72 Ky.

Volume 72 — Kentucky Reports

123 opinions

72 Ky. 1Commonwealth v. Dobbins (1872)
Case 1 — INDICTMENT FOE MISDEMEANOE APPEAL PROM LAWRENCE CIRCUIT COURT. CITED 2 Stockt. (N. J.) 211, Glover v. Powell. 30 Barb. 9, Morgan v. King. 20 United States Digest, page 837.
72 Ky. 3Macklin v. Frazier (1872)
Case 2 — PETITION ORDINARY APPEAL FROM WOODEORD CIRCUIT COURT.
72 Ky. 7Auditor v. Cochran (1872)
1. Salary oe the chancellor oe the Louisville Chancery Court can not be diminished. — The legislature has no constitutional power to require a reduction to be made from the salary of the chancellor of the Louisville Chancery Court. (Adams v. Auditor, 13 B. Mon. 150; Garrard v. Nuttall, 2 Met. 106.) The proviso or condition of the act of February 11, 1871 (Session Acts, page 19), providing “ that the allowance to judges and chancellors pro tern, shall be paid out of the increased salary of the judge or chancellor,” etc., which requires a deduction beyond or for any other cause than for neglect of official duty, is to such extent unconstitutional and void. Sec. 25, art. 4, and sec. 13, art. 8, Constitution of Kentucky, apply as well to the chancellor of the Louisville Chancery Court as to judges of circuit courts. 2. A void act of the legislature can not be ratified or made obligatory.
72 Ky. 11Leiber v. Commonwealth (1872)
Case 4 — INDICTMENT FOR MURDER APPEAL EROM JEEEERSON CIRCUIT COURT. CITED Revised Statutes, secs. 1, 2, chap. 28 (1 Stanton, 378). Criminal Code, secs. 236, 237. Wharton’s Criminal Law, 675. Roscoe’s Criminal Evidence, 24. 1 Duvall, 226, Smith v. Commonwealth. 1 Greenleaf’s Evidence, secs. 33, 34. 1 Bishop’s Crim. Law, secs. 80, 226, 227, 228, 229, 368-71, 257,414. 2 Bishop’s Crim. Law, sees. 630, 723, 632, ?25, 634, 727, 653-54. 8 Bush, 481, Bohannon v. Commonwealth. 2 Russell on Crimes, 761. 1 Greenleaf on Evidence, 156. 2 Barn. & Cress. 176, King v. Mead. 2 Jones (N. C.), The State v. Shelton. 2 Jones (N- 0.) 41, Barfield v. Britt. 7 Humphrey, 542, Nelson v. The State. 2 Chandler, 172, The State v. Cameron. 25 Ala. 421, Mose v. The State. 17 Ala. 618, Johnson v. The State.
72 Ky. 15McAdams's executors v. Hawes (1872)
Case 5 — PETITIONS EQUITY APPEAL EROM HANCOCK CIRCUIT COURT. CITED Hardin’s Rep. 62, Owens v. Owens. Collyer on Partnership, secs. 130, 324. 2 Duvall, 480, Anderson v. Sutton. 1 Duvall, 51, Bank of Louisville v. Barrick, &c. 1 Parsons on Contracts, 197, 198, 200. 3 Dana, 564, Bently, &c. v. Clark. 15 Johnson, 57, Griswold v. Waddington. 16 Johnson, 438. Code, secs. 257, 289. CITED Code, secs. 228, 238, 233, 257, 115, 116, 117, 153, 364, 366, 367. Drake on Attachments, secs. 251, 222. Story on Partnerships, secs. 315, 316. Story on Contracts, sec. 54. Parsons on Partnership, 27, 28. Parsons on Contracts, 200, 201. 15 Johnson, 57, Griswold v. Waddington.
72 Ky. 24Emison v. Risque (1872)
Case 6 — PETITION EQUITY APPEAL PROM SCOTT CIRCUIT COURT. CITED 3 Met. 401, Corn v. Sims. 5 B. Mon. 428, Winfrey v. Williams. 6 Mon. 197, Blight’s heirs v. Banks. 2 Met. 406, Mills v. Brown. 6 Bush, 428, Burton v. McKinney.
72 Ky. 26Wells's adm'r v. Robb (1872)
Case 7 — PETITION ORDINARY APPEAL PROM MASON CIRCUIT COURT. CITED 7 Wallace, 229, Bronson v. Rodes. 7 Wallace, 258, Butler v. Hornitz. 11 Wallace, Dewing v. Sears. 5 Statutes at Large, 137. 12 Statutes at Large, 79, 121, 259, 338, 532, 709. 4Bibb, 187, Mclntire v. Hughes. 7 B. Mon. 582, Mahan v. Mahan. 1Met. 361, Scales v. Ashbrook. 11 Wallace, 682, Knox v. Lee, and Parker v. Davis. CITED Revised Statutes, 1 Stanton, 321. Myers’s Supplement, 693, 694. 7 Bush, 459, Vinsen v. Lockard & Ireland. 5Littell, 335, Chambers v. George. 2 Duvall, 20, Griswold v. Hepburn. 3 Bush, 340, Stokes v. Warren. 7 Wallace, 229, Bronson v. Rodes. 7 Wallace, 258, Butler v. Hornitz. 1 Blackstone, side page 270, top page 206. 2 Bouvier’s Dictionary, title “Money,” p. 181. 2 Peters, 318, Bank of Kentucky v. Wister. 2 Cranch, 10, Faw v. Marsteller. 5 J. J. Marshall, 63, Sinclair v. Pierey. 3 Mon. 167, McChord v. Ford, &c. 2 Duvall, 29, Griswold v. Hepburn. 1 Bush, 348, Riley’s ex’r v. Sharp. 2 Bush, 534, Hall v. Hiles. 6 Bush, 129, Ledford v. Smith. 6Bush, 346. Glass v. Pullen.
72 Ky. 33Murphy v. May (1872)
Case 8 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. CITED Abbott on Shipping, 351. Angelí on Carriers, secs. 174, 67. Story on Bailments, secs. 492, 512, 516. Abbott on Shipping, 380, 351. 6 Mon. 647, Clay v. Johnson. 2 Dana, 431, Robertson v. Kennedy. 1 Murphy (N. C.) 417, Williams v. Branson. 3 Munf. 240, Murphy v. Staton. 16 B. Mon. 686, Bentley v. Bustard. 3 Phillips on Evidence, 283, and note, 863. 3 Har. & John. 71, Patterson v. Maryland Ins. Co. 2 Dallas, 196, Boyce v. Moore. 1 Greenleaf on Evidence, sec. 113. 5 Denio, 285, Clapp v. Wilson. 23 Barb. 444, Pickard v. Collins. 7 Geo. 467, Williams v. Chapman. 4 B. & C. 25, Ewer v. Ambrose. 1 Mon. 7, Baylor v. Smithers. 9 B Mon. 505, Hendron v. Robinson. 2 Esp. 691, De Sailly v. Morgan. 1 Starkie on Evidence, 212. 2 Phillips on Evidence, 962. CITED Revised Statutes, 1 Stanton, sec. 19, p. 461. Code, sec. 662. Angelí on Carriers, secs. 155,145, 163, 165. Story on Bailments, secs. 512, 523. 9 B. Mon. 87. Moore v. Ann. 1 Dana, 177, Davis v. Whitesides. 2 Parsons on Maritime Law, 489. 1 Dallas, Nixon v. Long. 6 Serg. & Rawle, 548, Gordon v. Settle. 3 Watts & Serg. 151, Heming v. M. Ins. Co. Littell’s Selected Cases, 223, Bacon v. Brown. 3 Stew. & Por. (Ala.) 136, Jones v. Pitcher. 3 Kent’s Commentaries, 209. 2 Met. 122, Danville T. P. R. Co. v. Short. 7 B. Mon. 108, Banfield v. Bruton. 3 Dana, 54, Kirk v. Kirk. 9 B. Mon. 369, King’s executor v. Hanna. 4 Dana, 422, Bennett v. Runyon, &c. 3 Littell, 169. 1 Bibb, 303. 4 Bibb, 91. 2 Littell, 306. 1 Mar. 314. 7 B. Mon. 566, Pleak v. Chambers. 10 B. Mon. 256, Moore v. Foster. 16 B. Mon. 683, Bentley v. Bustard.
72 Ky. 40Holtzclaw v. Blackerby (1872)
Case 9 — PETITION EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. CITED 1Bibb, 205, Grant’s heirs v. Craigmiles. 1 Marshall, 287, Fox’s heirs v. Longly. 2 J. J. Marshall, 23, Gray v. Gray. 11 B. Mon. 43, Curnutt v. Roberts. 1 Duvall, 216, Hill’s adm’r v. Spalding’s ex’r. 2 Duvall, 134, Lee’s ex’r v. Lee. 1 Ves. 82,.Owen v. Davies. 3 Atkins, 4, Lacón v. Mertin. 2 Parsons on Contracts, 339, 340. 1 Johnson’s Ch’y, 149, Phillips v. Thompson. 4 Bush, 1, Overstreet v. Rice. 2 Story’s Equity, secs. 759, 764, 765. CITED 3Littell, 55. 1 Marshall, 388. 6 B. Mon. 104. 2 Dana, 295. 3 Dana, 414. 3 Marshall, 555.
72 Ky. 46Bank of Kentucky v. Commonwealth (1872)
Case 10 — ON RULE APPEAL FROM JEFFERSON COUNTY COURT. CITED Act of March 8, 1867, 1 Session Acts, 83. Acts of Congress 1862. Charter of Northern Bank of Kentucky, sec. 15. 2 Peters, 463, Weston v. City Council of Charleston. 4 Wheat. 318, McCulloch v. Bank of Maryland. 2 Black. 620, Bank of Commerce v. New York City. 9 B. Mon. 841, Cheaney v. Hooser. 3 How. 133, Gordon v. Appeal Tax Court. 7 Cranch, 164, New Jersey v. Wilson, 1 Black. 436, Jeff. Branch Bank v. Skelly. 5 Bush, 458, Hamilton v. Keith. 12 Statutes at Large, 346. 13 lb. 13, Act of June 30, 1864. 13 lb. 218, Act of March 3, 1865. 13 lb. 468, 469. 54 Penn. 356, Clopton v. Phil. & Reading Railroad. 23 Ind. 331, Whitney v. City of Madison. 16 How. 369, Piqua Bank v. Knoop. 16 How. 416, Ohio L. Ins. & T. Co. v. Debolt. 18 How. 331, Dodge v. Woolsey. 15 B. Mon. 358, Sage v. Dillard.
72 Ky. 49Gilbert v. Bartlett (1872)
1. County courts op this state are courts op limited jurisdiction, and derive all their powers from some express statutory-enactment. 2. An executor named in an unprobated will is executor until that paper is pronounced invalid 'by the judgment of the county court. 3. An executor nominated in the will has the right, before the will is admitted to record, to create accounts for funeral expenses and for the preservation of the estate, and he derives this power alone from being nominated, in the will as executor. (1 Williams on Executors, 257; Revised Stat., sec. 1, art. 1, chap. 37, 1 Stanton, 497.) The judgment of the county court against the will, defeating the right of the nominated exeeutor to give bond and qualify as such, did not deprive him of the right to a settlement of his accounts for funeral expenses and the preservation of the estate, created before the judgment of the county court against the validity of the will. The nominated executor being the unsuccessful propounder of the will, having incurred expenses in the preservation of the estate or in the payment of funeral expenses, he is entitled to a settlement of his accounts, in the same manner as other fiduciaries, before being compelled to deliver up the estate. 4. Compensation por services, etc., op nominated executor.— The county court has no jurisdiction, on motion of the nominated executor, to make allowances to him for compensation for his services and attorney’s fees incurred by him in his unsuccessful effort to probate the will. He must present his claims in a settlement of his accounts as a fiduciary, or resort to a court of equity. 5. Costs incurred in an unsuccessful effort to probate a will should not he charged against the nominated executor, who in good faith offered the will for prohate. All the ordinary costs, such as pertain to such a proceeding, including the propounder’s costs, must be paid out of the estate of the deceased, and should he taxed by the county court.
72 Ky. 56Elizabethtown & Paducah R. R. v. Geoghegan (1872)
Cases 12-14 — PETITION ORDINARY APPEALS PROM HARDIN CIRCUIT COURT. CITED Chitty on Contracts, 273. 1 Parsons on Contracts, 517. 1 Chitty’s Pleadings, 325. 1 Redfield on Railways, 406. 6 Har. & John. 44. 36 Maine, 201. 1 Gill, 342, Howard v. W. & S. Railroad Company. CITED 9 Dana, 206, Applegate v. Jacoby. Sedgwick on Damages, 422.
72 Ky. 61Gedge v. Commonwealth (1872)
1. Nuisance — Obstructing street dedicated but not accepted — An indictment for erecting and continuing a nuisance by obstructing a street by a railroad switch can not be maintained when there was no acceptance by the town, expressly or by implication, of the dedication of the street by the owner. 2. Dedication op streets and highways must be accepted. — The act of dedicating land to public use for a street or highway does not of itself convert the land dedicated into a public street or highway. There must he some acceptance of the dedication, by the town if a street, or by the county court if a public road, before an indictment can be maintained against those whose duty it is to keep the street or road in repair, or against others, for a nuisance in obstructing the travel, etc. The dedication must be accepted by the county court or town, either upon their records or by continued use and recognition of the land as a highway for such a length of time as would imply an acceptance. The continued use of a road by the public for'fifteen years or more, with the exercise of power over it by appointing overseers, etc., would constitute it a highway. When a street has been dedicated by a deed, the marking out of the street by order of the town authorities connected with its use by the public as a street would be an acceptance of the grant.
72 Ky. 66McCall v. Hitchcock (1872)
Cases 16, 17 — NEW TRIALS APPEAL ERÓM LEWIS CIRCUIT COURT. CITED Code, secs. 15, 153, 361, 579, 371, 373, 387, 574, 579-584. 2 Bibb, 177, Brevard v. Graham. 3 Bibb, 80, Patterson v. Matthews. 4 Bibb, 413, McConnel’s adm’r v. Ficklin, &c. 5 Littell, 8, Yancey v. Downer. 2 Dana, 338, Turner’s adm’r v. Booker. 3 Met. 197, Marr v. Prather. 14 B. Mon. 415, Burgess v. Jacobs. 18 B. Mon. 60, Frances v. Frances. 14 B. Mon. 316, Daniel v. Judy. CITED MS. Opinion, 1857, Simpson v. Dunlap. MS. Opinion, 1856, Steers v. Mason. Myers’s Code, notes on p. 320. Revised Statutes, chap. 22, sec. 1. Hardin’s Rep. 50, Baldwin v. West. 5 Bush, 561, Hatcher v. Andrews. 3Bush, 604, Jones v. Noble. 3 Met. 464, Hocker v. Gentry. 18 B. Mon. 226, Clark v. Seaton. 2Bibb, 583, Wade v. Thurman. 2 Bibb, 602, Moore v. Turbeville. 2 Bibb, 616, Smith v. Miller. 1 Mon. 215, Hughes v. Robertson. 4 Mon. 126, Cravins v. Gant. 1 Hilliard on Torts, 5; 2/6. 286. 1 Chitty’s Pleading, 137. 2 Met. 309, Moxly v. Moxly. 4 Met. 282, Skillman v. Muir. 1 Graham & Waterman on New Trial, 167, 169, 180. 5 Burr, 2631, Martin v. Podge. 40 N. H. 365, Burrow v. Jackson. 32 Conn. 402, Seymour v. Miller. 22 Ind. 107, Sturgeon v. Hutchins. 3 Dana, 31 Honoré v. Murray. 2 Dana, 334, Turner v. Booker. 5Bush, 81, Triplett v. Scott. 3 Mon. 219, Massie v. Crawford. 4 Bibb, 91, Bacon v. Brown.
72 Ky. 72Gasaway v. Woods (1872)
Case 18 — PETITION EQUITY APPEAL PROM HICKMAN CIRCUIT COURT. CITED Homestead Exemption Act, Myers’s Supplement, 715. Constitution of Kentucky, sec. 37, art. 2. CITED Homestead Exemption Act, sec. 5, Myers’s Supplement, 715.
72 Ky. 75Hammond v. Crawford (1872)
1. Defaulting school commissioner — How sued, etc — Trustees of each district in the county have a separate cause of action against a defaulting county school commissioner and his sureties for the benefit of the teacher of each district. Such an action in the name of the trustees of all the districts in the county would be a misjoinder of parties plaintiffs. A subsequently-appointed commissioner can not maintain an action as reiator in the name of the commonwealth against such defaulting commissioner and his sureties. 2. Sureties of a defaulting common-school commissioner are not responsible for money drawn from the treasury by him, unless it was drawn according to law; and 3. The petition in an action against the sureties of a school commissioner should contain a statement of every fact necessary to show that the auditor had authority to draw his warrant on the treasurer for the amount drawn by the commissioner.
72 Ky. 78Adams Express Co. v. Guthrie (1872)
Carriers may limit their common-law liability by special contract made without duress, imposture, or delusion. The carrier must satisfactorily prove that a special contract was made under circumstances indicating fairness and good faith, and it is then incumbent on the shipper to show that the contract ought not for some of the reasons above indicated to be enforced against him.
72 Ky. 81Sullivan's adm'r v. Louisville Bridge Co. (1872)
1. Injuries by reason of the willful neglect of the company or its agents. — Under section 3 of the act of March 10, 1854 (Revised Statutes, 2 Stanton, 510), no recovery can he had in the absence of proof that deceased lost his life by reason of the -willful neglect of the company or its agents. 2. A contractor employing laborers in and about his work is liable to his employees for any injury sustained by them in the prosecution of the same, the injury being the result of his negligence or that of his agent. 3. The relation between employer and employee requires that the employer shall use ordinary care in the selection of materials to be used by the laborer in the course of his work, and to exercise this same degree of care and caution in the selection of those who are to control and manage his hands. 4. When the employer knows, or with the exercise of ordinary vigilance and care ought to have known, that the material furnished by him for the use of the laborer in the construction of the work was defective, and the latter by reason of this negligence is injured, he may recover of his employer damages by reason of the injury sustained. (Shearman and Redfield on Negligence, pp. 104-106; Saunders on Negligence, p. 120.) 5. When the employee undertakes to perform labor that is necessarily attended with danger to himself he so far assumes the risks as to require the exercise of ordinary prudence and caution on his part. 6. The employee is not bound to engage in work that places his life in peril; and when labor of that sort is voluntarily assumed and an injury occurs he can not look to his employer for damages upon the ground of negligence, if by the exercise of ordinary vigilance he could have avoided the accident. 7. The law implies that the laborer is to be furnished with proper and safe material for the execution of his work, and makes it obligatory on the employer to provide for his safety while engaged in its prosecution; but When the employee knows all about the material furnished, and, being fully aware of its defective and unsafe condition, voluntarily uses it and thereby sustains an injury, he is without remedy. 8. Where the employee, using the material furnished him and receiving an injury therefrom, knew before the injury was received as much about the material used and its defectiveness as the party furnishing it, the employer has not been held liable. 9. There are cases where the employee has the right to depend upon the judgment of his employer as to the safety of the material furnished him, and in such instances, when he is injured by the negligence of the party furnishing the material, his right to recover is unquestioned. 10. In this ease the employee had been engaged for several days in working on the very plank from which he fell into the river, and, as the evidence show's, was aware of the danger, and at one time refused to go upon it; he not only had the means of knowing but did know the danger he w'as incurring, and voluntarily placed himself in a position where he lost his life, when by the exercise of ordinary care for his own safety he might have avoided it. 11. Contributory negligence. — It is not every act of contributory negligence that prevents one from maintaining an action for an injury received. Such negligence will not prevent the plaintiff from recovering, unless for this negligence the injury would not have occurred, or if the defendant by the exercise of ordinary care could have avoided the consequences of plaintiff’s negligence. (Saunders on Negligence, 58.) 12. Contributory negligence in this case was the want of ordinary care on the part of the deceased in protecting himself from danger. The court should have told the jury w'hat contributory negligence was. 13. If the defects were such as the company or its agents ought to have Tcnown, or by the exercise of ordinary vigilance could have known, the company is responsible. (Louisville & Nashville Railroad Company v. Robinson, 4 Bush, 509 ; Same v. Collins, 2 Duvall, 116 ; Same v Spence, MS. Opinion.) 14. Erroneous instructions are not prejudicial to the plaintiff when his own testimony fails to show a good cause of action. — In this case the evidence failed to show that the death of plaintiff’s husband resulted from the willful negligence of the company or its agents.
72 Ky. 91Grigsby's v. Wilkinson (1872)
CASE 22 — PETITION EQUITY APPEAL EROM MONTGOMERY CIRCUIT COURT. CITED Revised Statutes, chap. 106, see. 17, 2 Stanton, 461. 5 Bush, 273, Thomas v. Capps. 1 Met. 401, Short v. Tinsley. 2 Roper on Legacies, 95-104. 2 Story’s Equity, sec. 1111, and cases referred to. 6 Dana, 314, Byers v. Byers. 4 J. J. Marsh. 152, Middleton v. Carroll. 5 Yesey, 85, Freemantle v. Banks. 2 Atk. 215, Farnham v. Phillips. 2 House of Lords Cases, 181. 2 Leading Cases in Equity, 325-328. 18 Yesey, 140, Ex parte Pye. CITED Revised Statutes, chap. 106, sec. 18. 2 Met. 567, Jackson v. Payne. 18 B. Mon. 20, Cunningham v. Cunningham.
72 Ky. 97Craig v. Garnett's administrator (1872)
Case 23 — PETITION EQUITY APPEAL FROM GALLATIN CIRCUIT COURT. CITED Revised Statutes, secs. 35-37, 1 Stanton, 509. Code, secs. 29, 405, 467, 846, 470, 424. Littell’s Selected Cases, 256, Stockton v. Owings. Gwynn on Sheriffs) 380. 2 Duvall, 91. 3 Dana, 621, Forman & Dana v. Hunt, &c. 2 B. Mon. 411, Busey v. Hardin. 3 T. B. Mon. 273, Hart v. Bleight, &c. 3 Marsh. 515, Hansford v. Barbour. CITED Revised Statutes, 1 Stanton, sec. 6, p. 552; sec. 10, p. 553. 3 Bibb, 23, Lawrence’s heirs v. Buckman. 3 Bibb, 524, South’s heirs v. Hoy.
72 Ky. 103Register v. Reid (1872)
Case 24&emdash;MANDAMUS&emdash; APPEAL PROM PRANKLIN CIRCUIT COURT. CITED Revised Statutes, chap. 103, sec. 3. CITED Revised Statutes, see. 3, 2 Stanton, 430. Loughborough’s Statutes, 386.
72 Ky. 111Thomas v. Mahone (1872)
Case 25 — PETITION EQUITY APPEAL FROM FRANKLIN CIRCUIT COURT. CITED Code, secs. 153, 125, 328, 332, 239, 373, 445, 579. Halleck on International Law, sec. 24, p. 372; sec. 25, p. 373; chap. 15, p. 378; sec. 14, p. 791; p. 798. Drake on Attachments, sec. 194. American Law Register, April No., 1871. Hill on Trusts, side pages 144, 156. 11 Wallace, 138, Amy v. Supervisors. 1Story on Contracts, secs. 437-448. 1 Story’s Equity, sec. 239. 2 Story on Contracts, sec. 1183. 1 Kent, side pages 388-391. 3 G. Greene, 387, Tiffany v. Glover. 3 Mon. 293, Mason v. Anderson. 5 Ran. 596. 2 Mo. 15. 16 Johnson, Griswold v. Waddington. 2 Wallace, 421, Mrs. Alexander’s cotton case. 10 Wallace, Dean v. Nelson. 1 Bush, 388, Price v. Poynter. 2 Duvall, 141, Harris v. Adams. 6 Wallace, 532, Hanger v. Abbott. 9 Wallace, 687. Vattell, 105, 106. 1 Bush, 409, Bell v. Louisville & Nashville R. R. 2 Black, 674, Prize case. 1 Bush, 502, Baker v. Wright. 1 Smith’s Leading Cases, 833-835, edition 1855. 8 Wallace, 11, Thorington v. Smith. 4 Wharton, 253, United States v. Rice. 9 Howard, 619, Fleming v. Page. 7 Dana, 391, Howell’s heirs v. McCreery, &c. 7 Mon. 615, Blight’s heirs v. Tobin. 7 Dana, 524, Meyers v. Sanders. cited Act of Kentucky Legislature approved Dec. 23, 1861. Civil Code, secs. 445, 448. 1Duvall, 343, Dunn, &c. v. Salter, &c. 1 Duvall, 394, Buckner, &c. v. Bush, &c. 2 Duvall, 288, Bell, Berkly & Co. v. Hall’s ex’rs, &c. 1 Bush, 467, Beazley v. Maret, &c. 2 Bush, 134, Jackson v. McElroy, &c. 2 Bush, 201, Lusk & Gill v. Salter. 1 Bush, 316, Salter v. Dunn, and Lusk, &e. v. Salter. 3 Bush, 311, Lewis v. Wright, &c. 4 Bush, 362, Crutcher v. Hord and wife. 4 Bush, 498, Crutchfield v. Thurman. 10 Wallace, 158, Dean v. Nelson. 10 Wallace, 309, Cooper v. Reynolds. 10 Wallace, 465, Corbett v. Nutt. 11 Wallace, 267, McVeigh v. United States. 11 Wallace, 581, Ludlow v. Ramsey. 2 Metcalfe, 550, Vanbussum v. Maloney. 3 Metcalfe, 544, Taylor v. Gilpin. 2 Duvall, 429, Jackson v. Speed. 4 Bush, 23, O’Neal v. Bannon. 4 Bush, 70, Jarboe, &c. v. Colvin, &c. 7 Harris (Penn.) 258, Kirby v. Shaw. 4 Comstock, 433, People v. Mayor of Brooklyn. 3 Hill (S. C.) 100, State v. Dawson. 21 Penn., Sharpless v. Mayor, &c. 4 Met. 391, Norris v. Doniphan. 11 Wallace, 293, Miller v. United States. 4 Craneh, 209, Mcllvaine v. Cox, lessee. 5 Wheaton, 12, Houston v. Moore. 4 Dallas, 14, Cooper v. Telfair. 3Dallas, 153, Talbot v. Janson, &c. 3 Dallas, 297, The Sally. 2 Craneh, 443, The Betsey. 1 Wheaton, 9, The Samuel. 1 Wheaton, 20, The Octavia.
72 Ky. 127Covington Street-railway Co. v. City of Covington (1872)
Case 26 — PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT. CITED 8 Dana, 289, Applegate v. Lexington & Ohio R. R. Co. 1 Vroom (N. J.) 225, State v. Hoboken. 27 N. Y. 60, Milhan v. Sharp. 27 N. Y. 188, People v. Kerr. 82 Conn. 597, Elliott v. Fair Haven. 33 Barb. 420 (and 32 ib. 358), Brooklyn R. R. Co. v. Brooklyn, &c. 33 N. Y. 42, New York v. Third-avenue R. R. 15 B. Mon. 404, Wolfe v. Covington & Lexington R. R. Co. CITED Act of February 9, 1854, to incorporate the Covington Street-railway Company.
72 Ky. 131Laird v. J. B. Wilder & Co. (1872)
Case 27&emdash;PETITION EQUITY&emdash; APPEAL PROM THE LOUISVILLE CHANCERY COURT. CITED 36 Howard Pr. B. 39, Curtis v. Byam. CITED How. App. Cases, 547, Patrick v. Menck. 8 Simons, 477, Pidding v. How. 6 Bed. 66, Perry v. Truefit. 19 Eng. L. & E. 15, Havel v. Harrison. 40 Penn. St., Palmer v. Harris. 13 How. Pr. It. 389, Fetridge v. Wells. 19 How. Pr. E. 571, Hobbs v. Francais. 3 Wallace, Jr., Heath v. Wright.
72 Ky. 137Memphis & St. Louis Packet Co. v. Grey (1872)
1. Wharfage privileges at Kentucky Oity, on the Mississippi River, were not reserved to Ben Edwards Grey as the original proprietor thereof in the establishment of said town. See opinion for a full statement of the facts of the case, showing that in the conveyance of a lot of ground in said town, fronting on the Mississippi River, to the Mobile & Ohio Railroad Company the right to charge steamboats wharfage for landing at a wharf-boat kept by the agents of said company in front of said lot was not reserved to the said Ben Edwards Grey. 2. A PUBLISHED MAP OF A TOWN MUST BE TAKEN AS THE WRITTEN AND RECORDED REPRESENTATIONS OF THE TOWN ; of its localities and divisions; its streets, alleys, thoroughfares, commons, and public grounds, so far as they are indicated by it; and in these respects must be regarded as having entered into and formed a part of every contract for the sale of lots in the town, by their numbers or positions in the plan, and as having been adopted and confirmed by every conveyance of a lot described by a similar reference. Every purchaser of a lot purchased and paid for, as appurtenant thereto, every advantage, privilege, and easement represented on said plat or map as belonging to it. Every conveyance of a lot or parcel of ground in said town should be regarded as a conveyance of a proportionate right to all these appurtenances as represented on said map. 3. A judgment or decree is conclusive as between the parties and privies to it, but never concludes persons who are not parties or privies. None can be considered as parties to a suit who are not named as such in the record.
72 Ky. 149Cunningham v. Commonwealth (1872)
1. Confessions out of court must be corroborated. — “A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.” (Criminal Code, sec. 238.) Held, “The manifest meaning of this provision is that besides the proof of any confession a defendant may have made of his guilt, unless made in open court, there must, to warrant a conviction, he other evidence conducing to prove him guilty of the offense alleged, or, in other words, to show that such an offense had been committed, and not inconsistent with his guilt, and not merely some “other testimony ” which might have no tendency whatever to establish the charge.” 2. Jury must determine from the evidence whether any confessions OF GUILT WERE IN FACT MADE BY THE ACCUSED. — The instruction copied in the opinion was objectionable in assuming that confessions had been proven to have been made by the accused, and thereby withdrawing from the jury the duty of determining from the evidence whether any confessions of guilt had in fact been made by him.
72 Ky. 154Crabb v. Larkin (1872)
Case 30 — PETITION EQUITY APPEAL FROM FULTON CIRCUIT COURT. CITED Story’s Equity, secs. 1479, 1523, 790,793. Code, secs. 900, 371, 155. MS. Opin. 1871, Howe v. Hutchins. 1 Bibb, 23, Ward & Kenton v. Lee’s assignee. 3 Met. 518, McManama v. Garnett. 8 Jones, L. N. C. 256, Ashe v. Streater. 3 Met. 442, Smith’s heirs v. Dixon. 1 Dana, 401, Todd, &c. v. Wheeler. 7 Bush, 359, Finnell y. Jones. 7 J. J. Marshall, 372. 14 Ind. 166, Layman y. Grayhill. 18 B. Mon. 824, Buggies v. Moore.
72 Ky. 168Shuck v. Lebanon & Raywick Turnpike Road Co. (1872)
Case 31-DISCONTINUING ROAD- APPEAL PROM MARION CIRCUIT COURT. CITED Act to incorporate appellee, 2 Sess. Acts 1869, p. 446. Revised Statutes, 2 Stanton, pp. 224, 226. 4 Littell, 193, Farmer & Arnold v. Samuel, &c. 18 B. Mon. 34, Commonwealth v. Graves & Clary. 18 B. Mon. 761, Campbellsville T. P. R. Co. v. Dye & Co. 14 B. Mon. 339, Wood v. Campbell.
72 Ky. 171May v. Hoaglan (1871)
[The following three cases were not inserted in their proper places in previous volumes. — Reporter.] There must be an actual or constructive delivery. — Covenant TO BURNISH EIGHT BARRELS OE WHISKY ON OR BEFORE A PARTICULAR date did not pass the title, although the obligor, who was a licensed distiller, had stored in a government warehouse a much greater number of barrels, but did not set apart, separate, or attempt to transfer by actual delivery any particular eight barrels as that embraced by said contract. Whisky held in bond and under the control of the officers of the Federal Government, as security for taxes thereon, is not • subject to execution. But it is subject to execution so soon as it is released from the lien and custody of the government by the payment of the tax, etc.
72 Ky. 174Scott v. Scott's ex'r (1871)
Case 33-PETITION EQUITY- APPEAL EROM JESSAMINE CIRCUIT COURT. CITED MS. Opinion by Judge Hise, Dec. 1853, Coil v. Howard. New York Code, section 161. Story’s Equity, 4th ed., p. 388, sec. 377; p. 458, sec. 415. Ibid., p. 812, sec. 896. 3 Abb. 86, Daguerre v. Oser. 4 Met. 130, Taylor v. Moran.. 1 Met. 667, Brookover v. Hurst. 3 Dana, 76, Riley v. Wiley. 3 Dana, 536, Broadus v. Broadus. 5 Dana, 464, Moore v. Moore. 14 B. Mon. 172, Bush v. Madeira. 15 B. Mon. 877, Rogers v. Rogers. 11 How. 170, Troy & Boston R. R. Co. v. Tibbits. 18 B. Mon. 230, Clarke v. Seaton. 13 B. Mon. 404, Hord v. Chandler. CITED 7 B. Mon. 124. Code, sec. 579, 372. 5 Bush, 193, Mason v. Mason. 18 B. Mon. 775, McLean v. Nixon. 3 Bush, 642, Watson, &c. v. Avery, &c. 4 Mon. 412, Hynes v. Meredith. 11 B. Mon. 220, Bruñir v. Means, &c. 10 B. Mon. 251, Garter v. Stennet and Eason.
72 Ky. 178White v. Commonwealth (1872)
Case 34 — INDICTMENT— APPEAL FROM HART CIRCUIT COURT. CITED Wharton’s Criminal Law, secs. 1067,1069,1056. Criminal Code, sec. 121, Archbold’s Criminal Pleadings, 27, 28. 4 Blaclrstone, pp. 206, 207. 2 Met. 33, 34, 35. 3 Met. 18. 1 Bush, 11. 2 Hale’s Pleas of the Crown, p. 185. 3 Chitty’s Criminal Law, p. 734. CITED Criminal Code, secs. 121,127-129, 271,1, 3,175. Wharton’s Criminal Law, 487, 507. Stat. 14 and 15 Victoria, chap. 100, sec. 4. Starfrie’s Criminal Pleadings, p. 74. 3 Met. 15, Burns v. Commonwealth. 1Bussell on Crimes, 556, 421. 1 Archbold’s Criminal Pleadings, 883. 2 Met. 374. 17 B. Mon. 409. 1 Met. 6. 5 Bush, 365, Uriel v. Commonwealth. 3 Met. 8, Commonwealth v. MeClanahan. 15 B. Mon. 1, Commonwealth v. Allen. 15 B. Mon. 34, Watson v. Commonwealth. 16 B. Mon. 2, Commonwealth v. Harvey.
72 Ky. 183Phillips v. Phillips (1872)
Estate obtained in consideration or by reason op the marriage. — The WIPE DID NOT OBTAIN THE LIPE-ESTATE “ IN CONSIDERATION OR BY REASON OP THE MARRIAGE,” within the meaning of the statute in this ease, where the husband during the marriage, in consideration of love and affection, conveyed real estate in trust for the use of his wife during life, remainder to his children. Section 6, article 3, chapter 47 of the Revised Statutes, and section 462 of the Code of Practice, are construed as above indicated.
72 Ky. 189Murphy v. City of Louisville (1872)
Case 2 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED City Charter of 1851, art. 3, sec. 11. Angelí & Ames on Corporations, sec. 343. Cowp. 86, Mayor of Lynn v. Turner. Oro. Eliz. 569, Yielding v. Fay. Act approved February 16, 1865, sec. 2. 2 Stock. 70, Kearney v. Andrews. 2 Coldw. 418, Martin v. Nashville, &c. 9 Barb. 152. 2 Selden, 92. 1 Met. 339, Kearney v. City of Covington. 1 Barb. 338, Mayor, &c. of New York v. Butler. 2 Dutcher 49, Treasurer, &c. of Camden v. Mulford. 3 Barn. & Adolph. 77, Henley v. Mayor of Lyme Regis. 1 Shower, 225, Payne v. Partridge. 3 Hill, 612, Mayor, &c. v. Furze. 16 N. Y. Rep. 161 and notes, Conrad v. Trustees of Ithica. 16 N. Y. Rep., Weet v. Trustees of Rockport. 13 B. Mon. 559, Prather v. City of Lexington. 43 Barb. 52, Cowen v. Village of West Troy. 16 How. Pr. 432, Brady v. Mayor, &e. of New York. 20 Cal. 96, Zottman v. City of San Francisco. 23 Wend. 277, Ex parte Mayor, &c. of Albany. 22 How. (S. C.) 422, Thompson v. Carroll, &c. 21 Pick. 270, Hayward v. Pilgrim Society. 1 Barb. 584, Brady v. Mayor, &c. of Brooklyn. 25 Barb. 146, Partridge v. Badger. 31 Cal. 26, Tbe People v. Swift, &c. 17 N. Y. Rep. 449, Peterson v. Mayor, &c. 40 Barb. 256, Sharp v. Mayor, &c. CITED Cooley on Constitutional Limitations, 196. 24 Barb. 427, Swift v. Williamsburg. 43 Barb. 52, Cowen v. Village of West Troy. 16 How. Pr. 432, Brady v. City of New York. 20 Cal. 99-108, Zottman v. San Francisco. 2 Craneh, 156, Head v. Providence Ins. Co. 2 Kansas, 357. 7 Gray, 12. 15 How. Pr. 428. 18 Md. 276., 15 La. Ann. 667. 8 Minn. 172. 16 Ind. 227. 13 Barb. 567. 16 Barb. 392. 20 N. Y. 312, 317. 18 How. Pr. 343. 2 Bosw. 173. 7 Abbr. 234. 6 Cal. 190.
72 Ky. 199Cochran v. Kerney (1872)
1. Tenants by entireties. — The act of February 23,1846 (Session Acta 1845-46, p. 42), deprived creditors of a husband of the right to subject to the payment of their debts an estate of this character, in such manner as to deprive him of the possession during the life of his wife. Since the passage of said act the husband has no interest in his wife’s lands liable for his debts. (Moore v. Moore, 14 B. Mon. 208.) The husband can not by any act of his prejudice his wife’s right of survivorship in land held by them as tenants by entireties, and his creditors have no power to deprive her of its enjoyment while it remains undetermined whether she or her husband will ultimately become sole owner of the fee. 2. The husband’s estate in land held by himself and wife as tenants by entireties, the court is inclined to think, is so fettered by said act of 1846 and the Revised Statutes as to be exempt from seizure and sale under execution; but 3. The interest op the husband in land held by himselp and WIPE AS TENANTS BY ENTIRETIES MAY BE SOLD BY A COURT OF equity, and its proceeds applied to the payment of his debts; provided it be so done as neither to affect his right of survivorship nor her right to the enjoyment of the land during her life, whether she survives her husband or not.
72 Ky. 202Kenner v. American Contract Co. (1872)
1. Grant op an estate upon condition subsequent, and the condition broken. — Where the right of way through certain lands was granted to the Nashville & Henderson Railroad Company, to be void “should the people of Christian County vote a tax for the building or completion of said road,” the condition was broken when the Christian County Court, upon the petition of a majority of the voters of the county, imposed a tax for the construction of the same road, though it had been sold and was then owned by the Evansville, Henderson & Nashville Railroad Company. 2. At common law no freehold or fee-simple estate could be destroyed by the breach or non-performance of a condition subsequent, unless there was an entry by the grantor or his heirs after the breach, or some claim equivalent to it. (4 Kent, 159; 1 Sheppard’s Touchstone, 153; 2 Blackstone, 155.) 3. But an estate for years, or an incorporeal hereditament, was not created at common law by livery of seizin, and whenever the breach of a subsequent condition happened in an estate or grant of this character, the estate terminated without any entry. (4 Kent, 128.) 4. The more modern authorities establish the doctrine that THE HAPPENING OP THE CONDITION SUBSEQUENT DOES NOT IPSO pacto determine the estate, but that it remains in the grantee, and is subject to be defeated only at the election of the grantor and his heirs; and the waiver of a forfeiture may be inferred from the failure of the party entitled to the estate to re-enter or assert some claim in a reasonable time after the termination of the estate, and particularly where the party to whom the grant is made is permitted to use and make valuable improvements on the premises after the condition is broken, (12 Barbour, 444 ; 20 Barbour, 456; Smith’s Leading Cases, 95.) 5. Where before the condition was broken the grantor died, devising his ' entire estate, the right of forfeiture' or contingent interest went with the land to the devisees, and they occupied the same position toward the property and grantee that the grantor did. (5 Pickering, 529.)
72 Ky. 212Warner v. Bryant (1872)
1. Equitable lien enporced on pacts stated in opinion — A conveyed by deed real estate to B, retaining a lien thereon for $6,000 purchase-money. B afterward withdrew said deed from the cleric’s office, where it had been lodged for record, and destroyed it; and on the same day A conveyed the same land to C, a creditor of B; and 0 on the same day conveyed the said land to D for $8,500. At the time of the'destruction of said first deed E had an execution against B in the hands of the sheriff, said execution being returned “ no property.” E brought suit under section 474 of the Code against B, C, and D. Held, that C was liable to E to the extent of the $2,500 received by him. 2. An allegation that C and F are indebted to B in an amount sufficient to satisfy a certain judgment imports no more as to F than a separate indebtedness, which, together with the indebtedness of C, is sufficient to satisfy said j udgment.
72 Ky. 218Husbands v. Jones (1872)
1. Levy op execution on land seized under attachment.&emdash;Where an attachment has been levied on land it is not liable to seizure and sale under execution issued pending the attachment suit, so as to defeat the attachment. 2. Sale op land to satispy liens.&emdash;Where a portion of the land so attached was sold under order of court and satisfied the debt, the portion not so sold will be subjected to the satisfaction of prior liens on the entire land; and if not sufficient, so much of the portion sold under the attachment will be subjected as is necessary to satisfy the residue.
72 Ky. 224Johnson v. Commonwealth (1872)
Case 8 — INDICTMENT FOR MURDER APPEAL PROM MADISON CIRCUIT COURT. CITED Criminal Code, secs. 226, 236, 237, 242, 267. Wharton’s American Criminal Law, 1008 to 1012. 3 Bush, 533, Coppage v. Commonwealth. 1 Met. 378, Payne v. Commonwealth. 2 Bush, 83, Commonwealth v. Shields. 2 Duvall, 328, Phillips v. Commonwealth. 17 B. Mon. 320, Adwell v. Commonwealth. 18 B. Mon. 52, Meredith v. Commonwealth. 14 B. Mon. 501, Rapp v. Commonwealth. CITED Criminal Code, sec. 372. 2 Met. 540, 564. 3 Met. 16. 3 Bush, 481, Hopkins v. Commonwealth. 7 Bush, 643, Reed v. Commonwealth. 2 Met. 36, Kennedy v. Commonwealth.
72 Ky. 230Smither v. Smither's (1872)
Case 9 — PETITION EQUITY APPEAL FROM WOODFORD CIRCUIT COURT. CITED Sneed’s Rep. (Pr. Dec.) 402, Nicholas v. Nicholas. Adam’s Equity, s. p. 96. 7 B. Mon. 615. Saxton’s Ch’y, 40, Dutch Church v. Akerman. Morehead & Brown’s Digest, 628. 2 Story’s Equity, sec. 1098. 1 Leading Cases in Equity, 419. 2 Scribner on Dower, 468, 473,474. 7 How. (Miss.) 665, Ex parte Delilah Moore. 3 Sandf. Ch’y, 519, Howland v. Heckscher. 1 Bishop on Law of Married Women, sec. 440. 2 Redfield on Wills, sec. 69, p. 754. 7 Dana, 391, Howell’s heirs v. McCreery’s heirs. 11 B. Mon. 370, McAlister and wife v. Brand’s heirs.
72 Ky. 237Elliott v. Harris (1872)
An agreement op the principals in a note to keep their surety indemnified, by the use and application, as the surety might desire, of a particular fund, in case she should require them to do so, was not such a contract as gave her a valid and enforceable claim against that particular fund; and In such a case the subsequent transfer of the fund to the surety by the principals when they were insolvent was an attempt upon their part, in contemplation of insolvency, to prefer such surety to other creditors. (Corn, &c. v. Sims, &c., 3 Metcalfe, 391; Newby & Taylor v. Hill & Million, 2 Metcalfe, 530.)
72 Ky. 240Campbell v. Young (1872)
Case 11-PETITION ORDINARY- APPEAL EKOM ADAIR CIRCUIT COURT. CITED Code, section 142. 2 M. & B., Statute of 1801, p. 1275. 6 Vermont, 219. 6 Bingham, 603. 1 Stanton’s Revised Statutes, p. 400. 6 Bush, 185, Prather v. Harlan & Thompson’s adm’r. 4 Dana, 381, Steele v. Curie. 17 B. Mon. 245, Lindsey v. Rutherford. 12 B. Mon. 537, Ray, &c. v. Catlett & Buck 14 B. Mon. 232, Slade v. Arnold. 14 B. Mon. 337, Murphy v. Simpson. 10 Mass. 317, Green v. Putnam. CITED 1 Stanton’s Revised Statutes, p. 400. 12 B. Mon. 533, Ray v. Catlett & Buck 14 B. Mon. 232, Slade v. Arnold. 14 B. Mon. 337, Murphy v. Simpson.
72 Ky. 247Allison v. Louisville, Harrod's Creek & Westport Railway Co. (1872)
1. Local taxation in aid op railroads. — An act of the legislature authorized certain named commissioners to receive subscriptions to the stock of the Louisville, Harrod’s Creek & Westport Railway Company, the shares to be for one hundred dollars each, and might be subscribed for by any individual, city, town, precinct, county, or corporation ; and as soon as one thousand shares should be subscribed the subscribers should thereby become incorporated into a company. The act further provided “ that whenever the said railway company, or the president or commissioner thereof, shall request the county court of any county to do so, such court may forthwith submit to the qualified voters of any designated precinct .... in any county the question whether the court shall subscribe to the capital stock of said company, on behalf of said precinct, the amount of stock specified in the request of said company,” and also prescribed the manner of holding the election, and the levy and collection of the tax, if voted. Held, that the legislature did not intend that precinct subscriptions should be included in the one thousand shares of stock necessary to be subscribed to authorize the company to organize and elect directors, and until it was organized the question could not be sub- . mitted to the voters of any precinct whether the county court should subscribe for stock.. 2. Any tax-payer op the precinct had the right by legal proceedings to restrain the sale of the bonds of the precinct ‘illegally issued to aid in the construction of the railway. 3. A curative act ineppectual. — The act of the legislature, adopted after this suit was instituted, declaring that the act of the county judge in casting the vote of the precinct in an election for directors of the company, and the act of the commissioners in requesting him to call an election in the precinct, were legal and valid, could not affect the rights of the parties to the suit, or the law as it existed at the time the petition was filed. 4. The legislature can not usurp the powers op the judiciary. The judicial being a co-ordinate and independent department of the state government, neither of the other departments can constitutionally interfere with it in the exercise of its exclusive right to determine the law of existing cases. (Gaines v. Gaines, 9 B. Mon. 295.)
72 Ky. 257Bell v. Truit (1872)
1. Damages, whether liquidated or a penalty. — In general it is the tendency and preference of the law to regard a sum stated to be payable, if a contract is not fulfilled, as a penalty, and not as liquidated damages, because then it may be apportioned to the loss actually sustained. (Sehute v. Taylor, 5 Metcalf, Mass., 61.) 2. On A COVENANT, IN AN OIL LEASE, TO COMMENCE OPERATIONS IN one year, or thereafter to pay twenty-five dollars per annum until the work is commenced, the lessor should in no event recover more than nominal damages for the breach of the covenant. 3. Mistake as to the existence of oil on the lessor’s land— Equity will relieve the lessee from such a contract made by mutual mistake. — In an action by the lessor to recover damages against his lessee for failing to commence operations as covenanted in the lease, the defendant, by appropriate cross-pleadings, sought to be released from the contract entirely on the ground that it was executed in consequence of the mutual mistake of lessee and lessor as to the existence of oil on lessor’s land. The circuit court erred by failing to transfer the action to equity for preparation and trial on the lessee’s claim to be relieved for mistake in the contract.
72 Ky. 259Halbert v. Sparks (1872)
1. Common-school fund can not be appropriated or devoted to THE PAYMENT OF TEACHERS NOT ACTING UNDER THE CONTROL OR SUPERVISION OF THE OFFICERS OF THE COMMON-SCHOOLS. — The president of the Vanceburg Male and Female Academy was authorized, by act of January 12, 1872, to take charge of the common-school for District No. 8, in Lewis County, and have it taught, and draw one half of the public school-money to which it was entitled. By act of March 12, 1872, this action was authorized, and the president of said academy is compelled to refund the amount so received and applied by him under said act of January 12/1872, which did not protect him. 2. The General Assembly has power to pass laws regulating the manner in which the common-school fund shall be devoted to the purposes for which it has been set apart; but these laws, as far as practicable, should be general in their application. 3. Special legislation, which does not come in aid of the general system, or to relieve against hardships growing out of its provisions, or of the neglect or default of the officers by whom it is administered, and especially such as interferes with these officers in the discharge of their duties, or takes from them the right to control the funds set apart to counties or districts for which they are acting, is calculated to destroy the system of common-schools which the constitution declares shall be maintained.
72 Ky. 264Newport & Cincinnati Bridge Co. v. Foote (1872)
Case 15 — PETITION ORDINARY APPEAL PROM CAMPBELL CIRCUIT COURT.
72 Ky. 274Williams v. Commonwealth (1872)
Prominent facts should not be grouped together in an instruction. — “If the jury are satisfied from the evidence that the accused, Williams, went off and armed himself, and returning renewed the attack upon Childs, who, seeing Williams approach, fled for his life, and Williams, following after with his missile, overtook and killed him, then Williams is guilty of murder.” This instruction is objectionable, in that in it certain prominent facts which the evidence conduced to prove are grouped together, and, irrespective of others, stated hypothetically to the jury as constituting sufficient grounds for finding the defendant guilty of murder. But a still more serious error in this instruction is that the jury were thereby told in effect not merely that the facts therein supposed were evidence from which they might find that the killing of Childs was both malicious and without legal excuse, and therefore murder, but that these facts, if true, were conclusive of the questions both of malice and excuse, whatever other evidence there may have been tending either to excuse the killing or reduce the offense from murder to manslaughter.
72 Ky. 276Trousdale's administrator v. Anderson (1872)
Case 17 — PETITION ORDINARY APPEAL FROM CAMPBELL CIRCUIT COURT. CITED Hardin’s Rep. 301, Bell v. Rowland. MS. Opinion, Winter Term, 1871, Morton v. Morris. 1 Bibb, 443. 4 Mon. 37. 5 J. J. Marsh. 261. 4 Dana, 505. 5 Bush, 451. 16 Wendell, 447. 9 Wendell, 297. 4 Bickens 110. 4 Barb. 168, Watkins v. Stephens. 6 Barb. 588, Carshore v. Huyck.
72 Ky. 279Johnson v. Stokes (1872)
Covenant “ if the sale is confirmed.” — In an action on a covenant to pay one thousand dollars “if the sale is confirmed” the petition should have alleged that he had confirmed the sale, and stated the facts to show he had confirmed it, or have stated facts showing a sufficient legal reason for not doing so. Failing to make these allegations, the petition did not contain facts sufficient to constitute a cause of action.
72 Ky. 283Keith's ex'r v. Hinkston (1872)
1. Damages not accrued at the time oe trial can not be recovered by the plaintiee, when, as in this case, the contract declared on will admit of an indefinite number of actions in case the alleged breach shall be continued. The contract, as alleged in this case, was that defendants had promised and agreed to keep said switch, etc., in good repair, and that they would when requested furnish cars and transport the stock, etc., of the plaintiff to market, etc. The breach of this contract consisted in the alleged removal of the switch, etc. Meld, That the failure of the defendants to keep this agreement up to the trial of this action does not entitle the plaintiff to recover for like failures for all time to come. 2. Matter eor the jury. — Whether the contract was in writing, as alleged hy the plaintiff, or oral, was a matter to he considered by the jury.
72 Ky. 285Stump v. Martin (1872)
1. A RESALE SHOULD NOT BE ORDERED BY THE CHANCELLOR, NOR SHOULD THE BIDDINGS BE OPENED UPON THE OEEER OE AN ADVANCE OR INCREASED BID OE. TEN PER CENT; THERE MUST BE OTHER OBJECTIONS TO THE SALE OR THE BIDDINGS SHOULD NOT BE opened. — Decretal sales will not be disturbed or rejected by tbe chancellor for mere inadequacy of price, unless there has been such a sacrifice of property as to import fraud. There must be either fraud or misconduct in some one connected with the sale, some surprise or misapprehension on the part of those interested or of the officer who conducts the sale, or some irregularity in the proceedings or other circumstances attending it, conducing to show unfairness, before the chancellor will refuse to confirm the sale made by his commissioner. It is the duty of the chancellor to look to the rights of parties litigant when property is placed under the control and custody of his commissioner by the judgment; and where there has been fraud, surprise, accident, etc., to disregard the acts of his agent by ordering a resale; but when there is an entire absence of all unfair dealing, and the sale has been conducted pursuant to the judgment, good faith requires that the rights of the purchaser as well as of the parties to the original proceedings should be protected. 2. Land not susceptible oe division may be sold on petition oe the joint owners. — The husband need not give bond, nor is it necessary that his wife should be privily examined in proceedings to' sell land not susceptible of division under the act of March 2, 1868. (Myers’s Supp. 428.) The act of March 2, 1863, is not affected by the act of February 15, 1866. Under the act of February 15, 1866, the interest of a joint owner asking it must be set aside to him, although it may impair the'value of the remainder. In such a case, where the husband joins in the petition asking the sale of his wife’s interest, he is not required to give the bond as provided in chapter 86, Revised Statutes. It is the duty of the chancellor in such a cáse to know of married women what disposition he is to make of the fund arising from the sale of their joint interests, and the order of the court should show the manner in which they desire its application. The proceeds of the sale should not be paid over to the guardian of an infant or committee of a lunatic until bond is executed as required by section 543 of the Code.
72 Ky. 297Lucas v. Case (1872)
1. Congregational Church jurisdiction. — When persons have voluntarily associated themselves into a society of Christians, recognizing no ecclesiastical tribunal with authority to revise its final determination, such a church is what is denominated Congregational, and has the exclusive right to deal with its defaulting members, and this court can not supervise or control that jurisdiction. 2. Every person entering into a church impliedly, if not expressly, covenants to conform to its rules, to submit to its authority and discipline. 3. The regularly constituted officers of a church, acting in good faith and within the scope of their authority, will be protected by law. The privilege connected with proceedings in courts of justice is extended to other quad judicial proceedings, especially if the jurisdiction and action he of a confidential nature. (1 Hilliard on Torts, 355.) 4. Words written or spoken in the regular course of church discipline, or before a tribunal of a religious society, to or of members of the church or society, are as among the members themselves privileged communications, and are not actionable without express malice. (Ib.) 5. No WORDS WRITTEN OR SPOKEN ARE ACTIONABLE UNLESS PUBLISHED WITH MALICE, express OR implied ; and although malice will he implied prima facie from the falsehood of a slanderous imputation, yet the manner and occasion of the publication may rehut such an implication, and impose on the plaintiff the burden of proving express malice. (Hart v. Reed, 1 B. Mon. 166.) 6. Malice will never be presumed from a confidential communication made prudently and in good faith, either through benevolence to the party concerning whom it is made or in the discharge of a legal, social, or moral obligation.
72 Ky. 304City of Covington v. Mayberry (1872)
The increase op the duties op a city oppicer does not imply ANY OBLIGATION TO INCREASE HIS SALARY. — The treasurer of the city of Covington was not entitled to recover from the city any compensation in addition to his salary by reason of his being required to receive from the tax-payers the amounts assessed against them, without any express contract for additional compensation. Receiving taxes was a duty pertaining to the office of treasurer. The increase of such duties by extending the time the tax-payers were required to pay to him from June 15 to July 1, to avoid an additional penalty for not paying to him, did not imply that the city thereby placed itself under any legal obligation to increase the treasurer’s salary as then fixed by ordinance. The fact that the treasurer continued to receive taxes between June 15 and July 1 was a recognition of the right of the council to require this service at his hands.
72 Ky. 307Burton v. Little (1872)
Case 24 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. CITED Revised Statutes, chap. 75, sec. 1. Code, sec. 132. 16 B. Mon. 424, Thomas v. Thomas’s ex’r. 8 Bush, 81, Proctor v. Smith. CITED Rev. Stat., chap 70, sec. 1, art. 1, 2 Stanton, 185. Code, sec. 325. Story’s Equity, sec. 799. 5 Littell, 250. 4 Met. 828. 5 B. Mon. 323, Talbott’s ex’r v. Bell’s devisees. 3 Marsh. 388, Howe v. Logwood. 2 Bush, 261, Gray v. Oyler.
72 Ky. 314Shelton v. Farmer (1872)
Case 25 — PETITION ORDINARY APPEAL PROM BALLARD COMMON PLEAS COURT. CITED Revised Statutes (2 Stanton), chap. 97, sec. 7, p. 398; sec. 14, p. 400; sec. 15, p. 401; sec. 10, p. 39. Revised Statutes (2 Stanton), chap. 47, sec. 3, p. 10. 1 Duvall, 24, Huston v. Hagar. 1 Duvall, 22, Husbands v. Bullock. 5 Bush, 557, Harris v. Moberly. 1 Story’s Equity, sec. 493. 3 Met. 327, Kimble v. Cummins. 3 Dana, 161, Letcher’s adm’r v. Yantis. 18 B. Mon. 649, Emmons v. Overton. 14 B. Mon. 248, Kellar v. Sinton’s ex’r. 15 B. Mon. .134, Spilman & Duff v. Smith. CITED Revised Statutes, sec. 10, chap. 97; sec. 2, chap. 20. 8 B. Mon. 137. Civil Code, secs. 39,400. 7 Bush, 375, Bowman v. Wright.
72 Ky. 317Paul v. Bruce (1872)
Case 26-PETITION ORDINARY- APPEAL EROM ROBERTSON CIRCUIT COURT. CITED Code, secs. 732, 733, 735, Myers’s Supp., 260. 2 Duvall, 437, Moore v. Hagan. CITED Code, sections 732 to 736.
72 Ky. 318Hutchinson, McChesney & Co. v. Ford (1872)
Case 27 — PETITION EQUITY APPEAL PROM SCOTT CIRCUIT COURT.
72 Ky. 323City of Paducah v. Cully (1872)
1. The treasurer of the city of Paducah may be elected by the city council, as prescribed by the act of March 3, 1869, without violating the constitutional provision requiring officers for cities and towns to be elected. 2. The sureties in the bond of the treasurer of the city of Paducah are estopped from showing that the election of the treasurer by the council was unauthorized, because the time of election had not been fixed, and the term of office and the duties to be performed by the treasurer prescribed by ordinance, as required by the act of March 3, 1869. 3. Sureties of the city treasurer are not responsible for defalcations during the previous term of that officer. They are responsible for moneys received by him after the execution of his bond. Before qualifying and executing bond for his subsequent term the treasurer of the city made a settlement of his accounts, and in payment of the amount found to be due to the city by him delivered to the proper committee his check on the Commercial Bank for $8,751.44, certified to be good by the president of said bank. After executing his bond for the succeeding term, this check was returned to the treasurer, and by him surrendered to the president of the bank, who destroyed it. It was thereafter discovered that the treasurer was a defaulter, and that he had on deposit in said bank only the sum. of $1,779.51 instead of the amount named in the check. On these facts, without deciding as to the liability of the bank, it is held, That the city must look to the bank for the unpaid balance of the check, and not to the sureties of the treasurer; and That the surrender of the check does not involve the loss of the debt, but merely of the paper by which its existence was evidenced.
72 Ky. 329Bridges v. Reed (1872)
Case 29 — PETITION ORDINARY APPEAL PROM PAYETTE CIROUIT COURT. CITED 9 Dana, Morrison v. Stockwell. 2 B. Mon. 84, Morris v. Evans. 1 Bush, 475, Joyce v. Joyce’s adm’r. 5 Bush, 14, Nutall’s adm’r v. Brannin’s ex’r. 2 J. J. Marsh. 122, Buckner v. Morris. 15 B. Mon. 77, Smith v. Latimer. CITED Burge on Suretyship, 848-850. 2 B. Mon. 86, Morris v. Evans. 7 J. J. Marsh. 559, Hickman, &c. v. McOurdy. 9 Dana, 488, Morrison v. Page. 1 Bush, 475, Joyce v. Joyce’s adm’r, &e. 15 B. Mon. 79, Smith v. Latimer.
72 Ky. 333O'Brian v. Commonwealth (1872)
Case 30 — INDICTMENT FOR MURDER APPEAL FROM HICKMAN CIRCUIT COURT. CITED 1 Revised Statutes, page 372. 6 Ohio Reports, 402, Hurley’s case. 3 Ohio State Reports, 238, Poague’s case. 1 Bailey, 651, McKee’s case. 9 Wheaton, 580. 18 Johnson, 187. 2 Johnson’s Cases, 301. 2 Gallis. 364. 2 Caine’s Reports, 304. 6 Ser. & Rawle, Cooke and others, 557. 16 Pickering, 120, Makar’s case. 15 Ohio State Reports, 155. 14 Ohio Reports, 304, Mount’s case. 14 Ohio State Reports, 493, Dobbin’s ease. CITED Wharton’s Amer. Crim. Law, sec. 580. 6 Bush, 565, O’Brian v. Commonwealth. 5 Littell, 137. Criminal Code, sec. 172. 9 Wheaton, 579. 9 Mass. 194.
72 Ky. 346Neely v. Merritt (1872)
Case 31 — PETITION EQUITY APPEAL PROM LOGAN CIRCUIT COURT. CITED Revised Statutes, chap. 71, secs. 8, 9. Newman’s Pleading and Practice, 149. Revised Statutes, chap. 93, art. 9. Oivil Code, sec. 39. 3B. Mon. 160, Patton’s adm’r v. Patton’s heirs. 1Met. 26, Rogers v. Mitchell’s heirs. 5 Mon. 101, Clark v. Commonwealth. 1 J. J. Marsh. 177, Hobbs v. Middleton. 3 J. J. Marsh. 123, Thomas’s adm’r v. Commonwealth. 3 Met. 63, Lee v. Waller. 4 Met. 240, Young v. Duhme & Co. ■ 1 Met. 555, Berry v. Belt’s adm’r. 4 J. J. Marsh. 368, Fanny v. Bryant. 6 J. J. Marsh. 331, Charles v. French. 4 Dana, 589, Hudgens v. Spencer. 2 Bibb, 298, Ned v. Beal. 10 B. Mon. 101, O’Bryan v. Goslee. 18 B. Mon. 526, Kitty v. Commonwealth. 18 B. Mon. 201, McCalla’s adm’r v. Patterson. CITED Constitution of Kentuky, sec. 10, art. 9. Revised Statutes, chap. 93, art. 9. Code, sec. 30. 8 B. Mon., Sims v. Harris. 5 B. Mon., Lillard’s ex’r v. Lillard. 3Dana, Wallace v. Hanley. 3 B. M. Patton’s adm’r v. Patton’s heirs. 1 Marsh., Moore v. Waller’s heirs. 1 J. J. Marsh., Hobhs v. Middleton. 3 J. J. Marsh., Thomas’s adm’r v. Commonwealth. 3 Met., Lee v. Waller. 4 Met., Young, &e. v. Duhme. 6 J. J. Marsh., Jeeter v. Durham. 10 B. Mon., Watts v. Sanders. 16 B. Mon. 367, Isaac, &c. v. Graves’s ex’rs. 18 B. Mon., McCalla’s adm’r v. Patterson.
72 Ky. 355Eckert v. McKee (1872)
1. Pension money received prom the United States is not liable to attachment, levy, or seizure by or under any legal or equitable process whatever. (Sec. 61 Pension Law, 2 Brightly’s Digest, 498.) 2. Pension money can not be subjected to the payment of the debts of the pensioner.
72 Ky. 357Moore v. Potter (1872)
1. Release op surety by execution op new bond. — A surety in a trustee’s bond brought suit to be released. The court required a new bond, which was executed with a new surety. The surety in the first bond was thereby released. 2. Construction of statute in reference to release of sureties. — The provision of chapter 97, section 2 of the Revised Statutes, that “if a new bond is given the surety shall not be liable for any act of the principal thereafter,” is a provision for the release of the surety upon the execution of the new bond from all responsibility, for acts of the principal, whether prior or subsequent to the execution of said new bond.
72 Ky. 366Hall v. Ricketts (1872)
1. Motion to remove a suit prom the state court to the United States Circuit Court must be made before “ final trial or hearing” in the state court. 2. A TRIAL RESULTING IN A VERDICT IS A PINAL TRIAL. — In this case the judgment in favor of the defendant was reversed by the Court of Appeals, and the case remanded for a new trial. The defendant filed a petition for the removal of the action to the United States Circuit Court, alleging that he was a citizen of another state. Held, that the application was not made “ before final trial or hearing,” within the meaning of the act of Congress of March 2,1867. The words “ final trial or hearing,” in the act of Congress of March 2, 1867, mean the same as the words “ trial or final hearing” in the act of Congress of July 27, 1866.
72 Ky. 372Kerr v. Condy (1872)
Case 36 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED Myers’s Supp., p. 184, Act of Feb. 8, 1864. Wheaton’s International Law, p. 113. Hardin, 413, Rogers v. Coleman. Kirby’s Reps. 119, Kibbe v. Kibbe. 5Lock’s Works (London, 1812) of Civil Government, secs. 87,134,143. Code, section 83. 4 Bing. 686, Douglas v. Forest. 3J. J. Marsh. 600, Williams v. Preston. 8 B. Mon. 137, Cobb v. Haynes. 1 Duvall, 329, Biesenthall v. Williams. 7 Bush, 316, Rhyms v. Rhyms. 5 Littell, 350, Scott, &c. v. Coleman. 9 Mass. 467, Bissell v. Briggs. 7 Cranch, 481, Mills v. Duryee. 1 Starkie’s Reps. 428, Cavan v. Stewart. 9 East. 192, Buchanan v. Rucker. 5 Bing. N. S. 208, Smith v. Nichols. 9 M. & W. 819, Russell v. Smith. 3 Wheaton, 234, Hampton v. McConnell. 9 Wallace, 812, Bischoff v. Wethered. 6 J. J. Marsh. 257, Harris v. John. 5 Dana, 512, Roberts v. Caldwell. 2 Blackford, 108, Holt v. Alloway. 9 Mass. 462 to 479, Bissell v. Briggs. 2 Vermont, 263, Hoxie v. Wright. . 5 Gill & John. 500, Wernwag v. Pawling. 5 Yerger (Tenn.) 83, Stegell v. Wyche. 4 Cowen, 292, Shumway v. Stillman. 7 N. H. 257, Whittier v. Wendell. 6 Pick. 232, Hall v. Williams. 1 Mass. 399, Bartlett v. Knight. 9 Greenleaf, 140, Harding, &c. v. Alden. 4 Conn. 380, Aldrich v. Kinney. 5 John. 37, Kilburn v. Woodworth. 1 Dallas, 281, Phelps v. Holkér. 1 Bailey, 242, Miller’s ex’rs v. Miller. 1 Littell, 417, Delano v. Jopling. 24 Law Times Reps. 93, Schisbey v. Westenholz. 13 M. & W. 633, Williams v. Jones. 15 and 16 Vic., chap. 76, secs. 18, 19, Com. Pro. Act. 11 Adolphus & Ellis, 179, Ferguson v. Mahon. 15 B. Mon. 378, Rogers v. Rogers. 10Serg. & R. 240, Benton v. Burgot. 13 Wendell, 407, Bradshaw v. Heath. 15 John. 121, Borden v. Fitch. 13 Pickering, 53, McRea v. Mattoon. CITED Hardin’s Reps. 413, Rogers v. Coleman. 3 J. J. Marsh, 600, Williams v. Preston. 6 J. J. Marsh, 257, Harris v. John. 5 Dana, 512, Roberts v. Caldwell. 8 B. Mon. 139, Cobb v. Haynes. 9 Wallace, 814, Bischoff v. Wethered. 15 B. Mon. 378, Rogers v. Rogers.
72 Ky. 380Neal & Co. v. Taylor (1872)
1. A NOTARY IS LIABLE FOR A LOSS OCCASIONED BY HIS NEGLIGENCE in failing to discharge his duty in protesting and delivering or mailing notices of protest as required by law. In order to fix such liability the loss must be shown to have been on account of the want of skill or diligence on the part of the notary. 2. A notary is held not liable in this case in a matter in which judicial construction was necessary to enable Mm to know what was his duty.— In this case the paper was protested (Feb. 13, 1868) in Frankfort, Ky., where the indorser resided and had a place of business known to the notary; and instead of delivering the notice of protest to the indorser, or leaving it at his residence or place of business in Frankfort, on the same day or before the expiration of the business hours of the succeeding day, as was required by the act of January 16, 1864 (Myers’s Supplement, 354), as was afterward decided by this court (June 4,1869) in the case of Todd v. Edwards & Co. (7 Bush, 89), the notary mailed the notice of protest (February 14, 1868) to the holder at Shelbyville, Ky., in accordance with the custom and construction theretofore put upon said act by the notary and banking officers. The notice of protest was remailed to the indorser from Shelbyville on the evening of the 14th, and received by him on the morning of the 15th. In consequence of the mailing of the notices to Shelbyville the indorser was released (7 Bush, 89, Todd v. Edwards & Co.), and thereupon the holder of the paper instituted this action against the notary to make him liable for the debt, etc. Held, That “ it was evidently intended by the act of January 16, 1864 (Myers’s Supplement, 354), to alter the law merchant in regard to giving notice of the protest of commercial paper; but the act itself is so indefinite in its mandatory clause that judicial construction was made necessary in order to enable notaries to know what their legal duties were by reason of its provisions.” The maxim ignoranlia legis non excmat did not apply in this case. The decision of the circuit court that the notary was not liable is affirmed. 3. When and how notices op protest must be giyen. — When the residence of the parties is known to the notary it is his duty, under said act of January 16, 1864, to give or send the notices to such parties as are sought to be made liable. When the residence of such parties is in the same town or city in which the protest is made, and the Residence of such parties is known to the notary, there should be a notice in person delivered by the notary, or left at the dwelling or business house of the party sought to be charged, on the day of the dishonor of the paper or before the expiration of the business hours of the succeeding day. When the residence of the parties sought to be made liable is unknown to the notary it is his duty to forward the notices to the holder of the paper by the first mail after the protest or on the day succeeding it.
72 Ky. 387English v. Wathen (1872)
A PARTIAL PAYMENT ON A NOTE MADE BEPORE A BAR BY LIMITATION is prima pacie AN acknowledgment that the residue is unpaid, and of a continuing liability therefor, and suspends the operation of the statute between-the accrual of the cause of action on the note and the date of that payment. In this case the payment indorsed on the note was not controverted but admitted by the answer. Hopkins v. Stout (6 Bush, 875) is in effect reaffirmed by the court, the Chief Justice being alone in favor of overruling it.
72 Ky. 389Vance's administrator v. Foster & Ray (1872)
Case 39 — JUDICIAL SALE APPEAL PROM MARION CIRCUIT COURT. CITED Code of Practice, section 426. Story on Sales, section 300. ■ Littell’s Select Cases, 217. 7 Dana, 60. 4 Bibb, 66. 14 B. Mon. 413. 6 Dana, 49. 2 B. Mon. 411. 3 Met. 544. 2 Duvall, 332. CITED 3 Dana, 622. 2 B. Mon. 411. 3 Met. 544, Taylor v. Gilpin. 5 B. Mon. 494, Dale v. Shirley. 12 Beavan, 260, Robertson v. Skelton. 1 Sm. & G. 241, Paramar v. Grenstade.
72 Ky. 394Louisville German Mutual Fire Ins. v. Commonwealth (1872)
Cases 40, 41 — PETITIONS ORDINARY APPEALS PROM FRANKLIN CIRCUIT COURT. CITED Act of February 9, 1856, incorporating the Louisville German Mutual Fire Association. Act of January 16, 1860, incorporating the German Washington Mutual Fire Association. Act of March 12,1870, for the incorporation and regulation of insurance companies, etc. Constitution of Kentucky, section 20, article 13. 3 Bush, 592, Griffin v. Kentucky Insurance Company. 15 B. Mon. 360, Sage v. Dillard. CITED Fire Insurance Law, Session Acts 1869-70. Code, sections 492, 532, 534. Angelí & Ames on Corporations, p. 2. 3 Bush, 592, Griffin v. Kentucky Ins. Co. 4 Wheaton, 636, Dartmouth College v. Woodward.
72 Ky. 397Harris, adm'r v. Harbeson (1872)
1. Words in a deed not sufficient to create a separate estate.— A separate estate was not created by the following in a conveyance by the husband and wife to a trustee for the use of the wife, to wit, that the trustee “shall and will hold the aforesaid property and effects, and the proceeds thereof, for the use of” the wife, “free from any future charge or debt on the part of her husband.” 2. A special power to dispose of property by will was not conferred by the following in a conveyance by the husband and wife to a trustee for the use of the wife, to wit, “to use, sell, or exchange, or to re-invest or otherwise dispose of the whole or any part of said property and effects, and the proceeds thereof, in any manner she may think proper.” 3. “ Special power ” to dispose of by will, within the meaning of the statute, is a power which is specifically expressed, or as clearly and unequivocally manifested, of disposing by will of some particular estate.
72 Ky. 405Beadles v. Miller, Gardner & Co. (1872)
Case 43-PETITION EQUITY- APPEAL EROM GRAVES CIRCUIT COURT. CITED Story on Agency, section 220. Cases temp. Tal. Ill, Proof v. Hines. 2Schoale & Leproy, 292, Grove v. Watts. 4 J. R. 536, 598, 599, Sands v. Cadwise. 2 Ver. 465, Herne v.- Meirs. 3 Head (Tenn.) 579, Alley v. Connelly. 9 American Law Register, May, 1870, p. 320. 7 B. Mon. 358, Brown v. Foree. 5 Green, N. J. 153, Atwood v. Impson. 7 Bush, 218, Dohoney v. Dohoney. 7 Bush, 340, Farmers’ Bank v. Long. CITED 9 Dana, 450. 1 Burrows, 474, 475. 20 Howard, 45. 3 Mon. 4. 17 B. Mon. 305. 1 Marsh. 58. 1 Story’s Equity, 369. 7Mon. 599. 2 Johnson’s Ch’y E. 40. 10 B. Mon. 186. 7 Mon. 485. 6 Bush, 197. 6J. J. Marsh. 84. 4 Bush, 279. 16 B. Mon. 529. 1 Story’s Equity, 408. 3 Marsh. 111. Story on Agency, 140. 1 Bush 90.
72 Ky. 411Swager v. Crutchfield (1872)
1. Sales or conveyances op land in adverse possession — Champerty and maintenance. — The act of 1824 (1 M. & B. 285-6) and the provisions of the Revised Statutes (1 Stanton, 226-7), so far as they relate to sales and conveyances of lands adversely held at the time, and provide a remedy for the person in possession, are substantially the same; and Adjudications under said statute of 1824 are regarded as applicable to said provisions of the Revised Statutes. The object of the get of 1824 was to prevent speculations in “pretended” titles, whereby purchasers were enabled to harass occupants with law-suits. The act did not embrace a case where the vendor had already litigated the title with the occupants, and had obtained a verdict and judgment in his favor which were irreversible. (Jones v. Chiles, 2 Dana, 25.) 2. A conveyance of land, pending an ejectment for it, does not affect the right of recovery. A deed void by the champerty act of 1824 leaves the title still in the grantor, and is no obstacle to the progress of a suit previously commenced. The champerty act of 1824 does not extend to a case in which neither the commencement, prosecution, nor result of the suit can be traced to the sale or deed impeached as violating the act. (Chiles, &e. v. Conley’s heirs, 9 Dana, 385.) S. A SALE OR CONVEYANCE OP LAND APTER A PINAL AND UNRE-VERSIBLE JUDGMENT POR ITS RECOVERY HAS BEEN RENDERED ÍS not embraced by the provisions of the Revised Statutes in reference to champerty and maintenance. In this case the sale was made while the defendant was in possession, and while the judgment was superseded by an appeal, prosecuted by him, in which the judgment against him was affirmed.
72 Ky. 417Smith v. Turner's administrator (1872)
When the note op one partner binds the pirm. — If the individual note of one partner is accepted as a merger of a partnership liability, the other partner is thereby exonerated from any legal responsibility for the debt, whatever his liability may at first have been. (Macklin’s ex’r v. Crutcher, 6 Bush, 401.) But if the individual note of one partner was given and accepted not merely as the note of that partner, but was meant and intended as an obligation for and on behalf of the firm, its acceptance did not exonerate the other partner from responsibility. (Gow on Partnership, 56.)
72 Ky. 421Young v. Smith (1872)
Case 46 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Revised Statutes, sec. 17, 2 Stanton, 28; ib.S. Revised Statutes, 1 Stanton, 281. Perry on Trusts, 662. 2 Vesey, 190, Peacock v. Monk. 2 Atkyns, 558, Tyrrell v. Hope. 1 Bro. Ch. R. R. 20, Hulme v. Tenant. 2 Met. 521, Toombs v. Stone. 3 Met. 335, Marshall v. Miller. 13 B. Mon. 384, Bell v. Kellar. 16 B. Mon. 486, Burch v. Breckinridge. 18 B. Mon. 382, Williamson v. Williamson. 14 B. Mon. 198, Petty v. Malier. 17 B. Mon. 59. 12 B. Mon. 329. 2 Met. 521. 22 N. Y. 450. 2 Atkyns, 379. 5 Bush, 399. 3 Blaekstone, 417. 3 Met. 244. 10 B. Mon. 290. 4 Met. 96. 3 Barbour, 114. 6 Bush, 173. 18 B. Mon. 304. CITED 14 B. Mon. 198, Petty v. Malier. 10 B. Mon. 287, Young and wife v. Miles’s ex’rs. 18 B. Mon. 304, Daniel v. Robinson. 2 Met. 521, Toombs v. Stone. 2 Bush, 288, Carter, &c. v. Carter.
72 Ky. 430Mississippi Valley Life Ins. v. Neyland (1872)
1. Powers oe general agent oe insurance company.&emdash;A general agent of an insurance company, whose business it is to solicit applications for insurance and receive the first premiums, has the right to waive the payment in money, and in lieu thereof take a promissory note, 'or undertake to make the payment himself, notwithstanding a recital in the policy that it shall not be binding until the cash part of the first premium is actually paid in money. 2. The company was not bound by the delivery oe a receipt by A LOCAL AGENT, AND HIS ASSUMPTION TO PAY THE COMPANY THE amount thereof.-&emdash;In this case a local agent, authorized to deliver “binding receipts” signed by the general agent, agreed in good faith and for value to assume himself the payment to the company of the first cash installment, and delivered to the insured a “binding receipt,” properly signed. Held,, that the company was bound. 3. A pamphlet (staining the private instructions of a company to its agents is not evidence in its behalf; nor is a letter from one of its agents to another.
72 Ky. 438Evansville, Henderson & Nashville R. R. v. Commonwealth (1872)
The Evansville, Henderson & Nashville Railroad is subject to taxation at the rate of twenty thousand, dollars per mile, as provided by the act of February 20, 1864. The charter of 1867 of this company provides that it shall pay such taxes as are paid by other railroads in this state, but no tax shall be required until it shall have completed its road to the state-line. Said company afterward purchased the franchises of the Henderson & Nashville Railroad Company, chartered in 1851, which had commenced the construction of a road-bed, but had abandoned it. This charter of 1851 provided that said road should be forever exempt from taxation. A subsequent act, passed in 1868, recites that the franchises and rights of the Henderson & Nashville Railroad Company had been purchased by the Evansville, Henderson & Nashville Railroad Company. Held, that the Evansville, Henderson & Nashville Railroad Company was not exempted from taxation by said act of 1868. The rate of taxation on said road, at a valuation of twenty thousand dollars per mile, is the same as that paid by white persons on their real estate. It is no ground of defense against the payment of said tax that other railroads in this state are of greater value than this road, it not appearing that this road is worth less than twenty thousand dollars per mile. The right to tax this road depended upon its condition July 10, 1871. The evidence shows that it was completed to the state-line about March 1, 1871. The general revenue law provides for the taxation of real estate according to its value, as of the 10th-of January preceding. Held, that the general revenue law does not apply to this case. The right to enforce the tax in this case depends upon the condition of the road on the 10th day of July, 1873. It was therefore subject to taxation for the year 1871.
72 Ky. 446Brannock v. Hamilton (1872)
Education op a child or grandchild not an advancement.— Payment of money by tbe grandfather on account of the education of Ms granddaughter is not deemed an advancement to the granddaughter.
72 Ky. 450Connecticut Mutual Life Ins. v. Siegel (1872)
Case 50 — PETITION ORDINARY APPEAL FROM JEEEERSON COMMON PLEAS COURT. CITED Ell. & Ell. 2 B. 825 (102 E. C. L.), Roper v. Lendon. Civil Code, section 147. Newman’s Pleading and Practice, 320. Bigelow on Estoppels, 480. 3 Hill, 215, Dezell v. Odell. . 6 Ad. & E. 469, Pickard v. Sears. 4 Hurl. & N. 549, Cornish v. Abingdon. 8 Wend. 480, Welland v. Canal Company. 9 Cowen, 274, Stephens v. Baird. 1 Bosw. 513, Irving v. Excelsior Ins. Co. 4 Denio, 508, Howard v. Insurance Co. 2 Ex. 654, Freeman v. Cooke. 6 H. & J. (Md.) 408, Allegre v. Insurance Co. 10Allen, 214, Campbell v. Charter Oak Ins. Co. 13 Gray, 434, Taylor v. Insurance Co. 41 Penn. 161, Conn. Ins. Co. v. Sennet. 43 Ala. 360, Brooks v. Martin.' 99 Mass. 318, Cluff v. Mut. Ben. Ins. Co. cited 1 Bigelow, 269, Cluff v. Mut. Ben. Life Ins. Co. 9 B. L, Mowry v. Home Ins. Co. ' 1 Insurance Law Journal, 1871, p. 25. 1 Boswell, 513, Irving v. Excelsior Ins. Co. 4 Denio, Howard v. City Eire Ins. Co. 3 Met. 127, Baum v. Winston. 2 Met. 227, City of Covington v. Powell. 1 Duvall, 59, Gregory v. McEarland. 2 Met. 380, Corbin v. Commonwealth. 10 Allen, 213, Campbell v. Charter Oak Ins. Co. 13 Gray, 434, Cluff v. Mut. Ben. Life Ins. Co.
72 Ky. 455Covington Street-railway Co. v. Packer (1872)
Case 51-PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT. ■ CITED Shearman & Redfield on Negligence, secs. 608, 48, 49. 1 Duvall, 313, Hancock v. Wilhoite. 8 Gray, 123, Holly v. Boston Gas Co. 14 B. Mon. 165, Eden v. Lex. & Prank. R. R. Co. 48 Penn. 320, Oakland R. R. Co. v. Fielding. ■ 48 Penn. 372, Pennsylvania R. R. Co. v. Kelley. 21 Wend. 615, Hartfield v. Roper. 36 Barb. 230, Margum v. Brooklyn R. R. Co. 29 Barb. 234, Selman v. Brooklin. CITED Shearman & Redfield on Negligence, sec. 606. 4 B. Mon. 265, Oassilay v. Young, &c. 2 Duvall, 556, Lou. & Port. R. R. Co. v. Smith. 7 Mon. 394, Trimble v. Spiller. 5 Bush, 571, Hancock v. Wilhoite. 12 B. Mon. 412, King v. Shanks. ^ 14 B. Mon.'hftS^Eden v. Lex. & Frank. R. R. Co. 20 Wend. 210, Ford v. Monroe.
72 Ky. 460Kleeman & Co. v. Collins (1872)
1. A PAROL CONTRACT EOR ONE YEAR’S SERVICE, TO COMMENCE AT A SUBSEQUENT DAY, IS WITHIN THE STATUTE OE ERAUDS AND PERJURIES. — Plaintiff made a contract in Chicago, Illinois, with the defendants that he would render them one year’s service in New Orleans, Louisiana, to commence when the plaintiff should arrive at New Orleans. The plaintiff rendered four months’ service in pursuance of said contract, and was then discharged by the defendants. Plaintiff instituted this action in this state against the defendants for their breach of said contract, and recovered a judgment against them, which is reversed on their appeal. Held, that this contract was within the statute of frauds and perjuries. That a partial performance does not authorize an action to be maintained on the contract. That the only remedy the plaintiff has is by quantum meruit, or some appropriate action other than on the contract itself. 2. The statute oe erauds and perjuries relates to the remedy or mode of procedure, and not to the validity of the contract. The statute does not make such a contraet void, but only declares that no action shall be maintained upon it. (Berry v. Graddy, 1 Met. 553; Roberts v. Terinell, 3 Mon. 247.) This action could not therefore , he maintained in this state oh said contract, although it might have been enforceable in Illinois, where it was made, or in Louisiana, where it was to be performed. 3. Case may be taken out of the statute by statements in a letter. — A letter written by one of the defendants from Chicago to his partner or agent in New Orleans, specifying the terms of the contract made with plaintiff, if produced, or its contents proven if lost, would be sufficient evidence of the contract to take it out of the statute.
72 Ky. 468Covington & Lexington Railroad v. Bowler's heirs (1872)
Case 53 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. CITED Sugden on Vendors, 6th Am. ed., 150, 158. Adams’s Equity, 4th Am. ed., 208, 204. Perry on Trusts, sections 166, 227. Hill on Trustees, 144, 764, 766, 769, 770. Kerr on Frauds, 286. 6Wallace, 419, Stark v. Starrs. 1Vesey, sr. 120, 285, Barnesley v. Powell.. 1 Ph. 145, Allen v. McPherson. 2 Story’s Equity Jurisprudence, sections 1262, 1264. 4Cowen, 718, Hawley v. Cramer. 2 Johnson’s Chancery, 252, Davone v. Fanning. 4 Vesey, jr. 411, Hardwicke v. Vernon. 5 Vesey, jr. 707, Ex parte Reynolds. 6 Vesey, jr. 625, Ex parte Lacey. 1 McQueen, 461, Aberdeen R. R. Co. v. Blaikie Bros. I Duvall, 192, Longest’s adm’r v. Tyler’s ex’rs. 3 Dana, 261, Mitehum’s heirs v. Mitchum’s ex’rs. 4 Mon. 297, Morgan’s heirs v. Boone’s heirs. 5 Mon. 435, Morrison v. Caldwell. 7 Wallace, 299, Drury v. Cross. 8 Bush, 410, Roach v. Hudson. 16 Maryland, 456, Hoffman Coal Co. v. Cumberland Coal Co. 18 Ohio State, 169, Goodin v. Whitewater Canal Co'. II Wallace, 457, Meader v. Norton. Lewin on Trusts, sections 143, 13. Selected Chancery Cases, 61, Keech v. Sandford. Coke upon Littleton, 19, 20. Comyn’s Digest, title “ Franchise. Act of December 17, 1797, 2 M. & B. 1125; lb. 1332. Revised Statutes, 2 Stanton, 123. 6 Vesey, jr. 631, Lester v. Lester. 7 Smedes & Marsh. 410, Scott v. Freeland. 1Sand. Ch’y, 148, Campbell v. Johnston. 1Leading Cases in Equity, 117, Fox v. Machreth. 4 How. 563, Michoud v. Girod. 6 Wallace, 277, Slater v. Maxwell. 7 Wallace, 561, Cocks v. Izard. 3 How. 354, Oliver v. Piatt. 3 Russ. 241, Giddings v. Giddings. 1 Leading Cases in Equity, 32. 2 Wallace, 301, Bronson v. La Crosse Railroad Co. 7 Ohio, 387, Lockwood v. Mitchell. 3 Bush, 650, Applegate v. Ernst. 2Wallace, 646, Minnesota Co. v. St. Paul Co. 6 Dana, 107, Price v. Price’s heirs. 2 .Blackstone, 20-22, 37, 38. 2 Gray, 580, Hazen v. Boston & M. Railroad Co. 1 Marsh. 364, Fraily v. Langford. 3 Sumner’s Rep., Baker and wife v. Whiting. 2 Jackson & Walker, 1, Chalmondeley v. Clinton. 6 Wheat. 484, Prevost v. Gratz. 7 Dana, 388, Howell’s heirs v. McCreery’s heirs. 1 Chitty’s Pleading, 107. Oliver’s Practice. 1 Duvall, 271, Salve v. Ewing. 4 Bush, 636, Dye v. Hollánd. 4J. J. Marsh. 77, Crane v. Prather. 2 B. Mon. 65, Ewin v. Ware. 2 Gavin & Hord’s Statutes, 158. 9Ind. 341, Jones v. Clark. 10 Vesey, jr. 423, Randall v. Errington. 11 Wallace, 236, May v. LeClaire. 20 Ohio, 546, Follett v. Reese. 13 Wallace, 523, Railroad Company v. Soutter. 51 Barb. 45, Hoyle v. Plattsburg & Montreal R. R. Co. 15 Vermont, 519, Wheelock v. Moulton. 25 Vermont, 150, Jackson v. R. & B. Railroad Co. 32 Vermont, 47, C. & P. R. Railroad v. Holton. 12 B, Mon. 271, Grundy’s heirs v. Grundy. .Civil Code, secs. 55, 56, 438-450, 73-81, 748, 874, 875, 86, 88-92, 60-64, 82, 83, 698, 130, 131. Acts of 1796 to 1842, 3 Ky. Statutes (Lough.), 16, 18, 19. Tyler on Infancy and Coverture, p. 206. 2Spence’s Equity Jurisdiction, side pages 379, 398, 61. 2Bihb, 184, Johnson v. Ranldn. 2Bihb, 273, Cox’s heirs v. Strode. 2 Bihb, 314, Barry v. Rogers. ' 2 Bibb, 474, Crittenden’s adm’r v. Craig. 3 Bibb, 107, Parberry’s heirs v. Goram. 3 Littell, 274, Huston v. McOlarty’s heirs. 4 J. J. Marsh. 447, Duncan v. Mizner. 6 J. J. Marsh, 432, Todd v. Sterrett’s legatees. 7 Mon. 61, South’s heirs v. Thomas’s heirs. 2 B. Mon. 78, Eindley and wife v. Patterson’s ex’rs. 3 Vesey, 748, Whichcote v. Lawrence. 2 J. J. .Marsh. 585, Madison’s heirs v. Wallace’s ex’r. 9 Bush, Thomas v. Mahone. 5 Bush, 25, Simmons v. McKay 1 Littell, 154, Cravens v. Dyer. 2 J. J. Marsh. 487, Collard’s heirs v. Groom. 4 J. J. Marsh. 653, Banks v. Johnson. 6 J. J. Marsh. 45, Graham v. Sublett. 3 Met. 425, Smith v. Eerguson. 7 Bush, 505, Brownfield v. Dyer. 6 Bush, 8, Girty v. Logan. 4 J. J. Marsh. 567, Bedell’s heirs v. Lewis’s heirs. 5 J. J. Marsh. 48, Daniel v. Hannagari. 1 Dana, 369, Johnson v. Johnson. 1 A. K. Marsh. 400, Young v. Whitaker. 2 A. K. Marsh. 168, Banta’s heirs v. Calhoun. 2 B. Mon. 546, Schaeffer v. Gates. 8 Peters, 144, Bank of United States v. Ritchie. 8 Clark (Iowa), 17, Ralston v. Sahee. 1 J. J. Marsh. 413, Thompson v. Clay. 2 A. K. Marsh. 501, Estill’s heirs v. Clay. 3 Mon. 525, Durrett v. Simpson’s representative. 3 Met. 139, Vandever v. Vandever. 2 Duvall, 146, Ogle v. Clough. 26 Iowa, 455, Stanley v. Moore. 18 B. Mon. 581, Martin v. Letty. 18 B. Mon. 601, Manion’s adm’r v. Titsworth. 18 Mich. 373, Bower v. Earl. 18 B. Mon. 558, Pond v. Doneghy. CITED Civil Code, secs. 55, 574, 579, 581, 111, 119, 125, 159,161,162, 438-450, 131, 543, 399. 1 Duvall, 192, Longest’s adm’r v. Tyler’s ex’r. 4Cowen, 718, Hawley v. Cramer. 2 Johns. Ch’y, 271, Devan v. Fanning. 4 Vesey, jr. 417, Lord Hardwicke v. Yernon. 5 Yesey, jr. 707, Ex parte Reynolds. 6 Yesey, jr. 625, Ex parte Lacey. 6 Yesey, jr. 631, Lester v. Lester. 1 Peters’ O. C. Rep., PreVost v. Gratz. 5 Pick. 519, Harrington v. Brown. 6 Halst. 585, Dunn v. McKnight. . 1 Gilman, 627, Thorp v. McCullum. 1 Sugden on Vendors, 286-288. 3 Sugden on Vendors, 244r-245. 1 White & Tudor’s Leading Cases, 167-169. 1 Bush, 511, Faucett v. Faucett. 1 Hill’s Ch’y, 253, Ex parte Wiggins. 5 YeseyK 678, Campbell v. Walker. 3 Phillips on Evidence, notes 339-340. 3 DeGex & Small, 736, Sibbering v. Belcarras. 8 DeGex, McN. & G. 132, Wright v. Yanderplank. 3 DeGex, Fisher & Jones, Wall v. Cockerell. 1 Hare, 55, Jones v. Smith. 2 Leading Cases in Equity, pages 112-116. 2 Watts, 78, Kearns v. Swope. 5 Ohio, 70, Woodworth v. Paige. 6 Wallace, 83, Wilson v. Wall. 14 B. Mon. 217, Payne v. Witherspoon. 18 B. Mon. 560, Pond v. Doneghy. 32 Beavan, 467, Wentworth v. Lloyd. 14 Ohio, 51-57, Wade v. Pettibone. 20 How. 366, Goodman v. Simonds. 26 Maine, 484, Butler v. Stevens. Bacon’s Abridgment, title “Infancy and Age.” Story’s Equity Pleading, section 209. Brown’s Chancery, 225. Revised Statutes, chap. 63, sec. 5, art. 4, 2 Stanton, 132. Parsons on Partnership, 440, 441. Kerr on Frauds, Am. ed., 299, 301-308. Cooper, 201, Gregory v. Gregory. Sugden on Vendors, 163-164. Lewin on Trusts, side page 470. Perry on Trusts, sec. 197, and cases cited. Tyler on Infancy and Coverture, 203, 205, 206. 8New Hampshire, 264, Rogers v. Jones. 1 Met. 602, Mitchell v. Berry. 6 Bush, 495, Norman v. Norman. 2 B. Mon. 94, Boyce v. "Waller. 1 Chitty’s Pleadings, 461. 4 Dana, 429. 2 Johnson, 102, Mockey v. Grey. 8 Johnson, 419, Alderman v. Tirrell. 4 J. J. Marsh. 525. 6 Dana, 108. 1 Nev. & Maw. Rep. 635, Castledine v. Mundy. 4 Barn. & Ad. Rep. 90. 2 Bibb, Meredith v. Sandels. 8 Bush, 410, Roach v. Hudson. 7 Smedes & Marsh. 409, Scott v. Freeland. 3 Smedes & Marsh. 683, Ayres v. Mitchell. 1 Dana, 30, Hoggins v. Becraft. 7 Mon. 61, South’s heirs v. Thomas. 2 B. Mon. 78, Findley v. Patterson. 1 Met. 510, Helm v. Bently. 2 Williams on Executors, pages 1481-83. 9 Paige, 178, Evans’s ex’r v. Evans. 7 How. U. S. 23A-258, Wagner v. Baird. 1 Russell & Mylne, Champion v. Rigby. 18 Beavan, Baker v. Reed. 21 Grattan (Va.) 247, Carter v. Allan. 29 Howard’s Prac. Rep. 278, Bayler v. McAvoy. 17 111. 522, Eolarsbe v. Kilbreth. 11 Ohio, Wade v. Pettibone. 33 Miss. 215, Jones v. Smith. 13 Smedes & Marsh. 583, Johnson v. Jones. 11 B. Mon. 191, Duckett v. Crider. 18 B. Mon. 601, Manion v. Titsworth. 18 B. Mon. 581, Martin v. Letty. 10 B. Mon. 88, Dudley v. Price. 5 Coop. Eq. 108, 109. ■ Eonbl. Eq. 237. Printed Decisions (Sneed’s Rep.) 235, Horine v. Wood. 1 Littell, 155, Cravens v. Dyer. 2 J. J. Marsh. 487, Collard v. Groom. 4 J. J. Marsh. 653, Banks v. Johnson. - 6 J. J. Marsh. 45, Graham v. Sublett. 5 Bush, 35, Simmons v. McKay. 6 Bush, 8, Girty v. Logan. 1 Ala. 389, Walker, &c. v. Hallett. 2 Swan (Tenn.) 197, Robinson v. Robinson. 9 Cal. 616, Gray v. Palmer. 2 Ala. 379. 2 J. J. Marsh. 44. 9 Paige’s Ch’y R. 256. 1 McLean, 174. 1 Ohio, 544, Sturges v. Longworth. 5 J. J. Marsh. 49, Daniel v. Hannagan. 4 J. J. Marsh. 567, Bedell v. Lewis. 7 J. J. Marsh. 129, Frost v. Smith. 1 Dana, 369, Johnson v. Johnson. 3 Dana, 35, Ohalfant v. Monroe. 3Hill, 333, Cruikshank v. Gardner. 2 Bibb, 388, Morgan v. Morgan. 3 Dana, 300, Ullery v. Blackwell. 1 J. J. Marsh. 198, Burris v. Johnson. 7 Dana, 419, Carr v. Bob. 7 Mon. 215, Wilkerson v. Perrin. 5 Dana, 52, Stewart v. Wilson. 4 Mon. 383, Russell’s heirs v. Craddock. 1 J. J. Marsh. 416, Thompson v. Clay. 5 J. J. Marsh. 647, Johnson’s heirs v. Fox’s heirs. 19 Wendell, 96, Shepherd v. Hibbard. 16 Ala. 514, Hodges v. Wise. 24 Miss. 156, Stanton’s heirs v. Pollard. 10 N. H. 444, Sargent v. French. 14 Gray, 179, Swan v. Horton. 12 B. Mon. 46, Rice v. Downing.
72 Ky. 510Tyler's v. Elizabethtown & Paducah Railroad (1872)
Case 54 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. cited Charter of 1870 and Ordinances of the City of Louisville. Act of Incorporation of 1868, and amendments thereto of appellee. 3 Bush, 592, Griffin v. Insurance Company. 9B. Mon. 526, Talbott v. Dent. 2Met. 56, Maddox v. Graham. 2 Met. 171, Bullock, &c. v. Curry, &c. 3 Met. 140, W. & Mt. S. T. Co. v. Clarke County. 4 Bush, 154, Clay v. Nicholas County Court. 12 B. Mon. 144, Cov. & Lex. R. R. Co. v. Kenton County. 22 Howard, 364, Aspinwall v. Board of Commissioners. 10 Wallace, 515, Railway Co. v. McClure. 11 B. Mon. 143, Justices of Clark Co. v. P. W. & K. R. T. P. Co. 13 B. Mon. 1, Slack v. Maysville & Lexington R. R. Co. Constitution of -Kentucky, art. 2, secs. 33, 35, 36. Dillon on Municipal Corp., pp. 83, 88, 89, secs. 43, 445, 446. 8 Busk, 209, Shelby County Court v. C. & O. R. R. Co. 8 Bush, 300, Mercer and Garrard Co. Courts v. Ky. R. Nay. Co. 2 Am. Rep. 76, Hoyt v. City of Saginaw. 1Duvall, 295, City of Louisville v¡ Commonwealth. 3 McLean, 265, Weed v. Snow. 3 Bush, 592, Griffin v. Kentucky Insurance Co. 5 Bush, Hamilton v. Keith, &c. 5 McLean,-427, Works v. Junction Railroad. 9 Dana, 522, Lexington v. McQuillan. 17 B. Mon. 335, County Court of Fayette v. L. & B. S. R. R. Co. 26 Maryland, Baltimore v. Horn. 18 Maryland, Baltimore v. Porter. 19 Mich. 259, E. Saginaw M. Co. v. City of East Saginaw. 31 Vermont, 226, Atkins v. Randolph. 15 B. Mon. 642, City of Louisville v. University of Louisville. CITED Elliott’s Ordinances, 734, 162, 735, 758, 767. Session Acts 1851, p. 132. Session Acts 1871-2, p. 441. Revised Statutes, chap. 21, sec. 23. Smith on Contracts, sec. 757. Charter of City of Louisville, secs. 11, 64, 67-69. Charter of City of Louisville, amendment of March 3,1871. Act of February 18, 1873. Cooley’s Constitutional Limitations, 379. Richardson Law, 491, Copes v. Charleston. Constitution of Kentucky, secs. 35, 36, art. 2. Act to increase resources of Sinking Fund, March 15,1869. Ibid., amendment of March 21, 1871. 2 Stanton’s Revised Statutes, 121. 8 Bush, 495, Howell v. Bristol. 3 Ohio Cond., top-page 687. 5 Mass. 380, Pease v. Whitney. 9 Pick. 91, Vinton v. Welsh. 3 Pick. 344, Nickels v. Bertram. 4 Wall. 554, Von Hoffman v. Quincy. 2How. 187, Vidal v, Girard. 8 Bush, 209, Shelby County Court v. C. & O. R. R. Co. 9 Bush, Allison v. Louisville, H. & W. R. R. Co. 9 Ind. 78, City of Aurora v. West. 8,Leigh, 120, Goddin v. Crump. 2Met. 56, Maddox v. Graham. 2 Met. 350, Cypress Pond D. Co. v. Hooper. 8 Bush, 320, Dissenting Opinion. 9 B. Mon. 302, Gaines v. Gaines. 1 N. H. 203, Merrill v. Shadbourne. 4 Greene, 1, Dubuque v. Railroad Co. 3 Iowa, 15, Clapp v. Cedar County. 9 B. Mon. 526, Talbott v. Dent. 3 Kern. 143, Town of Guilford v. Supervisors of Chenango. 4 Comst. 419, People v.' Mayor of Brooklyn. 6 Allen, 353, Corporation v. Norfolk County. 2 Parsons on Contracts, 515, 516. 3 Paige, .45, Beckman v. Saratoga & Schenectady R. R. Co. 3 Dallas, 171, Hylton v. United States. 4 Dallas, 14, Cooper v. Telfair. 9 Dana, 514, Lexington v. McQuillan’s heirs. 6 Iowa, 330, McMillen v. Boyles. 42 Barb. 632, King v. Brooklyn. 15 Wend. 241, Mitchell v. Halsey. 12 B. Mon. 150, C. & L. R. R. Co. v. Kenton County. 13 B. Mon. 17, Slack v. Maysville & Lexington R. R. Co. 15 B. Mon. 363, Sage v. Dillard. 12 Mass. 546, Phillips’s Academy v. King. 15 111. 203, Cowgill v. Long. 12 Md. 205, Slate, &c. v. Norwood. 13 Cal. 182, Pattison v. Board of Supervisors. 15 Conn. 475, Bridgeport v. Railroad. 21 Penn. 147, Sharpless v. Mayor. 43 Penn. 410, Commonwealth v. Perkins. 58 Penn. 327, City of Philadelphia v. Field. 24 Wend. 65, Thomas v. Leland. 30 Cal., Napa Valley R. R. Co. v. Napa County. 13 Wall. 146, United States v. Kline. 18 How. Pennsylvania v. Wheeling Bridge Co. 10Wis. 136, Clark v. Janesville. 10 Wis. 195, Bushnell v. Beloit. 19 111. 406, Prettyman v. Supervisors. 21 111. 451, Robertson v. Rockford. 24 111. 75, Jackson v. Stark County. 24 111. 208, Perkins v. Lewis. 27 111. 474, Butler v. Dunliam. 45 Barb. 218, People v. Mitchell. 24 Barb. 232, Grant v. Courter. 18 N. Y. 38, Bank of Borne v. The Village of Rome; 24 Barb. 252, Benson y. Mayor of Albany. 24 Wend. 65, Thomas v. Leland. 13 Pick. 60, Norwich y. County Commissioners. 27 Cal. 175, People v. Pachico. 14 Mass. 345, Adams v. Howe. 16 Pick. 95, Wellington v. Petitioners. 30 Iowa, 1, Stewart v. Board of Supervisors. 35 N. Y. 550. 28 N. Y. 605. 18 N. Y. 38. 29 Conn. 174. 12 Ohio St. 596. 14 Ohio St. 569. 36 Ala. 410. 22 Cal. 379. 49 Mo. 407. 39 Mo. 485. 27 Miss. 209. 8 La. 341. 28 Texas, 19. 29 Barb. 442. 26 Cal. 650. 1 Ohio St. 437.
72 Ky. 522Louisville & Portland Canal Co. v. Murphy (1872)
Case 55 — PETITION, ORDINARY APPEAL PROM JEEEERSON COURT OE COMMON PLEAS. CITED Shearman & Bedfield on Negligence, sec. 345, note 5; secs. 472, 10, 384, 392, 11, 48. Act incorporating appellant, Sess. Acts, 1825, p. 167. Bevised Statutes, 2 Stanton, 510. 2 Met. 146, Chiles v. Drake. 3 Sel. 498, City of Buffalo v. Holloway. 8 Bush, 220, Commonweath v. Cook. 2 Duvall, 576, Board Int. Imp. of Shelby County v. Scearce. 8 Bush, 397, Boots v. Merriwether. 16 Barb. 94, Van Schaik v. Winne. 16 B. Mon. 577, Kountz v. Brown. 14 B. Mon. 83, Hill v. Wintersmith. 25 Barb. 600, Brooks v. Buffalo. 57 Penn. 172, Glassy v. Hestonville. 45 N. Y. 129, Bequa v. The City of Boehester.. 2 Chitty’s Pleading, 213. Code, section 116. 6 American B. 52. CITED Myers’s Civil Code, sec. 646, amend. Feb. 2, 1866; sees. 161, 368, 879. 7 Bush, 235, L., C. &. L. R. R. Co. v. Mahpny’s adm’x. 1 Duvall, 102, 103, Newton v. Prather. .3 Met. 29, Dodds v. Combs. 2 Met. 88, Riggs v. Maltby. 5 Bush, 206, Slater v. Sherman. 1 Chi tty’s Pleading, 214, 224, 222, 234, 231. 2 Met. 149, Chiles v. Drake. 1 Bibb, 179, Hubbard v. Prather. 4 Ohitty’s Blackstone, side pp. 199, 200. 2 Duvall, 577. 47 Penn. St. 305, Phil. & Reading R. R. Co. v. Spearan. 22 111. 271, Galena & Chicago R. R. Co. v. Dill. 16 N. Y. Rep. 476, Roler v. N. Y. Central R. R. Co. 32 Barb. 169, Bernhardt v. Rensselaer & Saratoga R. R. Co. 24 Howard’s Pr. 176-7, Keller v. N. Y. Central R. R. Co. 59 Penn. St. 263-4, Penn. R. R. Co. v. Barrett. 19 Conn. 566-9, Beers v. Housatonic R. R. Co. 17 111. 519, Galena & Chicago R. R. Co. v. Yarwood.
72 Ky. 535Kinkead v. McKee (1872)
1. The extent oe the power oe the civil courts to revise the decisions oe church courts. — While the civil courts can not disturb the action of church courts upon matters purely religious, they may interfere where property belonging to a church organization and dedicated for religious purposes has been taken from its members by the mere arbitrary will of those constituting the judicature of such organization without regard to any of the regulations or constitutional restraints by which, according to the principles and objects of such organization, it was intended that such property rights should be protected. 2. Those having control of church property under a particular church organization have no power to transfer it to a different sect or denomination, or to divert it from the purposes for which it was dedicated, when in violation of the fundamental law upon which the organization is based. (Watson, &e. v. Avery, &c., 2 Bush, 360; Gartin v. Penick, 5 Bush, 113.) 3. Who are entitled to elect the trustees oe Center College. Center College was endowed in 1824, upon condition that the Synod of Kentucky of the Presbyterian Church should have the privilege of electing its trustees, the contract providing, “And to prevent doubts about the body called the Synod of Kentucky, who shall be thus electors of trustees, it is understood that it is and shall be the body of the Presbyterian clergy and elders, in connection with the General Assembly of the Presbyterian Church in the United States of America, who meet annually as a synod in the state of Kentucky, of whatever individuals they may be composed at the time of their annual meeting, and as such are capable of being identified in fact at each meeting.” Held, that the Synod of Kentucky, adhering to the General Assembly of the Presbyterian Church of the United States, had the right to elect the trustees of Center College; and the courts can not refuse to enforce this positive contract, even though the General Assembly may have so disregarded the organic law of the church¡ government as to compel many of the members of that church t® throw off their allegiance to it.
72 Ky. 541Cook v. College of Physicians & Surgeons (1872)
1. The writ op mandamus is an order op a court op competent AND ORIGINAL JURISDICTION COMMANDING AN EXECUTIVE OR ministerial oppicer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law, and is granted on the motion of the party aggrieved, or the commonwealth when the public interest is affected. (Sec. 526 of the Civil Code.) 2. A Mandamus will not lie against a private corporation, or the officers thereof, intrusted with the performance of no governmental function, and having no right to exercise any power of a public nature. 3. Mandamus is confined, in its application to certain classes of persons; and the courts can not, upon the general idea that the Code should be liberally construed, extend it to other persons than those embraced by the classes named. 4 The Code op Practice is not a statute granting rights, but one defining remedies,for the enforcement of rights. 5. The College of Physicians and Surgeons of the City of Louisville and its officers are not in any sense executive or ministerial officers, and they can no more be reached by mandamus than can a private individual.
72 Ky. 547Wills v. Lochnane (1873)
Case 1 — PROBATING WILL APPEAL FROM CLARK CIRCUIT COURT. CITED 1 Duvall, 259, Sarah, &c. v. Miller, &c. 5 Mon. 202, Alsey Howard’s will. 2 J. J. Marsh. 342, Elliott’s will. 9 Dana, 440, Weir’s will. 2 B. Mon. 79, Reed’s will. 7 B. Mon. 198, James v. Langdon. 7 B. Mon. 658, Howard v. Coke. 13 B. Mon. 270, Hawkins v. Grimes. 17 B. Mon. 395, Tudor v. Tudor. 18 B. Mon. 64, Overton v. Overton. CITED Const, of Ky., seo. 12 of Bill of Rights. Magna Charta, chapter 29. 1 Duvall, 203, Harrel v. Harrel. 2 Bush, 557, Smith, &c. v. Kelly, &e. 2 Bush, 614, Kevil, &c. v. Kevil, &c. 4 Kent’s Commentaries, side page 13.
72 Ky. 551Commonwealth v. O'Daniel (1873)
Case 2 — BAIL BOND APPEAL EROM MARION CIRCUIT COURT.
72 Ky. 553Rankin & Zahn v. Commonwealth (1873)
1. Presumption in favor of judicial acts. — A defendant charged with disorderly conduct was required to give bond “to keep the peace and he of good behavior.” In a proceeding on the bond— Held, that as the record does not show the evidence on the trial of that charge, it must he presumed that it was such as to authorize the requiring of the bond. 2. Bond to keep the peace not forfeited by drunkenness— Drunkenness and disorderly conduct not breaches of the peace. — A conviction of the offense of drunkenness and disorderly conduct is not necessarily a conviction of an offense involving a breach of the peace, and does not authorize a forfeiture of a bond “to keep the peace and he of good behavior” without a direct proceeding to forfeit the bond.
72 Ky. 556Wilgus v. Commonwealth (1873)
Leaseholds to be listed por taxation as personalty. — A lease for ninety-nine years, with a provision for perpetual renewal, is personalty, and is not to be listed for taxation as real estate. Its value is to be included in the tax-book as personal property, under the head of “ Value under the Equalization Law.”
72 Ky. 559Louisville, Cincinnati & Lexington R. R. v. Cavens's administrator (1873)
1. Liability of a railroad company for injuries to one employee RESULTING FROM THE NEGLIGENCE OF ANOTHER. — A freight-train, drawn by a defective engine, burdened beyond its capacity, fell behind its time near four hours on its way from Lexington to Louisville, and when endeavoring to ascend a grade near Lagrange at night, with no signals or lights behind, was run upon by an extra train which had been ordered from Midway to Lagrange by the train-dispatcher of the company, whose duty it was to regulate the running of delayed, and extra trains, no notice having been given to the extra train at any of the stations of the delay of the other. In the collision the engineer of the extra train was killed, without the fault of himself or any one on his train. Meld, That the train-dispatcher and the conductor of the freight-train were guilty of gross negligence, and the company is liable to the personal representative of the deceased engineer in damages for the loss of his life. 2. Where one enters into the service of another he assumes to run all the ordinary risks pertaining to such service, and this means only that he can not recover for any injury that his employer by the exercise of ordinary care and prudence could not provide against. 3. Where a number of persons contract to perform service for another, the employees not being superior or subordinate the one to another in its performance, and one is injured through the negligence of another, they are regarded as the agents of each other, and no recovery can be had against the employer. 4. But a subordinate in the same service can recover against the employer for the negligence of other employees who had the right and power to control and direct him, or who were his superiors with reference to the discharge of the duties pertaining to the work, or over whose actions he had no control or the right to advise. (2 Duvall, 114; 4 Bush, 507; 7 Bush, 235.) 5. The employees of a railroad company controlling and directing the movements of one train must, with reference to those controlling another, be regarded as the agents of the company, and the company is responsible for injuries to a person of the one class resulting from the negligence of one of the other. 6. Phonographic report of testimony should not he sent to the jury without the consent of the parties.
72 Ky. 569Anderson v. Commonwealth (1873)
Cases 6-8 — INDICTMENTS APPEAL EROM MERCER CIRCUIT COURT.
72 Ky. 572Auditor v. Ballard (1873)
Case 9 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. CITED 7 Dana, 29, Lee v. Trustees of Flemingsburg. CITED 4 Barn. & Adolphus, 621, Williams v. Carwardine. 1 Story on Contracts, page 469. 3 Met. (Mass.) 352, Wentworth v. Day. J1 Met. (Mass.) 411, Loring, &c. v. City of Boston. ¡ 6 Met. (Mass.) 344, Symms v. Frazier. t * 4 Meeson & Welsby, 16, Lancaster v.-Walsh. 3 Com. B. Rep. 254, Thatcher v. England.* 2 Bush, 140, Stephens v. Brooks^- 26 Ind. 199, Dawkins v. Sappington. 12 O. & B. (N. S.) 740, Neville v. Kelly. ^ 16 Ind. 140, Harson v. Pike. 12 Gray (Mass.) 330, Jenkins v. Kilrin.
72 Ky. 576Dudley v. Kentucky High-school (1873)
Case 10 — PETITION EQUITY APPEAL PROM PRANKLIN CIRCUIT COURT. CITED Angelí & Ames on Corporations, secs. 547, 549. Code, sections 326, 327, 314. 1 Session Acts of 1871, p. 315, incorporating appellee. 1 Dana, 109, Lamaster v. Lair. 2 Met. 324. 4 Bush, 413.
72 Ky. 580Duncan v. Kennedy (1873)
Cases 11,12 — PETITIONS EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. cited Kentucky R. S., section 11, chapter 30. Wigram on Wills, 162,183, 726. Hill on Trustees, 384, 249. P. Wm. 294, Newland v. Shepherd. 3 Redfield on Wills, 425. 2 Redfield on Wills, 116, 313, 308, 460, 126. 1 Redfield on Wills, 430, 427, 596. 2 Williams on Executors, 1349. 1 McCarter, 124, Leigh v. Savidge. 1 Johnson’s Ch’y, 494, 207, Earl v. Grim. 2 H. Blackstone’s R. 444, Smith v. Coffin. 4 Vesey, 41, Phillip v. Chamberlain. 8 Vesey, 617, Sadler v. Turner. 6 B. Mon. 98, Barclay v. Dupuy. 6 Bush, 651, Brown y. Brown. 4 Bush, 160, Wells y. Newton. 5 Bush, 276, Thomas y. Capps. 8B. Mon. 601, Stephen v. Walker. 13 B. Mon. 293, Wheeler y. Dunlap. 10 B. Mon. 346, Hunt y. Johnson. 18 B. Mon. 371, Williamson y. Williamson. 18 B. Mon. 864, Driskell y. Hanks. 11 B. Mon. 32, Lackland v. Downing. 12 B. Mon. 656, Moore y. Moore. 15 Yesey, 103, Leigh y. Leigh. 11 B. Mon. 81, Arnold v. Arnold. CITED Jarman’s Bule 16. 1 Redfield, 427. Dwarris on Statutes, 145. Johns. Eng. Ch’y, 276, Barnard v. Minshall. 1Redfield, p.471, sec. 35, “or” and “and” interchanged. Ibid. 473, “if” and “when.” 8 B. Mon. 601, Stephen y. Walker. 9 Dana, 41, King y. Bullock. 8 B. Mon. 848, Singleton’s will. 1 Mon. 25, Chinn v. Respass. 7 Bush, 368, Stewart v. Barrow. 3 Bush, 623, Stewart v. Brady. 2 Will Ex’rs, page 796. 1 Marsh. 217, Baird y. Rowan. 2 Met. 129, Wren v. Hynes. 3 J. J. Marsh. 321, Berry y. Headington. 2B. Mon. 462, Pattie v. Hall. 2 Redfield on Wills, p. 116 and note 32. 3 Barb. Ch’y, 466, Cronner v. Pinkney. 3Mon. 279, Adié y. Cornwell. 5 Dana, 431, Birney y. Richardson. 1 Redfield, 422-3. Jarman’s Rule 23. 1 Redfield, 432-3. Jarman’s Rule 24. 1 Kent, 162. 3 Russ. 365. 12 B. Mon. 115, Hughes v. Hughes. 10B. Mon. 474, Tihbatts y. Berry. 12 B. Mon. 642, Carroll y. Carroll. 12 B. Mon. 46, Webb y. Webb. CITED Story’s Equity Jurisprudence, secs. 179, 181. Williams on Executors, 1109. Williams on Executors, p. 1131, n. 1. Williams on Executors, 1145. 2 Redfield on Wills, 635. 1 Stanton’s Revised Statutes, p. 426, sec. 17. 1 Jarman on Wills, 465, top page 431. 1 Jarman on Wills, 23d Rule. 1 Redfield on Wills, 465-6, 428, 23d Rule. 2 Met. 129, Wren v: Hynes. 7 Bush, 114, Harris v. Berry 8 B. Mon. 616-622, DeBoe v. Lowen. 7 B. Mon. 632, Danforth v. Talhot. 2 Redfield on Wills, p. 685, par. 47. 9 Cushing’s Reports, 916. 2 Stanton’s Revised Statutes, p. 227, sec. 7. 12 B. Mon. 643, Robb v. Belt. 14 B. Mon. 260, McKay v. Merrifield. 23 Penn. St. 9, Smith’s appeal. CITED Eearnis’s Contingent Remainders, sec. 59. Revised Statutes, chap. 30, sec. 17. 8 Vesey, 617, Sadler v. Turner. 1 Redfield on Wills, pp. 400, 402, 408. 8 B. Mon. 56, Pope’s ex’rs v. Elliott. 8 Bush, 141, Carlin’s adm’r v. Carlin. 2 Redfield on Wills, 262. 10B. Mon., page 344.
72 Ky. 590Franklin Ins. v. Louisville & Arkansas Packet Co. (1873)
1. Contract of a foreign insurance company held void — It MUST FIRST COMPLY WITH THE KENTUCKY STATUTE. — A contract of insurance made in Kentucky by a foreign insurance company, which has failed to comply with the conditions prescribed by the law of this state as precedent to the transaction of business therein, is void, and no recovery can be had thereon. 2. The act of March 12, 1870, prescribing the terms and conditions on which foreign insurance companies are permitted to transact business within this state, is not a mere revenue measure, but is intended to prohibit the business itself, so far as carried on in violation of the act. 3. The foregoing rule applies where' the policies were delivered in this state and the premium notes taken in this state by a person compensated by the foreign company therefor, whether he was an accredited agent of the company or a mere insurance broker.
72 Ky. 593Mickey v. Commonwealth (1873)
1. What is a sufficient reference to instructions in the bill of exceptions. — In this case the bill of exceptions states that “ the court, on motion of the commonwealth’s attorney, instructed the jury as follows, to wit” (giving the instructions), and that “the court instructed the jury as follows on motion of defendant” (giving them). It will be presumed that the statements in the bill of exceptions are true, and that these were all the instructions given. 2. A JURY SHOULD NOT BE COMPELLED TO CONSIDER THE INDICTMENT in order to ascertain the meaning of the instructions of the court. (1 Met. 370; 2 Met. 287.) 3. The several persons present at a homicide may be guilty in different degrees, as one of murder and another of manslaughter; for if there be no malice in the person striking, but malice in an abettor, it will be murder in the latter, though only manslaughter in the former. So it may be murder in the party striking the fatal blow, and only manslaughter on the part of the abettor. (1 East. P. C. 121; 1 Hale, 446; Russell on Crimes, 510.) 4. One can not be convicted of murder as an aider and abettor of others who committed the deed, unless it appears either that he had confederated with them to make the attack, or to commit a felony or trespass, or that, being aware of the malice by which they were actuated, he aided, abetted, or encouraged them in the perpetration of the offense. (1 Hale, 446.) 6. Reasonable doubt. — As it is impossible to define precisely in a few words what a reasonable doubt is, courts instructing juries in criminal eases should make no such attempt, but merely follow the language of the Code, that “ where there is a reasonable doubt of the defendant being proven guilty he is entitled to an acquittal.”
72 Ky. 599Kinnison v. Carpenter (1873)
Case 15 — PETITION ORDINARY APPEAL EROM BULLITT CIRCUIT COURT. CI.TED Revised Statutes, 1 Stanton, 246, 247. Angelí on Limitations, 123-129. 1 Marsh. 306, Bank of Kentucky v. Haggin. 1 Dana, 12, Commonwealth v. Chambers. 18 B. Mon. 299, Ellis v. Kelso. 26 Conn. 324, Bank of Hartford v. "Waterman. CITED Angelí on Limitations, 5th edition, p. 68. Revised Statutes, 2 Stanton, 127. 4 Moore’s Rep. 508, Brown v. Howard. 5 Bing. 73, Howell v. Young. 2 Johnson, 137, McKerras.v. Gardner. 1 Law and Equity (English), 44. 6 Cowen, 238, Bank of Utica v. Child. 5 B. & Ores. 259. 6 Ohio, 176. 9 Wendell, 287. 15 Ala. 72. 1 Sandf. 98. 15 Iowa, 158. 4 Ala. 495. 16 Mass. 68 and 456. 4 Peters, 172. 18 B. Mon. 209, Ellis v. Kelso.
72 Ky. 609United Society of Shakers v. Underwood (1873)
Cases 16,17 — PETITIONS ORDINARY APPEALS PROM IRAUKLIH CIRCUIT COURT. CITED Turner & Russell, 379, Shepherd v. Towgood. Angelí & Ames on Corporations, 9th ed., secs. 31, 280, 314. Perry on Trusts, section 246. Bouvier’s Law Dictionary, “ Director.” Morse on Banks and Banking, pp. 90, 97, 116, 77. Sup. Court Pa., July, 1872, Spering v. Smith. Edwards on Bailments, page 66. Redfield on Carriers, section 632. Newman’s Ky. PI. and Pr. 406-411. 2 Atkyns, 400, Sutton v. Charitable Corporation. 3 Atkyns, 405, Maddox v. Jackson. 1 Yesey & Beames, 114, Lingard v. Bromley. 7 Simmons, 289, Blain v. Agar. 9 Simmons, 567, Stainbank v. Pernley. 7 Beavan, 176, Attorney-General v. Corporation of Leicester. 6 L. R., Master of Rolls (Eng. L. R.) Turquand v. Marshall. 4 Ch’y App. (Eng. L. R.) Turquand y. Marshall. 2 Acts of Kentucky Legislature, 1865, p. 519. 9Wheat. 907, Bank of U. S. y. Planters’ Bank of Georgia. 3 Wendell, 130, Franklin Ins. Co. y. Jenkins. 1Chitty on-Pleading, side page 78. 1Edwards’s Ch’y R. 87, Verplanck y: Mercantile Ins. Co. 1 Edwards’s Ch’y R. 513, Scott v. Depeyster. 3 Paige, 231, Robinson y. Smith. 6 Paige, 503, Bank Commissioners v. Bank of Buffalo, &c. 3 Mason, 308, Wood v. Dummer. 1 R. 1. 312, -Hodges v. New England Screw Co. 2 Black (S. C. U. S.) 715, Koehler v. Iron Co. 1 O. St. Rep. 310, Qonant v. Seneca Bank. 8 La. (N. S.) 74, Percy v. Millaudon. 1 Dana, 110, Poole v. Adkisson. 4 B. Mon. 178, Gratz v. Redd. • 7 B. Mon. 556, Lex. & Ohio R. R. v. Bridges. 10 Simmons, 77, Seddon v. Connell. 13 Simmons, 477, Elliott v. Turner. 16 Beavan, 495, York & Midland R. R. Co. v. Hudson. 24 Beavan, 661, Williams v. Page. 25 Beayan, 592, Great Luxembourg R. R. v. Magnay. 12 Wendell, 183, People v. Throop. » 38 Barb. 445, Shotwell v. Marli. 30 Ga. 580, Hargroves v. Chambers. 11 Ala. 189, Godbold v. Mobile Bank. 25 Ala. (N. S.) 566, Bank of St. Mary’s v. St. John. 30 Conn. 360, Salmon v. Richardson. Domat, book 2, title 3, section 3. Legal Gazette, July 19, 1872, Spering v. Smith. Story on Agency, secs. 200, 218, 219, 220, 309-320. MS. Opinion, decided 1872, Dowling v. Second National Bank of Cleveland. 3 T. R. 51, Pasley v. Freeman. 2 Seld. 397, Thomas v, Winchester. 3 Wils.. 403, Scott v. Shepherd. ■ 6 Vesey, 496, Coffrey v. Darby. 2 British Law Rep. (Crown Cases) 318, Giblin v. McMullen. 20 Eng. L. & Eq. 129, Gerhard v. Bates. 11 Wend. 374, Allen v. Addington. 17 B. Mon. 439, Lexington Life, Fire, and Marine Ins. Co. v. Page & Richardson. 24 Ga. 274, Schley and others v. Dixon and others. 34 N. Y. 58, N. Y. & N. H. R. R. Co. v. Schuyler, &c. 46 Mo. 140, Coffey v. National Bank of Missouri. 17 Mass. 479, Foster v. Essex Bank. 99 Mass. 605, Smith y. First National Bank of Westfield. 34 Md. 236, Maury, &c. v. Coyle, &c. 11 La. R. 41, Ponchartrain B. B. Co. v. Paulding. CITED Angelí & Ames on Corporations, secs. 312, 314. Morse on Banks, 137-42, 55, 186, 119, 279, 229. Sanders on Negligence, 7-10. Am. Law Review, No. 294, Gibbon v. McMullen. Paley on Agency, secs. 296, 397, 217. Story on Bailments, secs. 404, 507. Withrow’s Corporation Cases, 593. Shear. & Bed. on Negligence, 114, 595. Smith’s Mercantile Law, 82. Broom’s Legal Maxims, 557. Story on Agency, secs. 114, 555, 308, 314, 318. 7 B. Mon. 663, Swigert, &c. v. Graham.’ 4 Dana, 218, Bakewell v. Talbot. 5 Dana, 174, Green v. Hollingsworth. 7 B. Mon. 560, Railroad Co. v. Bridges. 1 Chitty’s Pleadings, 81, 77. 8 B. Mon. 515, Hawkins v. Phythian, &c. 2 Ad. & Ell. 256, Doorman v. Jenkins. 1 American Leading Cases, 244, Coggs v. Barnard. 7 Cowan, 278. 17 Mass. 1. 3 Mason, 132, Tracy v. Wood. 8 Wend. 645, Bank of Niagara v. Johnson. 3 Gray, 309, Bell v. Joslin. 3 B. & S. 34, Watson v. Bussell. 3 Paige, 222, Robinson, &c. v. Smith, &c. 7 Gray, 201, Dow v. Clark. 1 Hilliard on Torts, 48. 2 Hilliard on Torts, 96, 100, 108, 95. 1 Dana, 110, Poole v. Adldsson. 1 Doug. 457, Farm, and Mer. Bank v. Troy City Bank. 7 N. Y. 459, Montgomery Bank v. Albany Bank. 2 N. Y. 126, Calvin v. Holbrook. 2 Denio, 115, Denny v. Manhattan Co. 7 Ohio, 226, Henshaw v. Noble. 4 B. Mon. 178, Grate v. Redd. 7 B. Mon. 556, Lex. & Ohio R. R. Co. v. Bridges. 19 Johns. 223, Butler y. Kent. 11 Barb. 368, Walworth v. Redfield. 17 Mass. 1-32, Salem Bank v. Gloucester Bank. 11 N. Y. 203, Commercial Bank v. Union Bank. 19 Johns. 382, Grinelle v. Swan. 14 Mich. 208, Peninsula Bank v. Hamner. 17 Mass. 479, Foster v. Essex Bank. 99 Mass. 505, Smith v. Nat. Bk. of Westfield. 18 111. 259, 111. Cent. R. R. Co. v. Downey. 14 B. Mon. 213, McClure v. McKey. 12 Wheat. 113, Bank of United States v. Dandridge. 99 Mass. 68, Flint v. Pierce. 17 Mass. 479, Foster’s ex’rs v. Essex Bank. 99 Mass. 605, Smith v. First Nat. Bk. of Westfield.
72 Ky. 624Woodward v. Anderson (1873)
1. A woman has no cause op action against a man for seducing her. 2. Construction op statute in reperence to seduction.&emdash;The statutory provision (Revised Statutes, chap. 1, sec. 2) that “an action for seduction may he maintained without allegation or proof of loss of service” does not give the right of action to any other persons than those who could maintain it at common law. The relation of master and servant or parent and child must appear in the pleading. The dicta in Wilhoit v. Hancock (5 Bush, 567) and Pence v. Dozier (7 Bush) is explained.
72 Ky. 629Dragoo v. Cooper (1873)
Case 19 — PETITION ORDINARY APPEAL FROM NELSON CIRCUIT COURT. CITED Revised Statutes, chap. 63, sec. 2, art. 3. Revised Statutes, chap. 63, sec. 9, art. 4. Plowden, 333, Stowell v. Zonch. M. & Yerg. 361, Cocke & Jack v. McGinnis. 2 Wheat. 29, Melver v. Ragan. 2 Munf. 511, Callis v. Waddy. 3 Murph. 115, Hamilton v. Smith. 9 How. 529. 1 Salk. 210. 2 Bibb, 207, Graves v. Graves. 5 Litt. 281, Stanley v. Earl. 2 Kent’s Commentaries, 6th ed., 478. 1 Lord Raym. 523, Medina v. Stoughton. 7 Bush, 231, Buffington v. Ulen. 20 Johns. 33, Troup v. Smith. 20 Johns. 196, Swett v. Colgate, &c. CITED 2 Stanton’s Revised Statutes, 133. 4 Litt. 377, Mason v. Rogers. 7 Bush, 231, Buffington v. Ulen. 5 Bush, 579, Walker and wife v. Sayers & Hopkins. 10 B. Mon. 172, Phillips v. Pope’s heirs. 20 La. Ann. 336, Hayes v. Hayman.
72 Ky. 633Mershon v. Mershon (1873)
Case 20 — PETITION EQUITY APPEAL EROM GARRARD CIRCUIT COURT. CITED Revised Statutes, chap. 80, sec. 20. Cruise’s Digest, 279. Cruise’s Digest, 32, title “Deed.” Sheppard’s Touchstone, 53. 4 Comyn’s Digest, 74,161. 5 J. C. R. 26, 27. 9 B. Mon. 561, Fitzhugh’s heirs v. Tyler. 3 Washburn on Real Property, 280, 265. 5 Ohio, 199, Douglass v. Scott. 4 Kent, 74. 2 Kent, 456. 1Greenleaf’s Evidence, sec. 23. 3 Wend. 99, Jackson v. Ireland. 5 Bush, 54, Martin v. Martin. 1 Johns. Oh’y Rep. 583, Boyd v. McLain. CITED Myers’s Supplement, 292-5. 4 Mon. 52, Jennings v. Whittaker. 1 Marsh. 493, Kercheval’s heirs v. Triplet’s heirs. 7 Bush, 277, Faris and wife v. Dunn, &e. 2 Marsh. 143, Burdit’s ex’rs v. Burdit, &c. 2 Stanton’s Revised Statutes, 126. 3 Met. 397, Com v. Sims. 4 Dana, 55, Poage’s heirs v. Chinn’s heirs.
72 Ky. 640Johnson v. De Hart (1873)
Case 21 — PETITION EQUITY APPEAL PROM ELLIOTT CIRCUIT COURT. CITED Constitution of Kentucky, art. 8, sec. 15. Acts of 1869-70, p. 119, sec. 2. CITED Constitution of Kentucky, art. 4, sec. 37. Revised Statutes, chap. 27, art. 21, sec. 2.
72 Ky. 645Louisville, Cincinnati & Lexington Railroad v. Hedger (1873)
Case 22-PETITION ORDINARY- APPEAL EROM KENTON CIRCUIT COURT. CITED Smith’s Mercantile Law, side page 254. Acts Kentucky Legislature, approved Feb. 28,1848, see. 20. Acts Kentucky Legislature, approved Feb. 8, 1870. Hilliard on Law of Torts, 562. Chitty on Contracts, 483. Story on Bailments, sec. 549, p. 553. 1 Smith’s Leading Cases, 101. 7 Exeh. 712, 773, Carr v. Lancashire & Yorkshire R. R. Co. 2 Redfield’s Law of Railways, 80. 2 Greenleaf on Evidence, sec. 215, p. 176. 6 How. 344, 382, N. J. S. N. Co. v. Merchants’ Bank. 3 Wall. 107, York Co. v. Central R. R. 1 Daily, 227 (N. Y. C. P., 1862), Moriarty v. Hamden’s Ex. Co. 2 Duvall, 563, Adams Ex. Co. v. Nock. 3 Busk, 194, Orndorff v. Adams Ex. Co. 7 Busk, 499, Adams Ex. Co. v. Loeb & Bloom. 21 Mick. 165, Mick. S. & N. Ind. R. R. Co. v. McDonough. 14 N. Y. 573, Clark v. Rochester R. W. Co. 34 Md. 197, Bankkard v. Baltimore & Ohio R. R. Co. 20 Md. 202, McCann v. Baltimore & Ohio R. R. Co. 43 N. Y. 264, Blossom v. Dodd. 25 N. Y. 442, Bissell v. N. Y. Central R. R. Co. 12 B. Mon. 63, Reno v. Hogan.' 11 N. Y. 485. 24 N. Y. 181. 25 N. Y. 442. 20 N. Y. 173. CITED Newberry R. 464, The May Queen. Chitty on Carriers. 1 Oregon, 40.9, Seiler v. The Pacific. 8 Wall. 342, Express Co. v. Kountze. 3 Wall. 107, York Co. v. 111. Cent. R. R. Go! 4 McLean, 259, Pendell v. Bench. 4McLean, 325, Burritt v. Bench. 6 McLean, 76, Hunt v. The Cleveland. 3 Western Law Monthly, 78. 2 Dana, 431. . 5 Black, 518. 21 How. 7, Niagara v. Cordis. 21 Wend. 355, Camden & Amboy R. R. Co. v. Belknap. 20 Conn. 354. 24 How. 386.
72 Ky. 652Lee v. Burgess & Graham (1873)
1. A COMMON CARRIER IS ONE WHO CARRIES PASSENGERS OR GOODS, WARES, AND MERCHANDISE POR COMPENSATION, and the true principle of his liability is in the reward he receives. (2 Parsons on Contracts, 163; 6 Wend. 354.) 2. Money and bank-bills may por certain purposes be regarded AS GOODS, BUT ORDINARILY, IN SPEAKING OP “ GOODS, WARES, AND merchandise,” neither is included, and a common carrier of “goods, wares, and merchandise” will not necessarily be presumed to be a common carrier of money and bank-bills. 3. Where one is sought to be held liable as a common carrier of money and bank-bills, it must be shown that he is such, if that class of carrying is not within the ordinary business in which he.is engaged.
72 Ky. 656Vance's adm'x v. Gray (1873)
Case 24 — MOTION APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. cited 1 Stanton’s Revised Statutes, chap. 36, pp. 473, 491. ' cited Manuscript Opinion, 1869, Bailey v. Villier. 1 Stanton’s Revised Statutes, 473, 491.
72 Ky. 659Robertson & Cleary v. Shutt (1873)
Case 25 — MOTION APPEAL FROM HARRISON CIRCUIT COURT. CITED Myers’s Supp. 685. Session Acts 1871, p. 5. 4 Bush, 16, Stephens & Hermes v. Farrar Bros. CITED Code of Practice, section 407. 2 Parsons on Contracts, 243. 6 Johnson’s Ch’y Rep. 317. 3 Caines, 190, Shermerhorn v. Shermerhorn. 1 Duvall, 89, Harlan v. Lumsden, &c.. 5 Dana, 398, Ely, &c. v. Commonwealth for Horine. 8 Pick. 342. 2 Barb. 258. 16 B. Mon. 354, Finnell, &c. v. Nesbitt, &c.
72 Ky. 663Dawson v. Powell (1873)
Case 26-PETITION ORDINARY- APPEAL PROM CALDWELL CIRCUIT COURT. CITED 1 J. J. Marsb. 459, Lampton’s ex’r v. Preston’s ex’rs. 1 Dana, 112, Poole v. Adkinson. 14 B. Mon. 10, Justice v. Mendell, &c. CITED Code, secs. 221, 299. Acts 1870, p. 90. Myers’s Supplement, see. 1, p. 800.
72 Ky. 665Lawless v. Barger (1873)
1. Ambiguity in decrees to sell “the land described in the petition.” — Where suit is brought to enforce a lien on two tracts of land for the purchase-money, and the decree simply directs the sale of “ the tract of land described in the petition,” without any further description, a sale under such decree will be set aside. 2. A DECREE SHOULD BE, SO CERTAIN AND SPECIFIC IN ITS DIRECTIONS TO the commissioner, in the description of the property to be sold by him, as well as the other duties to be performed in its execution, as would enable that officer to discharge these duties without reference to any other paper or pleading in the cause; and the commissioner’s report should be equally definite.
72 Ky. 669Chrystal v. Commonwealth (1873)
Case 28-INDICTMENT- APPEAL PROM PAYETTE CIRCUIT COURT. CITED Manuscript Opinion, Scott v. Lane. 2 Duvall, 164, Golliher v. Commonwealth. 4 W. Va. 755, Lemons v. The State. 6 American Rep. 298. 2 Bishop’s Criminal Law, sec. 392. 4 Ohitty’s Blackstone, 182. 1 Bibb, 84, Wilson v. McGhee. 20 Ohio, Buckie v. Ohio. CITED Roscoe’s Criminal Evidence, 686. 1 Russell on Crimes, 636. 3 Bush, 113, Sparks v. Commonwealth. 1 Bush, 370, Wilhoit v. Hancock. 1 Marsh. 591, Mobley v. Hamit.
72 Ky. 673Nall v. Springfield (1873)
Case 29 — PETITION 'EQUITY APPEAL FROM WEBSTER CIRCUIT COURT. cited 1 Barb. 157. 1 Doug. (Mich.) 225. Barbour on Parties to Suits, 449. 1 Story’s Equity, section 69. cited Manuscript Op., 1865, Ireland v. Commonwealth. 8 Bush, 336, Tracy & Loyd v. Hornbuckle and wife.
72 Ky. 675Bush v. Groom (1873)
Case 30 — PETITION ORDINARY APPEAL FROM CLARK CIRCUIT COURT. CITED Const, of the United States, 13th amendment. Chitty on Contracts, 734. Littell’s Sel. Cases, 204, Dorsey v. Barber. 6 Mon. 115, Gentry v. Barnett. 9 B. Mon. 106, Scott v. Hughes. 4 Bibb, 270, Carrell v. Early. 2 Dana, 249, Keas v. Yewell. 6 Dana, 121, Laughlin v. Ferguson. 8 B. Mon. 497, Yocum v. Barnes. 4 Bush, 581, Dills v. Cecil. 2 Kernan, 115, Harmony v. Bingham. 4 Bibb, 45, Dorsey v. Cock. 4 Litt. 12, Tibbs v. Timberlake. 4 Bush, 472, Dear v. Brannon. 2 Story, sec. 1307. CITED 4 Mon. 149, Holland v. Bouldin. 2 Greenleaf’s Evidence, 646. 7 J. J. Marsh. 415, Eightmaster v. Beasley. 5 Litt. 324. 6 J. J. Marsh. 531.
72 Ky. 679Carr v. Givens (1873)
Possession by some coparceners, amicable to the others, is a sufficient seizin in fact to invest and sustain an estate by the curtesy in the husbands of such others.
72 Ky. 688Rhodes v. Louisville & Nashville R. R. (1873)
1. Special contracts por the transportation op live-stock on railroads. — A railroad company undertook the transportation of cattle under a special agreement, by which the owner of the cattle assumed all injury, loss, or damage which might he occasioned in certain contingencies, including the escaping of the cattle, and possible injury to them by fright or their own viciousness, as well as any other injury which might happen to them incidental to railroad transportation, not caused by the fraud or gross negligence of the railroad company. Held, that while this special contract devolved on the owner the personal care of the cattle, with the duties and risks connected with it, including the risk of their escaping or being injured in consequence of their own restiveness or viciousness, it did not exonerate the company from responsibility for damages resulting from a failure to provide a suitable and safe car for the carriage of the cattle. 2. If the car furnished was insufficient and unsuitable, the company is responsible for the damage resulting therefrom, even though the restiveness or viciousness of the cattle may have contributed to the injury incurred. 3. Public policy will not permit common carriers by special contracts for carrying freight to limit their responsibility for damages to injuries caused by the fraud or gross negligence of their agents or servants. (Lou., Cin. & Lex. R. R. Co. v. Hedger, p. 645, ante.)
72 Ky. 692Jones v. Hill (1873)
Case 33 — PETITION EQUITY APPEAL FROM MARION CIRCUIT COURT. cited Myers’s Supplement, Act of 1864, p. 207. 2 Story’s Equity, sec. 1040, p. 373. 1 Young & Call. 481, Prosser v. Edmonds. 2 United States Digest, 35. 1 App. 281, Ayrs v. Howell. 1 Stanton’s Revised Statutes, 268. 3 Met. 450, Earle v. Couch. 1 Met. 353, Enders v. Williams. 1 Duvall, 166, Maiders v. Culver. 12 Wend. 297, Gardner v. Adams. CITED Revised Statutes, chap. 47, art. 2, sec. 1. Code, secs. 474, 248, 221, 222, 228. Myers’s Supplement, 684. 8 Bush, 172, Uhrig v. Horstman & Sons. 7 B. Mon. 443, Basham v. Chamberlain. 5 J. J. Marsh. 545, Lyne v. Bank of Kentucky. 1 Dana, 531, Doyle v. Sleeper & Alsop. 4 Mon. 580, Halbert v. Grant. 8 Bush, 533, Stokes & Sons v. Coffey, &c. 1 Dana, 184, Johnson v. Lewis.
72 Ky. 696Bassett v. Bassett (1873)
Case 34 — PETITION EQUITY APPEAL FROM LARUE CIRCUIT COURT. CITED Revised Statutes, chap. 47, art. 3. Chitty on Contracts, 207, 208. 1 Blackstone, side page 131. 4 Blackstone, 30. 2 Kent’s Commentaries, 453. 5 Hill (N. Y. Rep.) 158. 1 Parsons on Contracts, 319, 8. 3 N. H. Rep. 508. 15 Johns. 258.
72 Ky. 699Steele v. Wilson (1873)
A SURETY IS HELD TO BE LIABLE ONLY POR COSTS AND DAMAGES IN A supersedeas bond. — A recovered a judgment against B; B brought a suit in equity to be relieved against the payment of two hundred and thirty dollars of said judgment, and obtained an injunction to stay the collection pending the litigation; the injunction was dissolved with costs and damages; from which B appealed to the Court of Appeals with supersedeas. The judgment was affirmed. Held., that the surety in the supersedeas bond was not liable for the two hundred and thirty dollars enjoined, but only for the costs and damages.
72 Ky. 701Culton v. Commonwealth (1873)
1. Liability of sheriff for failing to collect revenue. — The act of March 22, 1871, providing that persons failing to pay their taxes by the 1st day of April in the year following the assessment therefor shall pay five per cent additional on the tax so due and unpaid, and that the auditor in his settlements with the sheriff shall charge him with the per cent accruing under the provisions of this act, does not authorize a judgment against the sheriff charging him with five per cent upon the whole amount of revenue due from the tax-payers of the county. He should be charged with five per cent upon the amount remaining uncollected on the 1st day of April. This amount is shown by the third report in each year; and should the sheriff fail to make such report, he can be compelled to do so by appropriate legal proceedings. 2. By prosecuting the appeal from the judgment of the Eranklin Circuit Court, rendered on motion of the auditor, the sheriff and his sureties made themselves parties to the proceeding in the circuit court.
72 Ky. 704Wheatly v. Mercer (1873)
Case 37 — PETITION ORDINARY APPEAL FROM MEADE CIRCUIT COURT. CITED Shearman & Redfield on Negligence, 124. Dillon on Municipal Corporations, 764, 176, 214. 2 Stanton’s Revised Statutes, 292, 449, 450. 1 Stanton’s Revised Statutes, 327, 292. 2 Met. 67, Maddox v. Graham & Knox. 18 B. Mon. 852. 3 Oregon Rep. 428. 35 Md. 385. 7 Ohio St. 109. 18 B. Mon. 9, City of Louisville v. Kean. CITED Revised Statutes, chap. 84, secs. 21, 26, 27, 32, 39. Angelí & Ames on .Corporations, sec. 630. 12 Cowen, 404, Ward v. County of Hartford. 2 Nott & McCord, 537. 7 Ohio St. 109. 9 B. Mon. 247. 8 Barb. 645. 1Ohio, 89. 4 Pick. 114. 1 Kent, 572, 573. 8 Met. 292. 2 T. E. 667. 7 Mass. 169. 3 Cushing, 124. 2 Hill, 571. ' 1 Greenleaf, 361. 3 Peters, 409. 3 Harr, (N. J.) 158. 2 N. H. 392. 1 Gillman (111.) 567. 16 B. Mon. 185. 18 Ohio, 16. 36 N. H. 285. 13 Met. 300. 14 Me. 377. 32 Me. 536. 22 Vt. 123. 27 Vt. 443. 17 Conn. 475. 52 Me. 118.
72 Ky. 708Commonwealth v. Todd (1873)
1. Profits realized from the penitentiary under the management prescribed by the legislature are by section 34, article 2, of the constitution sacredly set apart and dedicated to' the sinking fund for the payment of the public debt; but the legislature is not thereby deprived of the power originally reserved to it of regulating the management of the institution. 2. A contract with a lessee of the penitentiary did not ipso facto convert the stipulated rental into a part of the sinking fund; but the contract remained subject to the control of the legislature, to be by it, in its discretion and with the consent of the lessee, modified or altered as justice to the lessee or the purposes for which the prison was founded might require. (Simpson County Court v. Arnold, 7 Bush, 353; McReynolds v. Smallhouse, 8 Bush, 447.) 3. The liability of the lessee of the penitentiary under the acts of 1863 or 1867 to pay rent depended upon the compliance by the state with its undertaking to permit him to enjoy uninterrupted possession of the leased premises, machinery, fixtures, etc., and to employ the convicts at such labor, subject to the regulations prescribed by law, as would be most profitable. 4. The commonwealth had the right, notwithstanding the lease, to make necessary and proper improvements to the prison; but in the exercise of this superior right it could not, in law or good conscience, disturb the possession of the leased premises and interfere with the convict labor which had been guaranteed to the lessee, and at the same time insist that he shall pay the full amount of the rent which he had agreed to pay in case all his rights and immunities under the lease had been sacredly respected. 5. The lessee had the right to set off such damages as he sustained against the rent sued for by the commonwealth; and the fact that he became the contractor to erect such improvements does not preclude him from asserting this right; for in accepting the contract to make the improvements he in a certain sense acted under duress. The state exercised a sovereign power which a mere citizen could not resist. An attempt to do so by declining the contract himself and refusing admittance to another to whom it should be awarded would have placed him in violation of law, and subjected him to suspension and removal from office. (Revised Statutes, sec. 3, art. 1, chap. 74.) And as he was only entitled to his lease so long as he remained keeper, he should not be subjected to the same rule as though his lessor had been a mere individual, possessing no superior powers to himself, in determining whether by accepting the contract to make the improvements to the prison he waived his right to claim damages. 6. The accrued interest on money loaned by the commissioners out of the sinking fund constitutes apart of that fund, and when sued for there can not be set off against it claims that the party sued may have against the general revenues of the state. 7. An ACTION CAN NOT BE, BUT A SET-OEE OR COUNTER-CLAIM MAY BE, MAINTAINED AGAINST THE COMMONWEALTH; but when one is sued by the commonwealth, under that broad principle of justice which allows every one to show as matter of law that he does not owe the demand sued for, he can have his claim against the commonwealth adjudicated to the extent that it is asserted as a defense to shield him, but no further. 8. A party sued by the commonwealth and successful in his defense, while he can not recover costs against it, can not be burdened wdth the general costs of the litigation.
72 Ky. 717Booth's ex'r v. Vanarsdale (1873)
Case 39 — PETITION EQUITY APPEAL EROM SHELBY CIRCUIT COURT. CITED Acts 1871-2, chap. 139, to amend the law of evidence. Code, section 670. 8 Bush, 292, English’s adm’r v. Cropper. CITED Testimony Law of 1872. 5 Bush, 21, Reed v. Lander. 7 Bush, 535, Richmond & Lex. T. Co. v. Rogers. 3 Met. 313, Bowler v. Lane.
72 Ky. 721Fogle's ex'r v. Fogle (1873)
Case 40 — PETITION EQUITY APPEAL PROM MARION CIRCUIT COURT. CITED Revised Statutes, chap. 106. Wigram on Wills, 8. 3 Marsh. 126, Humble v. Humble. 1 Marsh. 103, Martin v. Lewis. 1 Jarman on Wills, 354, 355. 8 B. Mon. 601, Stephen v. Walter, &c. 1 Met. 276, Allan and wife v. Vanmeter’s devisees. 2 Met. 569, Jactson v. Payne’s ex’rs. 13 B. Mon. 292, Wheeler’s heirs v. Dunlap, &c. 17 B. Mon. 61, Mitchell v. Walter. CITED Kerr on Frauds and Mistakes, 452, 453. 1 P. Williams, 345. Wigram on Wills, 121. 2 H. & W.’s Leading Cases, 501. 3 Vesey, 321, Campbell v. French. 1 Jarman on Wills, 170. 10 A. & E, 228, Doe v. Evans.
72 Ky. 728Louisville, Cincinnati & Lexington R. R. v. Case's administrator (1873)
1. Causing death by negligence. — In actions under the act of March 10,1854, for causing death by negligence, the petition need npt state the circumstances from which the neglect is to be inferred; it is sufficient to allege the extent of the injury and the manner of its infliction, and to charge negligence in general terms. 2. Allegation of willful neglect by amended petition is not THE SETTING UP OF A NEW CAUSE OF action. — In an action against a railroad company for causing by negligence the death of a person not an employee of the company an amended petition was filed, alleging that said death was caused by the willful neglect of said company. Held, that said amendment was not an amended petition setting up a new cause of action, but simply an amendment bringing the original cause of action within the third section of the act named, which authorizes the giving of punitive damages. 3. The allegation of willful negligence in an action against a railroad company includes all the inferior grades, and the jury must determine from the proof whether recovery is to be had, if at all, under the first or the third section of the act named, and then assess the damages according to the provisions of the act itself. 4. The power of the court to require special findings by the jury upon particular questions of fact is to be exercised at the discretion of the court. The refusal of the court to require such findings is no cause for reversal in the absence of an abuse of that discretion. 5. Negligence of driver of public conveyance not imputed to passengers.— Where the life of a passenger in a street-railway car is lost by the concurrent negligence of the driver of the car and other persons, such negligence of the driver is no defense in an action against the other persons, such driver not being the agent or servant of the decedent, nor subject to his government or control. 6. Measure of damages for death caused by neglect. — Where death results instantly from injuries caused by neglect of a railroad company other than willful neglect, the jury in estimating damages can only inquire as to the value of the decedent’s power to earn money, which is the measure of damages; it is error to instruct the jury that upon proof of simple negligence they may give “ such damages as they deem just and proper by way of compensation, not exceeding the amount claimed in the petition.”
72 Ky. 738Ullman v. Abrams (1873)
1. A grand juror is not CIVILLY liable in an action for damages for any thing he may have said or any vote he may have given relative to any matter legally before the grand jury. (Criminal Code, sec. 111.) 2. In actions for malicious prosecutions malice must be proven, if denied. Malice may be express, or implied from the absence of probable cause. But as the plaintiff must prove probable cause, proof of want of probable cause devolves on him. The acquittal of the plaintiff by the venire is evidence of his innocence, but does not prove the malice of the prosecutor. The defendant will not be required to prove any thing until the plaintiff shall have given some evidence of malice independent of any inference from the verdict of acquittal. 3. A NEW TRIAL SHOULD BE GRANTED WITHOUT REQUIRING THE PAYMENT OF costs when a party is prejudiced by erroneous instructions.
72 Ky. 745Crawford v. Woodworth (1873)
Case 43 — PETITION ORDINARY APPEAL PROM GREENUP CIRCUIT COURT. CITED Code, secs. 325, 307. 3 Met. 201. CITED 2 Met. 547. 1 Marsh. 321. 4 Bush, 285. 2 Met. 230. 8 Bush, 224. 14 B. Mon. 399.