he is guilty of larceny. 2. At common law an action for slander will lie for the willful publication of any false accusation, though made in general words only, if the charge clearly and unequivocally imports that the person accused is guilty of some felony or other crime of such turpitude as to render him liable upon indictment to some infamous punishment. (Starkie on Slander, page 49; 1 Hilliard on Torts, page 277; 5 Monroe, 396.)
71 Ky. 560Curry v. Stewart (1871)
1. A TEMPORARY REMOVAL PROM THE COUNTY BY A COUNTY OPPICER WILL NOT OP ITSELP VACATE HIS OPPICE. The county-judge of Eowan County with his family went into Bath County for the purpose of sawing lumber with a portable sawmill, and took up a temporary residence in that county, intending to return when he had complied with certain contracts for sawing. Held, that this was not such a removal from the county as would of itself vacate his office. 2. A permanent removal by a county or district officer from his county or district will at once ipso facto vacate his office. 3. The meaning of section 35, article 4 of the constitution of this state is that such offices shall become vacant by an actual change of residence from the county or district, as contradistinguished from a mere absence of the officer for some temporary purpose and for a limited time. 4. If an.officer, without intending a permanent change of residence, so absents himself from his county or district as to be guilty of willful neglect in the discharge of his official duties, he is liable to a prosecution, as provided in section 36, article 4, of the Constitution of Kentucky, and, if convicted, removed from office; but the mere existence of such official neglect would not of itself operate to vacate the office.
71 Ky. 564Payne v. Pusey (1871)
Case 25 — PETITION EQUITY APPEAL EROM MEADE CIRCUIT COURT CITED 1 Metcalfe, 553, Berry, &c. v. Graddy’s adni’r. 4 Mississippi, 706, Trotter v. Trotter. 3 Wendell, 517, Rogers v. Rogers. 2 N. & B. 278, Burke v. Jones. 40 Mississippi, 715, Byrd y. Wells. CITED Williams on Executors, page 945, “Retainer.” 2 Littell, 316, 346. 5 Monroe, 248, Lee v. Colston. 1 Metcalfe, 557, Berry v. Graddy. 1 Sm. & G. 415, StaMschmidt v: Leet.
71 Ky. 568Ewing v. Riddle (1871)
Case 26 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Act of August 23, 1862, Myers’s Supplement, 426, 427. Act of February 16, 1858, 2 Stanton, -314. Revised Statutes, chapter 86. 2Washburn on Real Property, 224, 228. 2 Blackstone, 164, 169. 4 Kent’s Commentaries, 236-245. 2 Cruise’s Digest, 270. 6 Dana, 162, Briscoe v. Wickliffe. 7 B. Monroe, 628, Danforth v. Talbott. 1 Metcalfe, 271, Allen v. Vanmeter. 3 Metcalfe, 525, Mattingly’s heirs v. Reed. 4 Metcalfe, 197, Gill v. Given. 4 Metcalfe, 62, Watts v. Pond. 4 Metcalfe, 41, Woodcock v. Bowman. 6 Bush, 553, Ormsby v. Terry. 4 Bush, 23, O’Neal v. Bannon. 15 B. Monroe, 10, Walters v. Crutcher. 12 B. Monroe, 632, Grigsby v. Breckinridge.
71 Ky. 574Murray v. Meagher (1871)
Case' 27 — PETITION OEDINAEY APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. CITED Eevised Statutes, 1 Stanton, 265-67. Bouvier’s Law Dictionary, “ Guaranty.” 3 Kent’s Commentaries, pages 123, 124. 4 Bibb, 69, Boone v. Shackelford. 6 Monroe, 661, Clay v. Johnson. 2 Dana, 90, Bullen v. McGillicuddy. 9 Massachusetts, 314, White v. Howland. 3 Iiill, 188, Miller v. Gaston. 3 Hill, 585, Munrow v. Durham. 5 Massachusetts, 545, Carver v. Warren. 7 J. J. Marshall, 155, Eichardson v. Flournoy. CITED Story on Promissory Notes, secs. 457, 466-71. Eevised Statutes, chap. 22, 1 Stanton, 265. 4 Pick. 385, Tenney v. Prince. 5 East. 10, Waid v. Walters. 8 Pick. 423. 24 Pick, 252. 3 Kent’s Commentaries (5th ed.), page 121. 1 Peters, 476, DeWolf y. Rabue. 3 Bingham, 107, Mosely v. Bootliby.
71 Ky. 577Elbert v. McClelland (1871)
Case 28 — PETITION OEDINAEY APPEAL FROM WOODFORD CIRCUIT COURT. CITED 1 Gal. O. 0. Reports, 69, Cutts y. United States. 4 Term Reports, 320, Masters v. Miller. 2 Mason’s 0. 0. Reports, 478,’ United States v. Spalding. 8 Ootven, 71, Lewis v. Payne. 3 Bibb, 388, Fowler y. Halburt. 5 Monroe, 31, Bank of Limestone v. Penick. 3 Phillips’s Evidence (ed. 1859), page 154. 11 Co. Reports, 27, Pigott’s case. CITED 8 Georgia, 248, Broughton v. Vest. 1 Phillips on Evidence, side-page 604. 5 Har. & John. 41, "VVickes v. Caulk. 4 Green, 212, Harlan v. Berry. 3 Ohio, 445. 4 Georgia, 95. 6 Indiana, 152. 2 E. D. Smith, 1. 2 New Jersey, 424. 1 Halstead, 215. 2 Johnson’s Cases, 198, 200. 9 Alabama, 513. 4 Sneed (Tenn.) 55. 9 Missouri, 696. 22 Barb. (N. Y.) 647. 13 Maine, 386. 36 Mississippi, 455. 17 Georgia, 588. 34 Maine, 115. 20 Vermont, 205. 11 Connecticut. 531, Bailey v. Taylor.
71 Ky. 583Wing v. Dugan (1871)
Case 29 — PETITION ORDINARY APPEAL PROM HANCOCK CIRCUIT COURT. CITED 18 B. Monroe, 57, Francis v. Francis. 16 B. Monroe, 329, Clark v. Finnell, &c.
71 Ky. 587Winfrey v. Zimmerman (1871)
1. A MARE AND A COLT ARE EXEMPT EROM SALE UNDER EXECUTION.— The statute exempting from sale under execution two work-beasts or two work-horses, or one of them and a yoke of oxen, is construed to embrace and exempt a mare and her colt, the execution-defendant being a housekeeper with a family and owning no other work-beast. 2. By the terms woi'k-beast and worlc-horse the legislature intended and meant an animal of the horse kind which could be rendered fit for service, as well as one of mature age and in actual use.
71 Ky. 589Poston v. Smith's (1871)
Case 31-PETITION ORDINARY APPEAL EROM HARDIN CIRCUIT COURT. CITED Eevised Statutes, 2 Stanton, 133. .16 B. Monroe, 417, Eidgely v. Price. 17 B. Monroe, 359, Bennett, &c. v. Devlin. 4 Bush, 538, Vandiver v. Hodge’s adm’r. 2 Marshall, 22, Sneed v. Hall. 2 Bush, 63. 7 Cranch, 202. CITED 1 Duvall, 388, Long v. Hughes.
71 Ky. 594Butler v. Cheatham (1871)
Case 32 — PETITION OEDINAEY APPEAL EROM AUAIR CIRCUIT COURT. CITED 8 B. Monroe, 204, Arnold’s heirs, &c. v. Arnold’s adm’r. 12 B. Monroe, 76. 4 Kent’s Commentaries (3d edition), pages 37, 38, 39. CITED 12 B. Monroe, 65, Northcut v. Whipps.
71 Ky. 597Liederkranz Society v. Beck (1871)
Case 33 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED 3 Bush, 216, O’Donnell’s ex’r v. O’Donnell, &c. 7 Bush, 55, Rich v. Rich. 6 Bush, 369. 5 Bush, 643, Horsfall, &c. v. Ford, &c. 2 Bush, 234, Meniwether v. Sebree, &c. Civil Code, section 543. 2 Metcalfe, 573. Revised Statutes, Myers’s Supplement, 751.
71 Ky. 601Shields v. Smith (1871)
Case 3^-PETITION EQUITY ' APPEAL PROM SPENCER CIRCUIT COURT. CITED 1 Duvall, 222, Williams v. Williams. 5 Bush, 606, Cromie’s will. 6 Bush, 512, Hunter v. Jewell. 1 Littell, 93. 7 Dana, 1-12, Clay v. Hart, &e. Revised Statutes, sec. 14, 1 Stanton, 515. CITED Revised Statutes, secs. 5, 9, 13, chap. 37. Ms. Opinion, 1869, Smith v. Haywood. Civil Code, section 520. 1 Metcalfe, 516, Wood v. Wood.
71 Ky. 607City of Henderson v. Lambert (1871)
Case 35 — PETITION EQUITY APPEAL PROM HENDERSON CIRCUIT COURT. CITED Constitution of the United States, article 5. Constitution of Kentucky, sec. 10, 12, art. —. 1 Session Acts, 1867, page 219. 2 Session Acts, 1867, page 553. 2 Session Acts, 1869, page 346. •6 B. Monroe, 330, Cheany v. Hooser. 9 B. Monroe, 528, Talbott v. Dent. 1 Bush, 552, Ferguson v. Landrum. 2 Bush, 271, Arbegust v. City of Louisville. 2 Metcalfe, 553, Maltus v. Shields.- 17 B. Monroe, 228, Sharp’s ex’r v. Doniphan. 15 B. Monroe, 491, City of Covington v. Southgate. CITED Constitution of the United States, article 5. Constitution of Kentucky, sections 10, 12, art. —. 1 Session Acts, 1867, page 219. 2 Session Acts, 1867, page 553. 2 Session Acts, 1869, page 346. 6 B. Monroe, 830, Cheany v. Hooser. 1 Kent’s Commentaries, 485, 486. 2 Met. 350, Cypress Pond Draining Co. v. Hooser, &c. 1 Bush, 272, Arbegust v. City of Louisville. 9 B. Monroe, 528, Talbott v. Dent. 1 Greenleaf, section 493. 2 Smith’s Leading Oases, 710, 743, 751, 767, Doe v. Oliver. 7 Oasey, 331, Hill v. Eply. 4 Dana, 255, Hanson v. Buckner’s devisees. 1 Bush, 552, Ferguson v. Landrum. 18 B. Monroe, 228, Sharp’s ex’r v. Doniphan. 15 B. Monroe, 491, City of Covington v. Southgate. 11 Howard, 297, Yan Rensallier v. Kearney.
71 Ky. 611Owens v. Ballard County Court (1871)
Case 36 — PETITION ORDINARY APPEAL EROM BALLARD CIRCUIT COURT CITED Revised Statutes, sec. 6, art. 3, chap. 26, 1 Stanton, 300. Revised Statutes, secs. 5, 6, art. 2, chap. 26. Ms. Opinion, 1857, Weaver v. Bracken County Court. CITED Revised Statutes, 1 Stanton, 297, 298. Civil Code, section 123. 3 Marshall, 339, Hawkins v. Commonwealth. 8 B. Monroe, 400, Commonwealth v. Hughes. 3 Metcalfe, 61, Lee v. Walker. 1 Metcalfe, 569, Morrison v. Tate.
71 Ky. 615Lewis v. Pusey (1871)
Vendor’s lien eor purchase-price oe land was not waived in this case. — Two tracts of land were sold and conveyed to J., a lien for the unpaid price being reserved in each of the deeds. Two purchase-notes of $500 each for the unpaid price of one tract were assigned to S., another of $1,000 for the unpaid price of the other tract was assigned to L. J. then sold and conveyed both tracts to P., the latter paying the whole price except $1,425, for which a lien was reserved. L. having obtained a judgment and execution against J. on the $1,000 note, J., in payment thereof, assigned to him the $1,425 note on P. (he paying to J. the excess), and the execution was returned satisfied. S. sued to enforce his lien for the two $500 notes, and L. asserted his lien for the $1,425 note. Held, that L. occupies the same, or at least as favorable a position as his assignor of the $1,000 note would if he had continued to own it. By accepting the note on P. for $1,425, and returning the execution satisfied, L. did nothing which can be construed as a waiver of his lien.
71 Ky. 621Ellis v. Kelly (1871)
1. Money coerced by a judgment obtained by eraud may be RECOVERED BACK AGAIN AETER THE DISCOVERY OE THE ERAUD. The holder of a note, executed in the firm-name by one member of a firm in payment of his own individual debt, falsely represented to the other members of the firm that the note was executed for money loaned to the firm by Mm, and thereby induced them to permit him to recover judgment against them for the note. After the judgment was replevied one of the members of the firm enjoined its collection on the alleged ground that it was not a firm-debt, and called on the plaintiff in the judgment to answer and disclose whether said note was executed by said firm in the prosecution of the firm business, etc. He answered that the note was executed for money loaned by him to the firm, etc., and the injunction was dissolved with damages. After the dissolution of his injunction, and after payment had been coerced from him, this same member of the firm discovered that he could establish the fact that the note was not executed for money loaned to the firm, but in payment of an individual debt of one of the partners, and that this fact was known to and concealed by the party to whom the note was executed; and the money which was thus fraudulently coerced from him is recovered again by him in this action in equity, instituted less than one year after the discovery and less than ten years after the perpetration of the fraud. 2. Money fraudulently coerced by judgment, and paid after being replevied, can be recovered in equity without awarding a new trial of the common law action, or setting aside judgment therein. (West v. Kirby, 4 J. J. Marshall, 56.) 3. When a party by some act or declaration out of the record lulls his opponent into a false security, or by any other means deceives him, and thereby obtains a judgment or decree to his prejudice, the judgment or decree thus obtained is fraudulent, and may be impeached on that ground. (Brunk v. Means, &c., 11 B. Monroe, 214.)
71 Ky. 633Bank of Louisville v. Hurt (1871)
1. Damages against a sheriff for failing to return an execution. — The constructive effect of the act of August 28, 1862, is to exonerate a sheriff or other like officer from the thirty per cent, damages for not returning executions in the time prescribed by law on so much of the debt, and only so much, as he shall have paid, and when payment is partial to substitute a limited fine for the percentage on that amount. 2. The fine under said act of August 28,1862 (Myers’s Supplement, 213), can not be assessed by a jury, but is imposed only by the court.
71 Ky. 636Sale v. Crutchfield (1871)
1. A defeasible fee. — In 1823 the testator devised land to his son “and his heirs and assigns forever,” and if he “shall die without lawful issue,” the land “shall go to his sisters in equal portions, and if either or both of them be then dead, to the child or children of such dead sister.” Held, that the son took a defeasible fee, and not an estate-tail. “ If the said Edmund shall die without lawful issue.” — The testator in this case used these words in their plain and natural sense, intending thereby that if his said son at his death should leave “ no lawful issue,” that the estate devised to him should go to his sisters, etc. 2. A demand of possession must be made of a tenant, or quasi tenant, before an action for the recovery of the land can be maintained. But this doctrine does not apply when the party in possession claims the fee, and there was no contract, express or implied, between him and the claimant. (3 Dana, 291; 4 Dana, 264; 5 Dana, 232.) 3. A claim for valuable and lasting improvements on property sued for presents an equitable defense, for the trial of which the case should be transferred to the equity docket. (15 B. Monroe, 70.) 4. Eirors as to the forum of the proceedings are waived by a submission of the case without objection. (1 Metcalfe, 593.) 5. A party IS estopped from claiming property which he has advised or encouraged another to buy, or at the sale of which he has stood by and failed to assert his claim. But the acquiescence and uniting in a conveyance of a tract of land by one having a contingent interest therein will not estop him from asserting his claim against another who bought without his ■encouragement other lands in which he had a like interest. 6. When there is a misjoinder of causes of action in the petition the court, on motion made before defense, should compel the plaintiff to elect which he will prosecute, and strike out those improperly joined. But if no motion is made the objection to the misjoinder is deemed to be waived. (Civil Code, sections 113, 114.) 7. Cross-pleading. — There are exceptions to the general rule in chancery practice that one defendant shall not have judgment against a co-defendant, except on cross-pleading asking'for relief, and alleging sufficient grounds to authorize it. 8. Statements of decedent as to the relations which a female sustained to him are competent evidence on the trial of the question whether decedent died without lhwful issue.
71 Ky. 650Oneil v. Harkins (1871)
Lateral support. — The owner of land adjacent to the land of another has no right to remove the earth, and thus withdraw the natural support of his neighbor’s soil; and if he does, he is liable for damages and may be restrained by injunction. This doctrine is strictly confined to those cases in which the owner of land has not by building or otherwise increased the lateral pressure upon the adjoining soil. (2 Hilliard on Torts, pages 152, 153; Farrand v. Marshall, 19 Barbour, 380.) An ordinary fence is not such a structure as will by reason of the additional weight it may add to the soil deprive the owner of the right to recover for loss or injury to his realty. Whether a privy-vault and frame building over it increased the weight or pressure in this case was a fact for the determination of the jury.
71 Ky. 655Clarkson v. Clarkson (1871)
Case 42 — PETITION EQUITY APPEAL PROM HARDIN CIRCUIT COURT. CITED 2 Jarman on Wills (2d Am. ed.), side-pages 741, 743. 1 Redfield on Wills, pages 422, 423, 427-9, 432-6. • 6 Dana, 313, Byers V; Byers. 3 Metcalfe, 161, Augustus v. Seabolt. 2 Bush, —, Delph v. Delph. 2 Wendell, —, Shauber v. Jackson. 2 Blackstone, chapter 23. Revised Statutes, chapter 106, section 11. Statute of 1797 (Va. Statute of 1785), 2 M. & B. 1537. CITED 18 Howard U. S. S. C. 390, Allen v. Allen. 17 B. Monroe, 707, Clark v. Clark. 44 Barbour, 564, Lovett v. Kingsland. 1 Jarman on Wills, 1. 7 Cowen, 79, Rosevelt v. Fulton. 2 Barbour’s Chan. Rep. 506, Haxton v. Corse. 1 Jarman on Wills, 146, note. 1 Jarman, 803, 318, 319, 564. 3 Binney, 481-6, Clayton v. Clayton. 2 Wendell, 32, Schauber v. Jackson. 3 Binney, 18, French v. Mcllhenny. 6 Wharton, 244, Bradford v. Bradford. 1 Powell on Devises, 199. 1 Metcalfe, 583, Ford v. Thompson. 3 Metcalfe, 157, Augustus v. Seabolt. . 6 Dana, 314, Byers v. Byers. 2 Bush, 171, Delph v. Delph. Revised Statutes, section 17, chapter 30. Revised Statutes, section 1, chapter 30. Revised Statutes, section 2, chapter 106. ■ Cowper, 657, Denn v. Gaskins. Cowper, 352, Mudge v. Blight. Redfield on Wills, 575, note. Redfield on Wills, 433. Roper on Legacies, 327, 328. Redfield on Wills, pages 1, 5. Jarman’s 6th Rule. 3 Indiana, 444.
71 Ky. 661White v. Thomas (1871)
Case 43 — PETITION EQUITY APPEAL PROM SHELBY CIRCUIT COURT. CITED 3 J. J. Marshall, 264, Cosby, &c. v. Ferguson. 3 Bibb, 186, Eastland v. Jordan. 8 B. Monroe, 64, Pope’s executors v. Elliott. 8 Biish, —, Carlin’s administrator v. Carlin. 12 B. Monroe, 481, Samuel & Johnson v. Ellis. 45 Barbour (N. Y.) 382, Genet v. Beekman. CITED 2 Redfield on Wills, 668, 669, and cases cited. CITED. Revised Statutes, sec. 23, chap. 80, 2 Stanton, 230. Civil Code, section 474. Roper on Legacies, pages 524, 525. 3 Vesey, 324, Bradley v. Peixoto. 1 Jacob & Walker, —, Boss v. Boss. 2 Story’s Equity Jurisprudence, 974a. 8 Bibb, 186, Eastland v. Jordan. 3 J. J. Marshall, 264, Cosby v. Ferguson. 8 B. Monroe, 61, Pope’s executor y. Elliott. 3 Metcalfe, 259, Samuel v. Salter. 8 Bush, —, Carlin’s administrator v. Carlin. 12 B. Monroe, 480, Samuel & Johnson v. Ellis.
71 Ky. 665Hobson v. Hobson's (1871)
Case 44 — PETITION EQUITY APPEAL PROM WARREN CIRCUIT COURT. CITED 5 Bush, 396, Sharp’s adm’r v. Proctor’s adm’r. 2 Metcalfe, 235,- Smith, &e. v. Wilson. 2 Metcalfe, 505, Johnson v. Ferguson.
71 Ky. 668Arnold v. Bryant (1871)
1. Signing name across the back of a promissory note, without being a payee in such note or assignee thereof, makes the party so signing a guarantor, and each signature and delivery shall authorize the bona fide holder of the same to fill up the blank with words of guaranty to himself or order. (Act of January 24, 1866, Myers’s Supplement, 741.) 2. If the name of a person not a payee or assignee of a note is written across its back in blank above the name of the payee, the legal presumption would be that his indorsement was made before delivery to the payee, and he would be liable as a guarantor. 3. If the name of such person as indorser in blank follows the signature of the payee, this presumption would be changed, and in the absence of all evidence it would be held that he was the assignee and the payee the assignor of the note. 4. But this presumption is not conclusive, and upon its being shown that, such indorser did not own the note, either as payee or assignee, at the time he so signed his name in blank upon its hack under the signature of the payee, a subsequent bona fide holder had the right to fill up the blank with words of guaranty. So soon as the proof established the fact that the indorser was an entire stranger to the note, never having held or owned it, the burden of proof was shifted upon him, and to escape responsibility as guarantor it became necessary that he should show that his contract was one of assignment and not of guaranty, and failing to do this he is held to be liable as guarantor. 5. A trustee is made a competent witness by substituting his cestui que trust as plaintiff in his stead, and the necessary bond for costs being executed.
71 Ky. 672Bank of Louisville v. Hall (1871)
1. Real estate purchased for partnership purposes, and appropriated to those purposes, and paid for by partnership funds, becomes partnership property. (Parsons on Partnership, 868, 865.) The rule laid down and established in Cornwall, &c. v. Cornwall, &c., 6 Bush, 869, is adhered to and approved. 2. Individual interests in real estate conveyed to a firm are subjected by attachments to the payment of individual liabilities. Although such real estate was conveyed to and held in the firm name, it was not made to appear that it was purchased for partnership purposes, and appropriated to those purposes, and paid for by. partnership funds.
71 Ky. 679Trustees of Hawesville v. Lander (1871)
The center oe a street or highway is the limit and boundary OF LOTS OR LAND BOUNDED BY SUCH STREET OR HIGHWAY. Where land is sold bounded on a highway, or upon or along a highway, the thread or center line of the same is presumed to he the limit and boundary of such land, in strict analogy with the case of a stream of water not navigable; and the same rule applies to a private street, as well in the city as in the country, opened by the grantor, upon which he sells house-lots bounding upon it.
71 Ky. 681Elizabethtown & Paducah Railroad v. Helm's heirs (1871)
1. In condemnation oe land eor the use oe the Elizabethtown & Paducah Railroad Company the rule prescribed by the charter of said company must be held to be subordinate to the protection afforded the citizen by section 14, article 13, constitution of this state. The rule laid down in Sutton’s heirs v. City of Louisville (5 Dana, 28) is cited and approved, both as to the value of the property taken and how the advantages and disadvantages are to be compared and set off the one against the other. 2. The owner has the constitutional right to demand the value of the land taken, considering its relation to the land from which it is severed. But the right to indemnity for consequential inconvenience or injury, resulting from the use to which the public proposes to devote the land taken, is not a constitutional right, but one existing by virtue of the laws regulating the rights and remedies of the owners of property, and is a legitimate subject of legislative action. 3. Amount oe compensation to the owner oe the land taken SHOULD BE ASCERTAINED BY THE APPRAISERS OR JURY IN THE FOLLOWING manner; TO WIT: First. — By ascertaining the value of the entire tract of land, excluding the enhancement resulting from the contemplated improvement; then (still excluding this enhancement) what will be its value after the appropriation of the portion or such estate therein as may be proposed to be taken. The difference in value thus found is the true compensation to. which the owner is entitled for the land proposed to be taken. While every circumstance injuriously affecting the citizen in the enjoyment of the land not taken, which can be satisfactorily demonstrated to grow out of his being deprived of the use theretofore enjoyed by him of the portion taken, should receive due consideration and be allowed its proper weight, the appraisers or jury should disregard reasons which are merely personal to the owner, not affecting the market value of his remaining lands, and also such prospective damages as may follow the construction and operation of the proposed railway or other public work. Second. — -In determining the consequential damages a survey should be taken of all the advantages and disadvantages which may be reasonably anticipated to result from the prudent construction and operation of the proposed improvement, and if the balance be against the owner of the land, then to the extent that such balance diminishes its market value he should have a judgment on account of incidental damages; otherwise he is entitled to nothing. 4. Opinions of witnesses, based upon a mere knowledge of the results generally following the construction and operations of railways, are not competent evidence in a proceeding for the condemnation of land for the use of a railroad. 5. Evidence as to the damages to the owners, in case the land lying south of the present location of the road had been sold, was competent in this case. 6. For land sold before any steps were taken to condemn the right of way through such land the vendor is not entitled to recover damages, unless the right to claim such damages was reserved in making the sale and conveyance of the land.
71 Ky. 687Honore v. Hutchings (1871)
The following case was misplaced at the time the opinions delivered in October, 1871, were printed, and for this reason it appears at the end, instead of at its proper place in this volume. 1. A RESULTING TRUST AND PLEDGE OR MORTGAGE NOT A CONDITIONAL SALE. Hutchings and Honoré in 1861 jointly purchased thirty acres of land near Chicago, 111. Hutchings advanced the entire purchase-price, took a conveyance to himself, and executed a writing in which, among other things, “it is agreed between said parties that when said land is sold said Hutchings is to have first his six thousand dollars so advanced, and ten per cent, interest, and the profits over and above said sum are to be equally divided between said parties.....This arrangement is to continue eighteen months, when, if the property has not been sold, said Honoré is to pay one half the sum so advanced, with the accrued interest, or said Hutchings is to be the sole owner of the same.” The land was not sold within the eighteen months, and Honoré failed to pay any part of the sum so advanced. In 1869 Hutchings sold the land for one hundred thousand dollars, and refused to pay any part thereof to Honoré. Honoré sued Hutchings for one half of the net profits, after deducting purchase-price, interest, etc. Held that A trust resulted in favor of Honoré to the extent of one half of the land jointly purchased. This interest he pledged to Hutchings to secure the repayment to him of one half the purchase-price advanced, etc.; and Hutchings held the legal title to one half of the land in trust for Honoré, and the latter is entitled to one half of the net profits realized upon the resale of the same. 2. The conveyance to Hutchings and the condition of defeasance executed by him to Honoré must be construed together, as though the one was incorporated into the other. (Powell on Mortgages, 67.) 8. When so construed it appears that the one took an absolute title to the joint property of both, having first executed and delivered to the other a condition of defeasance. In such a case the onus devolves on the party who insists that the contract was a conditional sale. (Edrington v. Harper, 3 J. J. Marshall, 356.) 4. The contracts show upon their face that Hutchings took the title to secure the payment of the money and the interest that might accrue upon the same. Such an arrangement is perfectly consistent with the idea of a mortgage, and though it may be doubted as to whether or not the absolute conveyance to Hutchings was intended to operate only as such, yet the rule is that in all doubtful cases the law will construe a contract to be a mortgage, because such a construction will be most apt to attain the ends of justice and prevent fraud and oppression. (Skinner v. Miller, 5 Littell, 86.) 5. Distinction between a mortgage and a conditional sale. Where the debt forming the consideration of the conveyance still subsists, or the money is advanced by way of loan, with a personal liability on the part of the borrower to repay it, and by the terms of the agreement the land is to be reconveyed on payment of Ihe money, it will be regarded as a mortgage; but where the relation of debtor and creditor is extinguished or never existed, there a similar agreement will be considered as merely a conditional sale. (2 Greenleaf’s Cruise, note 1, page 74.) 6. The common law will be presumed to be in foi'ce in the state of Illinois, where the entire transaction in this case took place, as there is nothing in the record showing the contrary.