73 Ky.

Volume 73 — Kentucky Reports

124 opinions

73 Ky. 1Allison v. Louisville, Harrod's Creek & Westport Railway Co. (1873)
Case 1 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED Acts of 1870, 2 Session Acts 1869-70, pp. 426, 626. Act of December 20, 1871. Act of February 18, 1873. Act of February 20, 1873. Constitution of Kentucky, sec. 2, art. 13. 3 Littell, 480, Elmondorff v. Carmichael. 8 Bush, 209, Shelby County Court v. Cumb. & Ohio R. R. Co. 9 B. Mon. 527, Talbot v. Dent. 1 Duvall, 295, Louisville v. Commonwealth. 1 J. J. Marsh. 563, Davis v. Ballard. 7B. Mon. 167, Pearce v. Patton. 2 Met. 350, Cypress Pond Draining Co. v. Hooper, &c. 11 B. Mon. 143, Justices of Clark v. Paris, &c. T. P. R. Co. 13 B. Mon. 1, Slack v. Maysville & Lexington Railroad Co. 58 Penn. 320, Philadelphia v. Field. 45 Barb. 210, People v. Mitchell. 15 B. Mon. 491, City of Covington v. Southgate. CITED Constitution of Kentucky, sec. 29, art. 4. Act to establish a county court for Jefferson County, sec. 16. Dillon on Municipal Corporations, see. 46. Cooley’s Constitutional Limitations, 379. Act of March 22, 1871. Act of February 26, 1873, 1 Session Acts 1873, pp. 319-321. 9 B. Mon. 532, Talbot v. Dent. 8 Bush, 215, Shelby County Court v. Cumb. & Ohio R. R. Co. 2 Redfield on Railways, 396. 9 Bush, 510, Tyler’s ex’r v. E. & P. Railroad Co.
73 Ky. 6Pierce v. Commonwealth (1873)
Case 2—INDICTMENT— FROM TRIMBLE COUNTY COURT. CITED 2 Duvall, 546, Nepp v. Commonwealth. 18 B. Mon. 14, Louisville v. Kean. CITED 3 Bush, 147, Hoglan v. Commonwealth.
73 Ky. 8Baer v. Commonwealth (1873)
1. Selling liquor to minors.—The.only statute imposing penalties for selling, giving, or furnishing spirituous, vinous, or malt liquors to minors without proper authority is the act of March 22, 1871. 2. The indictment failing to show that the accused was a licensed vendor of spirits, the only penalty that could he inflicted was a fine of fifty dollars. 3. The jurisdiction oe the Court oe Appeals in cases oe misdemeanor is limited, hy the act of March 1, 1860, amending section 342 of the Criminal Code, to prosecutions in which the punishment may exceed a fine of fifty dollars.or imprisonment for thirty days, or both.
73 Ky. 9Atkins v. Emison (1873)
1. Execution sale op encumbered property — Purchaser acquires only A lien.' — Since the adoption of the Revised Statutes the purchaser at an execution sale of real or personal property on which there is a bona fide encumbrance acquires only a lien on the . property for the purchase-money paid and ten per cent interest, subject to the prior encumbrance. (Revised Statutes, sec. 1, art. 15, chap. 36 ; Eorrest v. Phillips, &c., 2 Met. 194; Covington Bridge Co. v. "Walker, 2 Duvall, 150.) 2. The legislature never intended that the owner in sueh case should be deprived of his title; but, on the contrary, not only permitted him to redeem, but gave to the purchaser only a lien subordinate to the bona fide encumbrances preceding it. 3. Purchaser may enforce his lien. — Where the defendant in the execution fails to redeem, the purchaser of encumbered property has the right to resort to a court of equity to enforce his lien, and should make all persons interested parties to the action. 4. The lien por the purchase-money is in efpect a junior mortgage, except that when the purchaser acquires the lien by sale under execution it extinguishes the original debt, and the liability on the part of the execution debtor no longer exists, the property alone being bound for it. 5. Purchaser may assail prior encumbrances. — The purchaser of encumbered property at execution sale is not estopped from assailing any encumbrance thereon as void or discharged, although his purchase was. made subject to the prior encumbrances, and their removal by payment or otherwise inures to his benefit by rendering his claim more secure. 6. Payment discharges the prior liens. — The execution debtor will not be substituted to the rights of the holder of the prior lien by paying the debt it secures, but the lien is thereby discharged; and this rule holds also where the lien is enforced by a sale of the property, and it is purchased by a third party with the funds of the execution debtor.
73 Ky. 15Berry v. Commonwealth (1873)
1. Proop op confession — Entire conversation. — If a part of a conversation is relied on as proof of a confession of crime, the accused has the right to lay before the court all that was said in the conversation relative to the matter in issue, and is not confined to that portion which is merely explanatory of the part already proved against him. (1 Greenleaf on Evidence, 218.) 2. The testimony of a witness called to prove a confession is inadmissible as evidence, if he does not remember all the conversation, or at least the substance of all that was said at the time on the subject. 3. Homicide in selp-depense — Danger must be imminent. — To excuse a homicide on the ground of self-defense the slayer must have reasonable ground to believe, and must believe, that he is in immediate danger of losing his life or of great bodily harm from the attack of his assailant. 4. It was error to assume in the instruction that a knife used was a dangerous weapon, and that it was kept concealed, as these were facts for the consideration of the jury.
73 Ky. 21Buckley v. Jenkins (1873)
1. The temporary absence prom the state op a debtor, engaged in the United States military service during tlie late civil war, did not obstruct his creditor, within the meaning of sec. 9, art. 4, of. chap. 63 of the Revised Statutes, from instituting a suit against him on his bond. (Ormsby v. Letcher, 3 Bibb, 269.)
73 Ky. 23Graves v. Lebanon National Bank (1873)
1. A CORPORATION MAY MAINTAIN AN ACTION IN ITS OWN NAME ON THE OEEICIAL BOND OP ONE OP ITS OPPICERS, though, executed to the president and directors, if it was executed for the protection of the corporation. 2. Acceptance op oppicial bond prom its oppicers by a corporation. — It is not essential that banking institutions doing business under the national currency act shall signify their acceptance of the official bonds of their cashiers by a written memorandum to that effect entered upon the journals or minute-books kept by the directory. 3. The acceptance op the cashier’s bond may be presumed from the fact that after being submitted to the directory for approval it was retained, and the cashier permitted to enter upon or continue in the discharge of his duties; and that it was presented to and approved by the directory may be shown by oral testimony. (12 Wheaton, 64; 3 Pickering, 335; 2 Met., Mass., 522; 1 Har. & G. 324; Morse on Banking, 223.) 4. The obligation of the bond. — Where the sureties in the official bond of a bank cashier covenant that he 'will perform the duties of his position, and account for all moneys and other valuables that may pass through his hands, no failure of duty thereafter on the part of the directors short of actual fraud or bad faith can be deemed sufficient to exonerate them from its performance. 5. Concealment from the sureties. — Persons proposing to become sureties to a corporation for the good conduct and fidelity of an officer to whose custody its moneys and other valuables are to be intrusted have a right to be treated with perfect good faith. If the directors are aware of secret facts materially affecting and increasing the obligation of the sureties, the latter are entitled to have these facts disclosed to them, a proper opportunity being presented. 6. A fraud may be perfetrated as well by the assertion of facts that do not exist, ignorantly made by one whom the person acting upon the assertion has the right to suppose has used reasonable diligence to inform himself, as by concealing the facts known to exist which in equity and good conscience ought to be made known. 7. Sureties released because of the concealment of facts from THEM. — The cashier of a national banh, never having executed bond, was guilty of fraud and embezzlement of the funds of the bank, the discovery of which might have been effected by the use of slight diligence on the part of the directory. They, however, published, in accordance with law, a statement of the condition of the bank, from which it appeared that its affairs were being prudently and honestly administered, and from which the public had the right to believe that the cashier was trustworthy. Afterward persons who had seen this report became sureties on the official bond of the cashier, and for his subsequent embezzlements were sought to be held liable thereon. Held, that the sureties had a right to believe that the directors before publishing the statement made some investigation of the condition of the bank, and being misled or deceived by the misrepresentations of the published statement, were released. 8. The legal presumption, where a bond bears no other date than “the — DAY of-, 1869,” is that it did not become binding on the bondsmen until the last day of that year. 9. Defect of parties plaintiff is a fact which can not be raised the first time in the Court of Appeals.
73 Ky. 36Best v. Conn (1873)
Case 9 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT.
73 Ky. 40Bettis v. Allen (1873)
Case 10 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT.' CITED Revised Statutes, chap. 24, sec. 11. 1 Johnson’s Chancery Reports, 398; 2 ibid. 510.
73 Ky. 43Louisville, Cincinnati & Lexington Railroad v. Commonwealth (1873)
1. Taxation op railroads. — A railroad with a chartered privilege of building branch roads, and taxed in proportion to the amount of its capital stock by a provision in its charter, built an extensive branch without increasing the amount of its stock. Held, that the branch road was subject to taxation, and the act of February 20, 1864, regulated the mode of assessment and taxation of the entire road. 2. Tested rights. — The legislature may create corporations, and in consideration of their assuming liabilities and duties grant them rights and privileges that no legislation can afterward, without the consent of the parties interested, impair or diminish. 3. Taxing power never relinquished by inperence. — The taxing power of the state, being of vital importance and an essential attribute of sovereignty, is never presumed to be relinquished unless an intention to relinquish is expressed in clear and unambiguous terms. (Bradley v. McAtee, 7 Bush, 667.) 4. Contract not presumed prom charter pixing tax. — The mere imposition of táxes at the time a charter is granted or afterward upon the property of a corporation will not authorize the assumption that the legislature has contracted that no additional taxation shall be imposed either on the property owned by the corporation at the time of the grant or afterward acquired. 5. The legislature had the constitutional right to pass the act op February 20, 1864, changing the mode of assessing and taxing the railroads in the state, and repealing all laws and charter provisions in conflict with it, unless it be in cases where the state had expressly relinquished the right of taxation in consideration of some public benefit.
73 Ky. 51Duckworth v. Lee (1873)
Case 12 — PETITION ORDINARY APPEAL PROM SCOTT CIRCUIT COURT. cited Civil Code, secs. 107, 108, 110, 106. 8 Met. 462, Fernold v. Speer. 2 Duvall, 540, Ruby v. Grace. 5 Bush, 506, Dyas v. Lindsey. 1 Bush, 357, Ward v. George. 7 Bush, 432, Meguiar v. Rudy. 14 B. Mon. 520, Pottinger v. Mayfield. CITED Civil Code, sections 106, 108.
73 Ky. 54Bank of America v. McNeil (1873)
1. Lien op corporation on its stock to secure indebtedness.— Where the charter of a bank provides that it shall have a lien on its stock to secure any indebtedness by the stockholder to the bank, there can be no such lien, effectual for any purpose, until the stockholder becomes indebted to the bank. After he has divested himself of the title by the sale, gift, or pledge of his stock, and the bank has notice thereof, it has no right to extend credit to him upon the faith of this charter lien. 2. Transfer of stock by writing and power op attorney, etc.— Where by the charter stock is assignable by transfer on the books of the corporation, the assignment of the certificate with a written power to the assignee to transfer the stock to himself on the boobs of the corporation is a symbolical delivery, affecting those who have notice thereof as if the transfer had been made on the books. 3. Notice op equities. — It is a general rule that notice of an outstanding equity applies to every one whose title comes to him affected with such notice. 4. Where notice to the agent is notice to the principal.— Where the cashier of a bank with knowledge that a stockholder had pledged his stock to secure a debt was ex officio a member of the committee charged with buying and selling notes and bills, and a note of the same stockholder was discounted by the bank, it was held that the cashier was presumed, in the absence of evidence to the contrary, to have been present when the note was discounted, and his knowledge that the stock had been pledged was a sufficient notice to the bank. 5. Presumption op notice — Knowledge op cashier. — Where in such case the debt for which the stock was pledged was renewed before the stockholder’s note was discounted by the bank, the cashier’s knowledge of the original debt and pledge should have put him on inquiry, and he is presumed to have known that the renewal did not as a matter of law release the pledge. 6. The renewal op a note by the same parties is merely a change of the evidence of the indebtedness, and does not extinguish it, or release or in any way affect a pledge made to secure it. 7. Where a bank releases por a specipied time its right to its charter lien on stock for debts due it from the stockholder, and within that time the stock is pledged for a debt, the right of the bank after the expiration of the time to acquire its charter lien is subordinate to the right of the pledgee until the debt is paid or the pledge is released. 8. Where a bank repused to allow the transper on its books op stock in accordance with a written power, thereby impairing its value to the owner, he had a right to treat the action of the bank as a conversion of the stock, and to recover its value.
73 Ky. 61Allen v. Troutman's heirs (1873)
Case 14 — PETITION EQUITY APPEAL EROM NELSON CIRCUIT COURT. CITED 1 Duvall, 251, Beverly v. Perkins. CITED Civil Code, section 579. 2 Duvall, 540, Ruby v. Grace. 6 Bush, 394, Long v. Montgomery. 14 B. Mon. 172, Bush v. Madeira’s heirs.
73 Ky. 64City of Bowling Green v. Carson (1873)
1. Legislature may empower municipal corporations to establish market REGULATIONS. — The power of the legislature to delegate to municipal corporations the right to establish markets and regulate the sale and purchase of marketable articles, and to forbid the sale or purchase of such at other than the market places during market-hours, is unquestionable. The right to make such regulations grows out of the general police power of the government, and unless they are unreasonable or oppressive it is the duty of the courts to enforce them. See the opinion for regulations held not unreasonable or oppressive, or in conflict with public policy. 2. Rights under a license. — Where one did business as a greengrocer under a license from the city of Bowling Green, it was subject to the right of the city to adopt reasonable and proper regulations for the good of the general public. 3. Costs in Court of Appeals taxed against the appellant, although the judgment of the police court deciding an ordinance of Bowling Green invalid is reversed.
73 Ky. 67Runyon v. Darnall (1873)
Land must be identified in the judgment directing it to be sold. In a suit to enforce a lien on land the petition gave no other description of the. land than that it lay in F County, and was then in the possession of defendant R, “being the undivided interest of the defendants P and wife in the farm which descended from E R.” No title-papers were referred to to identify the land. In the ; judgment the land was described as that “sold by P and wife to R, the same being an undivided interest held by said defendant E P as one of the heirs at law of E R, and the same situate in F County and now held by defendant R.” Held, that there was no sufficient description of the land either in the petition or the judgment to direct the commissioner in making the sale.
73 Ky. 69City of Covington v. Covington & Cincinnati Bridge Co. (1873)
Case 17 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. CITED Act of February, 1846, incorporating Oov. & Cin. Bridge Co. Act of February 25, 1856, authorizing sale of stock, etc. Act of Ohio Legislature of April 2, 1858. Act of Ohio Legislature of March 16, 1865. Angelí & Ames on Corporations, secs. 164, 536, 537, 538, 345. Story on Constitution, section 1405. Acts of Congress, 13 Statutes at Large. Constitution of Ohio, article 13, section 1. Constitution of United States, article 1, clause 1. Constitution of Kentucky, article 13, secs. 2, 3, 12, 14, 20. Sedgwick on Statutory and Common Law, secs. 177, 123, 128. Cooley’s Constitutional Limitations, 204, 205. Dillon on Municipal Corporations, secs. 60, 567, 618. Dwarris on Statutes, 532. 2 Dutch. 444. 2 Kent’s Commentaries, 268, 356. 1 Kent, 455. 2 Hill, 434, State v. Buffalo. 4 Cushing, 433, Day v. Green. 4 Cow. 358, People v. Tibbitts. 4 Cow. 382, People v. Kipp. 1 Sumner, 46, Farnum v. Blackstone Canal Co. 1 Black, 289, Ohio & Mississippi R. K. Co. v. Wheeler. 8 Wheat. 1, 85, Green v. Biddle. 1 N. H. 44, Union Locks v. Towne. 1 Tomlin’s Law Dictionary, 542. 5 Comyn’s Digest, title “ Officer,” D. 2. 5 Bacon’s Abridgment, title “ Officer,” L. E. 9 Gill & Johns. 365, Regents of University of Maryland. 9 Co. 48, Earl of Shrewsbury’s case. 3 New York, 396, Powell v. Tuttle. 6 N. Y. 92, Thompson v Schermerheim. 2 California, 524, Smith v. Moore. 1Vroom (N. J.) 395, State v. New Brunswick. 1 Dutch. 309, State v. Jersey City. 2 Swan (Tenn.) 364, White v. Major. 2 Swan, 264, White v. Nashville. 1 Paige, 598, Phillips v. Wickersham. 3 Wheat. 282, Commonwealth v. Gill. 3Met. (Mass.) 539, Trustees v. Flint. 2 Barb. 316, Williams v. Potter. 1 Pick. 304, Proprietors of Canal Bridge Co. v. Gordon. 8 Yt. 19, Burdick v. Champlain Glass Co. 13 N. J. Equity Reports (2 Beasley, 46), Trenton Bridge Co. v. Trenton City Bridge Co. 26 Maine, 326, Middle Bridge Co. v. Marks. 20 Ohio St. 19, State v. City. 19 Ohio St. 369, Ireland v. Palestine, &c. Turnpike Co. 21 Wend. 178, Downing v. Kuger. 13 California, 540, City of Oakland v. Carpenter. 50 Illinois, 28, East St. Louis v. Wehring. 12 Wheat. 54, Clark v. Washington. 43 Mo. 359, Ruggles v. Collier. 46 Mo. Sheehan v. Gleeson. 40 Mo. 395, St. Louis v. Clemens. 36 California, 238, Meuser v. Risdon. 15 Maine, 306, Ruby v. Abyssinian Society. 10 Mass. 397, Hayden v. Middlesex Turnpike Go. 18 B. Mon. 411, Sandford v. McArthur. 21 How. 441, Pearce v. Railroad Company. 10 Wallace, 676, Marsh v. Fulton County. 12 Wallace, 349, Thomas v. Richmond. 21 How. 356, United States v. City Bank of Columbus. CITED Angelí & Ames on Corporations, section ,284. 2 Met. 321, Fry’s ex’r v. Lexington & Big Sandy R. R. Co. 1 Houston (Del.) 149, Delaware Railroad Co. v. Thorp. 1 Parsons on Contracts, 118, and cases cited; ibid. 120. 1 Met. 54, Shelbyville v. Shelbyville & Eminence T. P. R. Co. 1 Black U. S. 2, Ohio & Mississippi Railroad Co. v. Wheeler. 2 Duvall, 19, Smith & Davis v. Gower. 5 Littell, 45. 9 B. Mon. 71. 12 How. 519. 12 B. Mon. 148, Cov. &'Lex. R. R. Co. v. Kenton County Court. 54 Penn. St. Reports, 270, Curry v. Scott. 28 Penn. 339, Eberhart v. Westchester & Philadelphia R. R. Co. 35 Vt. 536, Rutland Railroad Co. v. Thrall. 49 Maine, 491, Bates v. Androscroggin. 17 B. Mon. 489, Taylor v. Williams. 12 Wheat. 64, Bank of United States v. Dandridge. 21 How. 539, Knox County Commissioners v. Aspinwall. 12 Wallace, 65, Railroad Company v. Harris. 13 Wallace, 284, Railroad Company v. Whitton. 16 La. Ann. 13, Knabe v. Ternot. 23 How. 400.
73 Ky. 83Ebersole v. Adams (1873)
Case 18 — PETITION EQUITY APPEAL EROME FLEMING CIRCUIT COURT. CITED 4 Peters, 203. 3 B. Mon. 403. CITED Bankruptcy Act of Congress of 1867. Act of March 10, 1856. Story’s Abr. Com. on Con., secs. 537, 538, 544. 2 Kent’s Commentaries, p. 390. 4 Wheat. 122, Sturges v. Crowninshield. 6 Wheat. 448, Gibbons v. Ogden. 5 Wheat. 34, 54, Houston v. Moore. 3 Story’s C. C. 453, Everett v. Stone. 2 Iredell, 463. 3 B. Mon. '401. 9 Met. (Mass.) 16, Griswold v, Pratt.
73 Ky. 87Sousely v. Burns's adm'r (1873)
1. In the sale of cumbrous personal property, where no place of delivery is designated, the law fixes the residence of the vendor as the place of performance. (Wilmouth v. Patton, 2 Bibb, 280; Chandler v. Robertson, 9 Dana, 291.) This has been the rule so long that courts must regard such contracts as made with that understanding by the parties. 2. Time of delivery. — Where property sold is agreed to be delivered between certain designated dates, it is optionary with the purchaser to designate on which of the days he will receive it, and his failure to do so fixes the last day as that on which he may be required to perform the contract. 3. Must aver readiness to perform his part of the agreement. In an action for damages for a breach of a contract, where the agreements are mutual and dependent, and each is to perform his part at the same time, the petition must aver that the plaintiff was ready to perform his part of the agreement at the time and place required, or it will be fatally defective. Neither the answer nor verdict will cure the defect where the sole issue was whether there was any contract between the parties.
73 Ky. 92Gaines v. Casey (1873)
Case 20 — PETITION EQUITY APPEAL PROM BOONE CIRCUIT COURT. CITED 3 J. J. Marsh. 163, Ducker & Jones v. Gray. 10 B. Mon. 277, Muir v. Cross, &c. CITED Revised Statutes, chap. 38, art. 2, sec. 1. Story’s Equity, sec. 1216 and 1216 a. Act of February 10,1866, Myers’s Supp., p. 714, sec. 1. 3 J. J. Marsh. 163, Ducker, &c. v. Gray. 1 Mason R. 212, Gilliman v. Brown. 3 Bush, 179, Lusk v. Hopper, trustee, &c. 4 Kent, 9th ed., pp. 170-71, sec. 58. 4 Bush, 538, Yandiver v. Hodge, adm’r. 6 Bush, 438, Yeates v. Weeden, adm’r. 3 Bush, 127, Payne v. Pollard, &c. 8 Bush, 637, Sale, &e. v. Crutchfield, &e; 6 B. Mon. 106, Brothers v. Porter, &c. 6 Bush, 519, Foster v. Shreve. 1 Story’s Eq., sec. 368. 3 Bush, 486, Stone and wife v. Werts, &c. 5 Bush, 521, Webster v. Bronston, trustee, &c. 6 Bush, 51, Knight v. Whitman. 2 Met. 476, Wheeler’s ex’rs v. Wheeler. 2 Kent, 625, 9th ed. 2 Blackstone, 297. 2 Duvall, 171, Northern Bank of Kentucky v. Keiser.
73 Ky. 96Cecil v. Sowards (1873)
1. Process on amended petition. — Where a new and distinct cause of action is set out in an amended petition summons must he issued and served on the defendant. 2. How suit instituted under the act op 1856. — A suit under the act of March 10, 1856, to set aside a fraudulent conveyance is not instituted within the meaning of that act by simply filing the petition within the prescribed six months, but summons thereon must also be sued out within that time.
73 Ky. 99Clark v. Anderson (1873)
1. Trustees may settle in chancery. — The trustee of an express trust may make his stated settlements before the chancellor in a proceeding in equity, and when his trust relation shall cease that court has the same power in the same proceeding to settle finally his accounts, and render judgment precluding the cestui que trust from asserting claim against him in any other court. In such final settlement all the accounts of the trustee and allowances made to him may be considered, and the orders confirming his former settlements may be treated as interlocutory. 2. How PAR PORMER SETTLMENTS MAY BE REVISED. — But in the revision of the former settlements it would not be proper to disallow expenditures or investments made by the. trustee with the approval of the chancellor, or to reject evidences of such expenditures accepted by him at the time as sufficient, unless the expenditures were so extravagant or the investments so ill advised as to raise the presumption of fraud, or unless the evidences are directly assailed and shown to be false. 3. Will construed — Trustee op estate and guardian op inpant. Property was devised by a testator to A in trust for the sole and separate use of the daughter of the testator, and, in the event of her marriage, free from the control of her husband,'and appointed A guardian and trustee for her, commending her to his fatherly care and protection. Meld, that it ivas the intention of the testator that A should as to the estate devised be the trustee, with power to manage and control it, and as to the person of the daughter he was to be guardian, the two offices being separate and distinct. 4. Trustee must manage estate with diligence. — A trustee charged with the management of the estate of an infant beneficiary, and allowed compensation for his services, must use reasonable diligence in loaning or otherwise investing the trust-funds so as to realize profit; and where he makes use of the funds in trade or speculation for his own benefit he should be charged either with the profits actually obtained or with compound interest. (Jones v. Foxall, 13 English Law and Equity, 142.) 5. Greater degree of diligence required of paid trustee.— Where a trustee is treated as a paid agent, and has undertaken the trust as such, his accountability both as to the preservation and the management of the estate should be much greater than where his services have been gratuitously rendered. 6. How often interest compounded. — In compounding interest on trust-funds used by the trustee for his own benefit he should be held to have received interest, and reloaned it as often as a prudent business man under like circumstances would have done with his own estate, and rests should be regulated by the circumstances of each case. Intervals of two years were proper in this case. 7. On funds coming to the hands of a trustee between his stated settlements he should pay interest after he has had a reasonable time for investment. Three months held to be a reasonable time. 8. Appreciation of currency in the hands of the trustee or while loaned out by him inures to the benefit of the cestui que trust and not the trustee. Where the trustee uses the trust-funds for his own purposes he thereby makes himself the debtor of the beneficiary, and must pay the debt with lawful money. 9. One commission. — Where funds are held by one in different fiduciary capacities he will not be entitled to more than one commission for performing a single duty which involves no additional labor or responsibility. 10. If a trustee is required to account for all the trust-estate, including bonds and stocks, as money, he should be allowed commission on the bonds and stocks as well as on the moneys coming into his hands. 11. Profits of a trust-estate not subject to the trust. — “I hereby devise all the rest of my property, both real and personal, to A, in trust for the sole and separate use of my daughter M, and, in the event of her marriage, free from any control, interference, or liability of her husband, but giving her the separate control and use of the same as though she was unmarried.” Held, that the principal only of the estate was devised to be held in trust for the separate- use of the daughter, and her infancy alone prevents her from receiving the profits arising out of it, and her marriage in INFANCY DID NOT REMOVE THIS DISABILITY. The accumulation of profits during her infancy has not become part of the principal of the trust-estate, but on arriving at age she will be entitled to receive and dispose of it as she may deem proper, free from the control of her husband. (Hill on Trustees, 405.) 12. Removal of trustees. — Where a testator has selected a trustee to execute a trust, and in its execution he proves himself honest, faithful, prudent, and skillful, the estate should not be taken from his hands, even though unpleasant relations exist between him and the persons interested, and another competent person is willing to take it without compensation.
73 Ky. 114Thomasson v. Townsend (1873)
1. Agreement to pay attorney’s eee in a mortgage* or note in case suit is brought upon the same is against public policy, and ■will not be enforced by the courts if resisted by the defendant. Such contracts are also in their nature usurious; they can not be enforced without allowing the creditor to recover a greater sum than bis debt with legal interest and costs. 2. Penalties will not be eneoroed when compensation can be made. Where they are to secure the payment of money they will be relieved against upon the payment of the principal and interest of the debt. (Story’s Equity Jurisprudence, 1314.) 3. When a judgment is rendered by deeault for an attorney’s fee stipulated for 'in the writing sued on, upon a petition setting out the contract in accordance with the rules of pleading, the defendant will be without remedy. 4. Equitable defense must be made in ordinary action, otherwise it will be waived. (Civil Code, sec. 14.)
73 Ky. 117Prather v. Weissiger (1873)
Case 26 — PETITION EQUITY APPEAL PROM THE LOUISVILLE CHANCERY COURT. CITED Amb. 756, Meadows v. Duchess of Kingston. Wilson’s Ch’y Bep. 125, Brampton v. Barker. Hopkins, 569, Van Rensselaer v. Stafford. Cowp. 278, Chapman v. Emery. Sel. C. C. 51, Blacket v. Langlinds. Walker’s Chancery, 117, Thomas v. Gibson. 7 Bush, 398, Miller v. Edwards. 3 Blackford, 7, McMahan v. Kimball. 1Paige’s Ch’y, 136, Coveil v. The Tradesman’s Bank. 1 Johns. Ch’y, 57, Bay v. Coddington. 4 Allen, 282, Sewall v. Boston-Water-power Company. 2 Black, 377, Calais Steamboat Company v. Van Pelt. 4 B. Mon. 464, Hewitt v. Sturdevant. 1 Vern. 179, Lady Bodmin v. Vandebendy. 3 P. Wms. 243, Jones v. Thomas. 2 Eq. Ca. Ab. 685, Attorney-General v. Gower. • 1 Ch. Ca. 34, More v. Mayhow. 2 Atk. 630, Story v. Lord Windsor. 1 Atk. 522, Kelsal v. Bennett. 2 Vern. 159, Brampton v. Barker. 3 P. Wms. 244, Aston v. Curyon and Weston v. Berkely. 2 P. Wms. 491, Bruce v. Duchess of Marlborough. 2 Y. & C. Exch. Ca. 328, Hughes v. Garner. 3 P. Wms. 94, Harris v. Ingledon. Amb. 421. 3 P. Wms. 281. 1 Atkyns, 571. 2Atkyns, 241. 3 Atkyns, 304, 814. 2 Atkyns, 631. 2Eq. C. 685. 2 Eq. O. Abr. 682. 3 Ark. 815. 2Vesey, jr. 187. 4 Bro. O. C. 322. 2 Vesey, 430. 1 Vern. 185. 2 C. C. 161. 3 P. Wms. 91, 95. 5Vesey, jr. 426. 3 Bro. C. C. 264.. Amb. 292. 2 Freeman, 84, Bogers v. Searl. 4 Bussell, 514. 3 Vesey, jr. 226, Trevanian v. Morse. Ibid. 82. 8 Crancb, 462, Alexander v. Pendleton. 3 P. Wms. 279, 281, Story v. Lord Windsor. 1 Vern. 246, Head v. Egerton. 5 Littell, 62, Hunter v. Simrall. 6 Monroe, 192, Blight’s heirs v. Banks. 4 J. J. Marsh. 554, Halstead v. Bank of Kentucky. 7 Alabama, 142, Moore v. Olay. 3Strobhart’s Equity, 131, Bush v. Bush. 7 Munford, 599, Nantz v. McPherson. 3 Yerger, 308, Pillow’s heirs v. Shannon’s heirs. 4 Sandford’s Ch’y, 97, Tompkins y. Anthon. 1 Speer, 20, Dillard v. Crocker. 7 Peters, 252, 271, Vattier v. Hinde. 4Simon & Stewart, Jackson v. Bo we. 3 Mylne & Keene, 581, Jones v. Powles. 1 Yerger, 296, Parsons v. Jury. 1 Blackford, 91, Gallion v. McCaslin. 2 Littell, 220, Simms v. Bichardson. 1 Bro. C. C. 578, Hoare v. Parker. 1 Cox S. O. 224. 2 Oh. Ca. 161. 2 S. & S. 282, Pennington v. Buchey. 4 Buss. 14, Jackson v. Bowe. 1 Vern. 185, Price v. Price. 5 Sim. 650, Hardman v. Eiames. 2 My. & K. 732. 9 Cowen, 316. 7 Barbour’s Ch’y, 251, Cram v. Mitchell. 1 Paige, 131, Co veil v. The Tradesman’s Bank. 1 Sandford Ch’y, 569, Poillon v. Martin. . 9 Barr. 399, Mott v. Clark. 1 Bawle, 245, Lancaster v. Dolan. 2 J. C. B. 479, Livingston v. Dean., 2 J. C. B, 443, Murray v. Lylburn. 2 Vern. 691-765. 1 P. Wms. 497. 2 Johnson Chancery Beports, Murray v. Finster. 4 Dessaussure, 274, Snelgrove v. Snelgrove. 8 Pre. Cha. 480, Marshall v. Frank. 1 Ves. 122. 4 Ves. 118. 2 Wheat. 421. Sugden, 507. 1 Ans. 14.’ Gilbert, 58. 3 Atk. 302. 2 Atkyns, 392. 8 Cowen, 361. 9 Vesey, jr. 24, Walwyn v. Lee. 1 Dev. Ch’y, 103, Donaldson v. The Bank of Cape Fear. 4 Scan'mon, 13, Willis v. Henderson. 3 Wharton, 485, Twelves v. Williams. 9 Peters, 86, Caldwell v. Carrington. 1 Humphreys, 491, Smitheal v. Gray. 1 Equity Cases, Abr. 33, pi. 3, Watkins v. Hatchet. 6 Simon, 6, Kennedy v. Green. 1 Johnson’s Ch’y, 288, Frost v'. Bickman. 4 Johnson’s Ch’y, 65, Brinkerhoff v. Lansing. 7 Paige,- 421, Harris v. Fly. 1 Hopkins, 48, Gallatin v. Erwin. 2 Edwards, 259, Woodruff v. Cook. 7 Johnson’s Ch’y, 65, Jewett v. Palmer. 14 Allen, 523, Sturtevant v. Jacques. 13 Allen, 50, Bancroft v. Consen. 13 Allen, 407, Trull v. Trull. 24 Beav. 62, Jones v. Williams. 13 Met. 355, Butterick v. Holden. 15 Wallace, 171, Duncan v. Jaudon. 10 Peters, 177, Boone v. Chiles. 10 Yerger, 535, High v. Botte. 10 Paige, 399, Curtiss v. Hitchcqck. 100 Mass. 388, Shaw v. Spencer. CITED Statute of Aune, Story on Promissory Notes, sec. 6. Hardin’s Reports, 220, Drake v. Johnson. Hardin’s Reports, 8, Conn v. Jones. Hardin’s Reports, 563, Neyfong v. Wells. Chitty on Bills, pp. 174, 134, 277, 226, 226 a. La Ray, 753, Bank of England v. Glover. Bayley on Bills, 123, 124, 115. Story on Promissory Notes, pp. 150, 148, 207, 130. Revised Statutes, 1 Stanton, 268. Sehvyn’s Nisi Prius, Wheaton’s notes, pp. 348, 349. Hill on Trustees, pp. 261, 262. Perry on Trusts, p. 763, sec. 831. Story on Bills of Exchange, p. 81. Bouvier’s Law Dictionary, “ Indorsement.” _ 4 Bibb, 308, Lemmon v. Brown. 5 Mon. 173, Snelling v. Boyd. 2 A. K. Marsh. 201, Bowman, &c. v. Halstead, &c. 3 A. K. Marsh. 292, The Frankfort Bank v. Hunter. 2 Littell, 167, Force’s adm’r v. Thomason. 1 Bibb, 542, Smallwood v. Woods. 1 Pennington, 20, Garretsie v. Vauness. 4 Mon. 15, Markley v. Withers. 5 J. J. Marsh. 42, Boyd v. Bamsey. 1 Camp. 442, Vincent, &c. v. Horloek. 5 Littell, 333, 0wings & Weir v. Grimes. 4 B. Mon. 510, Beese v. Walton. 5 B. Mon. 107, Odenheimer and Tenant v. Douglass, &c. 5 B. Mon. 400, Hunt v. Armstrong’s adm’r, &c. 9 Dana, 416, Cope v. Daniel. 1 Parsons on Notes and Bills, pp.'4, 254, 15. 3 Allen, 217, Ashton v. Atlantic Bank. 1 Paige, 134, Coveil v. Tradesman’s Bank. 3 Henning’s Statutes at Large, 378. 16 B. Mon. 575, Garuth, &e. v. Thompson, &c. 18 B. Mon. 836, McBrayer v. Collins.
73 Ky. 132Anderson v. Thompson (1873)
1. Sureties in general official bond of sheriff not liable for his DEFAULT in collecting taxes. — The sureties on the bond executed at the time the sheriff is inducted into office are not liable for his default as collector of the state revenue or county levy or public dues of the county, as he has no right to collect these until he has executed other bonds. 2. Railroad taxes are public dues. — Taxes levied by a county court to pay a subscription of the county in aid of a railroad are public dues of the county, within the meaning of section 3, article 2, chapter 26 of the Revised Statutes. 3. Official bond. — Every bond executed by a sheriff in obedience to law by which his sureties undertake that he shall discharge a public duty imposed upon him by law, as sheriff, is an official bond. (Commonwealth v. Adams, 3 Bush, 41.)
73 Ky. 137Nesbitt v. Liggitt (1873)
Case 28 — PETITION ORDINARY APPEAL FROM WEBSTER CIRCUIT COURT. CITED Revised Statutes, chap. 83, sec. 12, art. 9. 3 Marsh. 504, Curry v. Fowler. 5 B. Mon. 464, Oldhams v. Jones. CITED Revised Statutes, 2 Stanton, chap. 83, sec. 2, art. 9. Revised Statutes, chap. 58, sec. 2, art. 3, pp. 104, 105. 4 Dana, 337. 3 B. Mon. 175. 7 J. J. Marsh. 320. 12 B. Mon. 478.
73 Ky. 140Featherston v. Thompson (1873)
Case 29—MANDAMUS— APPEAL FROM FRANKLIN CIRCUIT COURT. CITED Revised Statutes, chap. 75. 8 B. Mon. 651. Myers’s Supplement, 788. • 18 B. Mon. 17, 426.
73 Ky. 144Hoke v. Field (1873)
Case 30 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED Revised Statutes, 1 Stanton, 329; 2 ibid. 262. Paul to Timothy, 1st letter, chap. 5, verse 8. 4 Bush, 307, Fletcher v. Leight, &c. 1 Met. 67, Raymond, &c. v. Smith, &c. 1 Duvall, 200, Commonwealth v. Roberts. 1 Met. 143, Stokes v. Kirkpatrick. 4 Met. 236, Applegate v. Applegate. 4 Met. 275, Green v. Goodrum, &c. cited 3 J. J. Marsh. 401, Taylor v. Commonwealth. 1 Acts of 1873, p. 282.' 1 Cranch, 137, Marbury v. Madison. 1 Mon. 82, Justices of Jefferson County v. Clark. 2 N. H. 203, Johnston v. Wilson. 1 McCord, 233-39, State v. Jeter. 1 Revised Statutes, p. 329. 4 Met. 236, Applegate v. Applegate. 19 Howard, 78, 79, United States v. Le Baron. 10 Peters, 364, 365, United States v. Bradley. 43 Ala. 573, State of Alabama v. Ely, Judge, &c. 44 Mo. 231, State of Missouri v. County Court of Texas Co. 53 N. Y. 358, The People v. Woodruff.
73 Ky. 148Bank of Columbia v. Overstreet (1873)
1. Attachments dissolved by the bankrupt act. — Section 14 of the bankrupt act of 1867, providing that the title to the estate of the bankrupt shall vest in the assignee and for the dissolution of attachments made within four months, has reference to attachments sued out in the state as well as Federal courts. 2. Federal laws binding on state courts. — All laws of Congress enacted pursuant to the powers delegated to it by the Federal Constitution are binding as well upon the state as the Federal courts, and the state courts, if not bound to administer Federal laws, must respect all rights acquired under them. 3. Constitutionality oe the act. — The dissolution of attachments in state courts by operation of the bankrupt act in no sense impairs the obligation of a contract, the attachment lien being secured by legal diligence and not by contract. Nor where the right to attach was acquired after the bankrupt law went into effect was any vested right divested. 4. A claimant oe attached property may assert his claim by petition in the action, as provided in section 257 of the Civil Code; and, having acquired the legal title, may recover the property on showing either that the attachment was invalid from the beginning or that it has been dissolved after levy by operation of law.
73 Ky. 152Campbell's ex'r v. Farmers' Bank (1873)
Case 32 — PETITION ORDINARY APPEAL FROM MERCER CIRCUIT COURT. CITED Revised Statutes, 2 Stanton, 353, 355, 263, 245. Act of February 16, 1850, Session Acts, p. 8, sec. 2. Act of May 27, 1865, Myers’s Supplement, p. 60. Bigelow on Estoppel, p. 473. Civil Code, sec. 123. 1 Met. 291, Chambers v. Keene. 8 B. Mon. 133. 1 Met. 503, Walters v. Chinn. 4 Met. 300. 7 B. Mon. 116. 4 B. Mon. 272. 3 B. Mon. 122. 5 B. Mon. 49, 240, 399. 13 B. Mon. 368. 14 B. Mon. 247. 18 B. Mon. 259, Hughey v. Sidwell’s heirs. cited General Statutes, p; 137. Myers’s Supp., p. 60. 2 B. Mon. 312, Johnson v. Bank of United States. 1 Dana, 334, Clark v. Schwing. 1 Marsh. 540, Stapp v. Anderson’s ex’r. 2 Marsh. 348, Sanders v. Bank of Kentucky. 3 Marsh. 163, Jones v. Wood. 2 Littell, 44, Bank of Kentucky v. Brooking & Clarke. 2 Littell, 389, Battertons v. Porter. 17 B. Mon. 247, Lindsey v. Rutherford.
73 Ky. 156Moxley v. Ragan (1873)
1. A DEBTOR MAY SELL HIS PERSONAL PROPERTY EXEMPT FROM EXECUTION, either in payment for a debt or for any other valuable consideration, so as to vest in the purchaser the absolute title, or even to mortgage it to 'secure the payment of a debt. 2. Waiver of benefits under exemption laws against public policy. — An executory contract by which a debtor agrees to waive all benefits under the exemption laws is against public policy, like agreements to waive the benefit of the bankrupt act or statute of limitations, and can not be enforced. The recitals in such agreements can not constitute an estoppel. (10 Howard, N. Y., 283; 31 Barb. 170.)
73 Ky. 160McElfatrick v. Taft (1873)
Case 34 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED Revised Statutes, chap. 35, sec. 18. Act of Congress of May 26, 1790. Peters’s C. C. Rep. 352, Craig v. Brown. 3 Bibb, 369, Stephenson v. Bannister. 1 Greenleaf on Evidence, secs. 506, 79. 1 Robinson’s Practice, 274. 4 Bibb, 521, Johnson v. Fowler. 1 Johnson’s Chancery, 238 Smith v. Blagge. 8 Wash. C. C. R. 126, Turner v. Washington. 5 Ohio, 545, Silver Lake Bank v. Harding. 4 Bibb, 409. 2 Yea tes. 1 Stabhart, 34. 2 Iredell, 34. 24 N. Y. App. 394, Morris v. Patchen. CITED 1 Chip. 59, Ingersoll v. Van Gilder. 1 Rice (S. C.) 16, Clark v. Parsons. 3 Harr. (Del.) 408, Graham v. Gregg. 2 Pick. 448, Warren v. Flogg.
73 Ky. 167McLean v. McLean (1873)
1. Landlords attaching por rent are not held to the same strictness op proop op the grounds as in case of parties suing out attachments to secure the payment of ordinary debts. It is the policy of the law to prefer landlords, and they are given an exclusive lien on the property of the tenant on the premises for their rent. (Act of February 16, 1858.) • s 2. What is suppicient ground por attachment by a landlord.— The sale or removal from the leased premises without the landlord’s consent of any property bound by the lien is a violation of his legal rights; and whenever so much of it is being sold or removed, or is about to be removed, as to give him reasonable ground to believe that the collection of his rent will be endangered, his right to attach accrues. He is not bound to wait till there is barely enough property left upon the premises to sell for the amount of his rent. He must have reasonable ground for apprehension, but can not be compelled to wáit till his belief ripens into absolute conviction.
73 Ky. 169Escott v. White (1873)
1. A CONDITION PRECEDENT MUST BE PULLY PERPORMED before a suit on the contract can be maintained by the party who had undertaken the performance of such condition. 2. Taking possession op a house is not an acceptance op the work as done. — Where a contractor built a house on the premises of another under an agreement, the simple taking possession of the building by the owner can not be considered an acceptance of the work as done in compliance with the contract. 3. Quantum meruit. — Where work has been done under an agreement, but defectively executed, the person performing it may recover on a quantum meruit. (Morford v. Ambrose, &c., 3 J. J. Marsh. 688; Morford v. Mastin, 6 Mon. 609.) 4. Damages sustained by the employer by reason op the breach of contract may be deducted from the amount claimed on a quantum meruit. 5. Generally no recovery can be had on a quantum meruit ip A CONDITION PRECEDENT HAS NOT BEEN COMPLIED WITH; but where the defendant himself completes the contract, putting it out of the power of the plaintiff to do so, a recovery may be had on a quantum meruit, as if the work had been completed by the plaintiff, but not in a workmanlike manner. 6. Extra work regarded as an independent contract — Though a contract stipulated that no work should be considered extra unless ordered in writing and indorsed by the architect, if extra work be done at the instance of the owner from which a benefit is derived, it must be regarded as an independent contract, for which a recovery may be had. 7. Deeective pleading cured by the verdict. — Thé contractor claiming for extra work should allege an independent agreement in order to avoid the stipulations of the covenant against any claim for extra work; but after verdict the omission is aided by the common-law intendment, especially where the facts established sustain the cause of action.
73 Ky. 176Payne v. Bank of Bowling Green (1873)
What class op promissory notes discounted in bank are placed on the rooting of bills. — The provision in the charter of the Bank of Bowling Green, that “all promissory notes and inland hills of exchange which may be discounted and owned by said bank shall be and are hereby put upon the footing of foreign bills of exchange,” should be taken in connection with the general law that the purchaser of a mere promissory note takes it subject to all the dafenses that could be made to it in the hands of'the payee or any intermediate assignor, and must be construed as not intended to apply to promissory notes that are not negotiable, but only to those made negotiable and payable in hank.
73 Ky. 179Caldwell v. Rupert (1873)
1. Taxation oe adjacent property for street improvements in Louisville can not, under the charter of 1870, he imposed on real estate that has not been laid out into squares. The assessments are required to be made against lots forming the “one fourth of a square,” and there is no authority given to tax any realty for this purpose that does not lie within a tax-district so formed. 2. Municipal powers of taxation must be strictly construed.— Municipal corporations can levy no taxes, general or special, upon the inhabitants or their property unless the power be plainly and unmistakably given. Such authority is wholly statutory and must be strictly pursued, and this rule applies to assessments for local improvements. (Dillon on Municipal Corporations, section 605; Kniper v. City of Louisville, 7 Bush, 599.) 3. A LIBERAL CONSTRUCTION WILL NOT BE GIVEN THE CITY CHARTER TO sustain A tax. — While the charter provides that ordinances shall not be void by reason of a failure of the council to follow strictly its delegated powers, a liberal construction will not be given the charter to enable the city government to exercise the power of taxation. 4. What is a “ square.” — Each subdivision of territory bounded on all sides by principal streets should be deemed a square within the meaning of section 12 of the charter, which provides that street improvements shall be made “ at the exclusive cost of the owners of lots in each fourth of a square.”' Unless property is situated in a territory so bounded it can not be deemed any part of a square, and can not be assessed for adjacent street improvements. 5. The city shall in no event be liable for the cost of street improvements without having the right to enforce it against the property receiving the benefit thereof. This provision in the charter applies only in cases where the city has authority to make the improvements at the exclusive cost of those owning the property benefited.
73 Ky. 185Elizabethtown & Paducah Railroad v. Pottinger (1873)
Case 39 — PETITION ORDINARY APPEAL EROM MUHLENBERG CIRCUIT COURT. CITED Story on Agency, secs. 134AL39. Civil Code, sec. 123. 8 Bush, 402, Maddox v. Fox. 6 Eng. L. and Eq. 320, Oort v. A. W. & R. W. Co. 8 Bing. 14, Planche v. Colborn. 8 Hare, 92, East. L. R. Co. v. Hattersby. 7 Hare, 136, Nixon v. Taff. Vale R. Co. 1 Greenleaf’s Evidence, sees. 113, 114. 13 B. Mon. 464, Fible v. Caplinger. 27 Eng. L. and Eq. 50, Ranger v. Great Western R. W. Co. 13 How. 339, P. W. & B. R. W. Co. v. Howard. 27 Vt. 680, Herrick v. Belknap. 14 B. Mon. 203, Collins v. Blackburn. 20 Eng. L. and Eq. 157, Hockester v. De La Tour. 48 English Ch’y, 74, McIntosh v. Gt. West. R. W. CITED Civil Code, secs. 414, 416,123, 474.
73 Ky. 190Kean v. Commonwealth (1873)
1. The testimony op a deceased witness given at a former trial of the same case and same issue between the same parties is competent evidence on a subsequent trial. 2. The written statement in a bill op exceptions op the testimony OP THE DECEASED WITNESS ON THE PORMER TRIAL IS NOT admissible in a criminal prosecution as evidence of the substance of that testimony, being in violation of the constitutional right of the accused to meet the witnesses face to face. (Kentucky Constitution, sec. 12, art. 13.) 3. The substance op the testimony op a deceased witness may BE PROVED BY PERSONS WHO WERE PRESENT AT THE PORMER trial and heard the statements of the witness, if they can remember and state the substance of all his testimony. 4. But evidence in a bill of exceptions may be read in a civil action when the witness is dead and a retrial has been ordered. 5. Proof that the family or associates op a witness are in bad repute is inadmissible, to impeach his character.
73 Ky. 196Weatherford v. Commonwealth (1873)
1. The appellate jurisdiction op the Court op Appeals in pelony cases is limited by section 334 of the Criminal Code of Practice. It can not reverse a judgment in such cases for a defect in the indictment that does not authorize an arrest of judgment. A judgment can be arrested, only when the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. (Criminal Code, sec. 271.) 2. Though several persons be jointly indicted por distinct oppenses charged to have been jointly committed, when not susceptible of a joint commission, if the indictment charged the one on trial' in person with the commission of the offense, the judgment should not be arrested. 3. When the indictment is joint, if it appear in proof that the party on trial was the only one concerned in the commission of the offense, there may be a verdict and.judgment against him the same as though he was indicted alone. (Bishop on Criminal Procedure, sec. 223.) 4. Instructions should be identified in the record.
73 Ky. 201Ayars v. Cox (1874)
Case 1 — PETITION OEDINAEY CITED Revised Statutes, 2 Stanton, p. 271; sec. 4, p. 347; sec. 23, p. 290. Myers’s Supplement, pages 415, 739. Criminal Code, sections 46, 60, 295, 298, 326. Cooley’s Constitutional Limitations, 300. Loughborough’s Digest, 131. Brown on Actions at Law, 191-200. Broom’s Legal Maxims, 40, 48. 2 Hilliard on Torts, section 2, page 184. 1 Mon. 10, Clay, &c. v. Caperton. 3 B. Mon. 80, Banta v. Reynolds. 8 B. Mon. 110, Arnold v. Commonwealth. 3 Met. 314, Revill, &c. v. Pettit. 5 Wendell, 171. 10 Coke, 76. 2 N. R. 211, Arrowsmith v. Le Mesmir. 6 B. & O. 528, Berry v. Adamson. 1 Chitty’s Pleading, 89, 209, 210. 2 Saunders’s Pleading and Evidence, 913. 2 Starkie’s Evidence, 586, 588, 1111, 1112. ■5 Johns. 282, Yates v. Lansing. 3 Cowen’s Rep. 209, Adkins V. Brewer. 6 Bingham, 85, Mills v. Callet. 3Grant (Penn.) 406, Hodgson v. Millward. 1 Shep. 132, Chase v. Fish. 1 Shep. 363. 5 Ad. & Ell. N. S. 381, Magnay v. Burt. 9 B. Mon. 390, Hunt v. Ballew. 2 J. J. Marsh. 46. 4 B. Mon. 231. 6 Dana, 323, Lovier v. Gilpin. 11 Wendell, 90, Easton v. Callender. 19 111. 242, Lancaster v. Lane. 21 Wendell, 555, Stewart v. Hawley. 37 Ala. 244, Williams v. Ivey. 15 La. Ann. 489, Brainard v. Head. CITED 3 Met. 315-19, Revill, &c. v. Pettit. Criminal Code, section 60. Revised Statutes, chap. 91, art. 2, sec. 4.
73 Ky. 208Garrard County Court v. Boyle County Court (1874)
Bridges over water-courses between adjoining counties.—The county court of one county can not compel the county court of an adjoining county to take steps or provide means to construct a bridge between the two counties. Both counties having a unity of interest in the building of a bridge, each should contribute to its erection, and each should have a voice as to the necessity and expediency of making the expenditure. When the two counties differ upon the question of expediency, and the county court of one refuses to act, the circuit court of that county is made the arbiter between them. (Revised Statutes, chap. 84, secs. 30-85.) The circmt judge being upon the ground, and knowing the wants, necessities, and financial condition of each county and its inhabitants, his judgment is entitled to great weight and is affirmed in this case.
73 Ky. 212Offutt v. Commonwealth (1874)
1. The term op oppice op trustee op the jury-fund can not exceed four years, and he can not act as such officer by virtue of his original appointment and qualification after the expiration of the term. 2. Sureties in bond op trustee op the jury-fund are not liable for funds coming into his hands after the expiration of his term. (Sec. 10, art. 6, Constitution of Kentucky; Stevens v. Wyatt, &c., 16 B. Mon. 542.)
73 Ky. 216Kellar v. Williams (1874)
1. Sureties por same debt by dipperent obligations are co-sureties. — It is a general rule of equity that all persons liable as sureties for the same debt, though by different obligations, executed at different times, are regarded as co-sureties, and will be compelled to contribute to the payment of any loss that a co-surety may sustain by having discharged the debt; but the rule does not apply to the case where some are sureties in a replevin and others in a supersedeas-bond, as the liabilities imposed by the respective bonds are of different natures. 2. Surety in a supersedeas bond is liable to the surety in the replevin-bond — Equitable right op substitution. — Execution on a replevin-bond was stayed by a supersedeas, and thereby discharged the lien on property of the debtor of sufficient value to satisfy the debt. The judgment was affirmed on the appeal; and the original debtor having in the mean time become insolvent, the surety in the replevin-bond was compelled to pay the debt. The surety was entitled to be substituted to the rights op the creditor and recover the amount so paid from the surety in the supersedeas-bond, the execution of which had prevented the collection of the debt under the execution. (Brandenburg v. Flynn, 12 B. Mon. 399; Patterson v. Pope, 5 Dana, 241.) 3. Bights of sureties not restricted but enlarged by the statute. — Section 8 of chapter 97 of the Revised Statutes, giving a surety paying a debt for which he is bound as such the right to an assignment of the judgment, was not intended to limit or restrict the rights of sureties, but rather to enlarge their legal and equitable remedies, and the equitable doctrine of substitution is in no way affected by it. 4. Replevying or satisfying a judgment is no waiver of the right to prosecute an appeal for its reversal.
73 Ky. 221Jamison v. Gaernett (1874)
1. A PEACE-OEEICER CAN MAKE AN ARREST WITHOUT A WARRANT only where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony. (Criminal Code, section 33.) 2. The provision in the city charter of Louisville that “ policemen may, with or without a warrant, arrest persons guilty of offenses against the laws or ordinances of the city” was not intended to give further power to peace-officers or vary from the general law, even if it could constitutionally he done.
73 Ky. 226City of Louisville v. Osborne (1874)
Case 6 —PETITION EQUITY APPEAL EEOM THE LOUISVILLE CHANCERY COURT. CITED Charter of 1870 of the City of Louisville, secs. 12, 14.
73 Ky. 231Johnson's adm'r v. Louisville City Railway Co. (1874)
1. All kinds of railroads liable for injuries to persons from negligence. — The act of March 10,1854, for the redress of injuries arising from the neglect or misconduct of railroad companies and others, is applicable to the proprietors of any hind of railroad, whether impelled by horse or steam power, or whether constructed with iron or other kind of rails. 2. Practice in Court of Appeals. — Where a verdict for the plaintiff in an action is set aside and the petition dismissed, on the ground that it does not set forth facts constituting a cause of action, the sufficiency of the petition may be considered on appeal, though no bill of evidence accompanies the record.
73 Ky. 234Trustees Kentucky Female Orphan School v. Fleming (1874)
Case 8 — PETITION EQUITY APPEAL TEOM LOUISVILLE CHANCERY COURT. CITED Greenleaf on Evidence, sections 576, 577. Revised Statutes, chap. 40, secs. 5, 9, 10; 2 Stanton, p. 133, sec. 7. Lindley on Partnerships, p. 600, s. p. 760. Revised Statutes, Act.adopting, 1 Stanton, 177. Act of 1792, 1 M. & B., p. 778. Act of 1819, 1 Stanton, pp. 778, 780. Civil Code, p. 181, sec. 471. Jarman on Wills, pp. 395, 89. Howard’s Appeal Cases, 266, Wambaugh v. Gates. 5Rob. Prac., p. 25; 1 ibid. 441, 495; 2 ibid. 307. 2 Denio, 416, Stewart v. Trustees of Hamilton College. 2 Williams on Executors, 1603, 1526. 5 Cowen, 376, Taylor v. Bates. 2 Session Acts 1851-52, p. 610. 1 T. R. 271, Jackson v. Pratt. 4 Kent’s Commentaries, 419, 420, 421. 4 Met. 290, Broadwell v. Broadwell. 1 Es. 276, Chelsea Water-works v. Cowper. 7 Greenleaf, 298, Coffin v. Coffin. 3 Bush, 223, Clark v. Kellar. 1 Story’s Equity, secs. 358-365. 2 Story’s Equity, sec. 152, p. 987. 2 J. J. Marsh. 121, Buckner v. Morris. 1 Tuck. Lect., 2d part, 367, 186. 6 Johns. Ch’y R. 377, Moores v. White. 10 Johns. 586, Henderson v. Lewis. 16 B. Mon. 555, Hill v. Golden. 15 Wend. 306, Stafford v. Richardson. 12 Mass. 395, Royce v. Burrill, &e. 24 Miss. 173, Turner v. Ellis. 7 Johns. 26. Adams’s Equity, 86. 8 B. Mon. 69. 10 Barb. 308. 7 Wendell, 320. 2 Arkansas, 402. 2 Bush, 265. 9 S. & R. 380. 9 Dana, 266. 2 Ves., jr. 13. 2 Blackstone, 465. 3 B. Mon. 321. 3 Mon. 224. 40 Miss. 650. 2 Bar. Ck’y R. 186. 21 Johns. 414. 32 Miss. 320. 1 How. Miss. R. 62, 2 Salk. 153. 1 P. Wins. 518. 5 Ves., jr, 734. Perry on Trusts, sec. 866.
73 Ky. 240Murray v. Tucker (1874)
1 Street improvements in Louisville — Defective work, etc.— The aity council is the sole judge of the manner of execution and character of work done in making street improvements, and when such work is accepted by the council the adjacent lot-owners can not resist the collection of the cost thereof on the ground of a defective execution of the work. 2. Power oe municipal taxation strictly construed. — The power of municipal corporations to make street improvements at the expense of the adjacent lot-owners is derived solely from legislative enactment, and will not be enlarged by implication or construction, but will be strictly construed. 8. Contracts can not be altered by the engineer. — The city of Louisville alone has the power under its charter to determine the necessity for street improvements therein, and the exercise of this power can not be 'delegated. In making such improvements the contract can not be varied by the engineer or other agent of the council. No such variation can afterward be ratified by the council so as to create an obligation on the part of the lot-owner, even though such alteration and the improvement be to his advantage.
73 Ky. 245Gardner v. Smith (1874)
Homestead can not be subjected to the payment of debts created after June 1, 1866, unless the debt or liability existed prior to the purchase of the land. Part of á tract of land having been sold to pay purchase-money, the owner is entitled to have a homestead set apart to him in the remainder. Webster v. Bronston, trustee, &c. (5 Bush, 521) concurred in.
73 Ky. 246Hughes & Co. v. Coleman (1874)
1. Certificate of acknowledgment of deed by married woman prima facie evidence only. — The statute making the certificate of acknowledgment of a deed by a married woman evidence that she was examined separately and apart from her husband,.and the contents explained, etc.,, was not intended to make such evidence conclusive, and extraneous evidence may be heard to show the real state of facts. (Ford v. Teal, 7 Bush, 156; Woodhead v. Foulds, 7 Bush, 222.) 2. Mere -preponderance of evidence against the certificate not sufficient. — Such extraneous evidence must be strong and assuring in order to overturn the certificate, and must be sufficient to satisfy the mind of the court with reasonable certainty that the law was not complied with. A bare preponderance of evidence will not do. If after making all proper allowance for the official knowledge and fidelity of the^ clerk, and giving proper effect to the legal presumption that he did his duty, it is still manifest to the court that the law has not been complied with, then, and not till then, will the certificate be disregarded.
73 Ky. 251Burnes v. Cade (1874)
1. Justices’ and quarterly courts have exclusive jurisdiction of all actions and proceedings for the recovery of money or personal property where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars in value. 2. A judgment for fifty dollars having been rendered by the Quarterly Court of Livingston County, thé common pleas court of that county did not have jurisdiction of an action to subject a debt due to the defendant to the satisfaction of the judgment. The subsequent action ought to have been brought in the court in which the judgment was recovered.
73 Ky. 254Commonwealth v. Springfield, Maxville & Harrodsburg Turnpike Co. (1874)
1. Disability will not ayail opposing party. — The want of authority on the part of a county court to subscribe stock in a corporation is no reason for such corporation refusing, after receiving the money on the subscription, to comply with its agreement to issue and deliver to the county court certificates for the stock subscribed and paid for. 2. Conditional subscription. — A county court subscribed for stock in a turnpike company, the money subscribed to be used in erecting a certain bridge. Held, that the company had the right to accept the conditional subscription, and the subsequent destruction of the bridge did not affect this subscription, but was' the loss of the company. 3. Limitation.- — If a corporation can rely upon lapse of time against a stockholder who merely demands the evidence of title to his stock (a question not decided), the statute will not begin to run until the stockholder is notified by some unequivocal act that his title to the stock is disputed. 4. Limitation runs against a stockholder as to dividends on his stock which have been appropriated by the corporation.
73 Ky. 259Hardin v. Gerard (1874)
Case 14 — PETITION EQUITY APPEAL PROM -WARREN CIRCUIT COURT. CITED Story’s Equity Pleadings, secs. 61, 63. Civil Code, secs. 36, 49. 6 Dana, 36. 15 B. Mon. 70. 7 J. J. Marsh. 318. 12 B. Mon. 235. 4 Dana, 336. CITED Tyler on Infancy and Coverture, pp. 393-97, 504, 768. Revised Statutes, 2 Stanton, p. 8, art. 2. Revised Statutes, 2 Stanton, p. 124. Revised Statutes, 1 Stanton, pp. 281, 282, sec. 20. Civil Code, sec. 49. 4 Metcalfe, 264. 15 B. Mon. 70-73. 14 B. Mon. 247.
73 Ky. 263Jacobs's adm'r v. Louisville & Nashville R. R. (1874)
Case 15 — PETITION ORDINARY APPEAL PROM HARDIN CIRCUIT COURT. CITED Sneed’s Rep. 262, Duncan v. Finnyhorn and wife. Shearman and Redfield on Negligence, secs. 16-46. Hardin’s Reports, 586, Taylor v. Giger. Civil Code, sections 369, 119, 370. Hilliard on Torts, pp. 442, 445. Newman on Pleading, pp. 261, 410. 1 Bibb, 248, Worford v. Isbell. 4Littell, 118, Bell v. Howard. 2 Met. 558, Letton v. Young. 1 Marsh. 591, Payne v. Brittenham. 4 Littell, 161, Jouitt, &c. v. Lewis’s adm’r. 3 Dana, 493, Board v. Head. 2 Met. 146, Chiles v. Drake. 5 Texas, 141, Graham v. Rodes. 3 Met. 313, Bowler v. Lane. 8 Bush, 9, Hyatt v. James’s adm’r. 7 Dana, 479, Singleton v. Cogar. 2Bibb, 591, North v. Cates. 4 Bibb, 92, Bacon v. Brown. 4Bibb, 272, Craig v. Elliott. 1 Marsh. 431, Riley v. Nugent. 2 Marsh. 365, Respass v. Parmer. 8 Dana, 320, Singleton’s will. 7 Dana, 348, Fletcher’s adm’r v. Sanders and Weir. 9 Dana, 103, Peebles v. Watts. 2 Chitty’s Pleading, 650. 3 Bibb, 34, Colyer v. Huff. 2 Marsh. 365. . 2 Met. 122, 560. 3 Mon. 455. 4 Littell, 118. 3 Dana, 382. 36 Miss. 226. 7 B. Mon. 17. 45 Mo. 255. 6 J. J. Marsh. 582. 59 Penn. St. 259. 4 Dana, 81. 13 B. Mon. 309. 16 B. Mon. 583, Eountz v. Brown. 17 B. Mon. 156, McClain v. Esham. 33 N. J. 434, N. J. Ex. Co. v. Nichols. 14 Minn. 81, Griggs v. Flakestein. 24 Wis. 618, Eavanaugh v. Janesville. 26 Ind. 370, Indianapolis, &c. R. R. Co. v. McClure. 38 111. 482, Chicago, &c. R. R. Co. v. Triplett. 40 N. Y. 9 and 34, As to signals. 18 B. Mon. 34, Commonwealth v. Graves. CITED Shearman and Redfield on Negligence, secs. 40, 43-48. Code of Practice, sections 18, 19, 28, 519. Sneed’s Rep. 321, Martin v. McKinney. Revised Statutes, chap. 106, sec. 27. Revised Statutes, chap. 37, art. 2, sec. 1. Revised Statutes, 1 Stanton, 338, 339. Littell’s S. C. 303, Ormsby v. Lynch. Constitution of Kentucky, art. 11, sec. 37. Cooley’s Constitutional Limitations, p. 406. 1 M. & B. Statutes, 504, 514, 517, 518. •5 Mon, 583, Pawling v. Speed’s ex’r. 2 Met. 306, Thumb v. Gresham. 6 Dana, 283, Freeman v. Strong. 2 Bush, 46, Small v. Small. 4 Bush, 211, Chaudet v. Stone. 3 Littell, 332, Banks v. Fowler. 2 Littell, 256, Lex. Man. Co. v. Dorr. 2 Met. 168, L. & O. T. P. Co. v. Ballard. 3 Met. 566, Johnson v. Higgins. 2 Met. 149, Chiles v. Drake. 2 Met. 221, Phillips v. Cov. & Cin. Bridge. ,Co. 1 Bush, 146, Gibson v. Belcher. 3 Met. 257, Hedger v. Rennaker. 8 Bush, 111, Smith v. Commonwealth and .Cochran. 8 Bush, 352, O’Bannon v. L., C. & L. R. R. Co. 8 Bush, 453, McReynolds v. Sm allhouse. 2 Duvall, 478, O’Donoghue v. Akin. 8 T. R. 181, Rex v. The Inhabitants of Chelvington. 4 Ellis & Bl. 524, Regina v.The Inhabitants of St. George’s. 6 Wheat. 119, Thatcher v. Powell. . 9 Wheat. 541, Walker v. Turner. 1 Peters’ C. C. R. 30, Kemp v. Kennedy. 3 Jones, 54, Harshaw v. Taylor. 5 Harris & Johns. 42, Wicks v. Caulk. 1 Bibb, 496, Lawless v. Rees. 1 Bibb, 557, Abney v. Barnett. 6 Dana, 19, Case, &c. v. Woolley. 7 Dana, 479, Singleton v. Cogar. 9 Dana, 102, Peebles v. Watts’s adm’r. 9 Bush, 728, L., C. & L. R. R. Co. v. Case’s adm’r. 4 Bush, 593, Ky. Cen. R. R. Co. v. Dills. 4 Bush, 509, 'L. & N. R. R. Co. v. Robinson. 6 Bush, 574, L. & N. R. R. Co. v. Filbem’s adm’x. 17 B. Mon. 632, Barnes v. Edwards. 13 B. Mon. 195, MeCbord v. Fisher’s heirs. 26 Mo. 66, State v. Metger. 27 Barbour, 528-542. 33 Barbour, 430. 7 Bush, 236. 25 Barbour, 603. 21 Barbour, 339. 27 Barbour, 222. 53 Barbour, 339.
73 Ky. 274Davis v. Davis (1874)
Case 16 — APPEALS FROM INFERIOR COURTS APPEAL PROM BRECKINRIDGE CIRCUIT COURT. CITED Civil Code, sections 18, 29, 314, 705. 4 J.J. Marsh. 535, Rives’s ex’r v. Rives. 4 Bush, 623, Baker v. L. & N. R. R. Co. 18 B. Mon.,657, Jones v. Hoffman.
73 Ky. 276Wing v. Hayden (1874)
1. Homestead Exemption. — A sale, of land under the judgment of a court can not divest the owner of his right to a homestead exemption, unless it has been waived in the manner prescribed in the statute. 2. Purchase subject to the exemption. — The purchaser at such sale takes the land subject to the exemption, and although the debtor should subsequently cease to be a housekeeper, or to be entitled to the exemption, it would not inure to the benefit of such purchaser. 3. Pleading a conclusion oe law. — The allegation in an answer that the defendant is an “innocent purchaser” is merely an averment of a conclusion of law. 4. Failure to claim not a waiver. — The fact that the owner of land defended the suit to foreclose a mortgage, and failed to claim a homestead, is no waiver of the exemption, as it can only he waived by a conveyance on the part of the husband and wife, acknowledged and recorded. 5. The homestead right may be waived by a conveyance by the husband and wife purporting to convey the whole estate, and which contains no limitation, either in the deed or the certificate, of the feme's acknowledgment.— But if it appears in either the deed or acknowledgment that she only released her dower, it will not he a waiver of the homestead. 6. Bents accruing from the homestead, while the persons entitled to the exemption were voluntarily out of possession, or which may have been voluntarily paid by them, can not be recovered.
73 Ky. 281Griffith v. Com'wealth ex rel. Hughes (1874)
Case 18 — PETITION ORDINARY — APPEAL PROM DAVIESS CIRCUIT COURT. cited Revised Statutes, chap. 20, art. 4, sec. 2. Revised Statutes, chap. 36, art. 18, sec. 3. Revised Statutes, chap. 97, secs. 12, 14. 1 Duvall, 24, Huston v. Hagar. 3 Met. 347, Terrill v. Cecil. CITED Revised Statutes, chap. 91, sec. 17, 2 Stanton, 343. Act of March 10, 1856, 2 Stanton, 535. 1 M. & B.’s Statutes, page 690.
73 Ky. 286Royse v. Reynolds (1874)
Case 19 — PETITION EQUITY APPEAL FROM ADAIR CIRCUIT COURT.
73 Ky. 288Cosby v. Owensboro & Russellville R. R. (1874)
1. Cities may grant way to railroads through streets. — The right of the authorities of a city, with legislative warrant, to permit the construction and operation through its streets of railroads upon which trains of cars are propelled by steam is not now an open question. (Lex. & Ohio R. R. Co. v. Applegate, 8 Dana, 289; Wolfe v. Cov. & Lex. R. R. Co., 15 B. Mon. 409; L. & F. R. R. Co. v. Brown,'17 B. Mon. 763; Newport & Cincinnati Bridge Co. v. Foote, &c., 9 Bush, 264.) 2. To wjiat uses streets may be put. — Owners of lots bordering on streets hold them subject to the right of appropriation of the street to such public uses, promotive of commerce and business, as the general good of the city or town may require, provided such appropriation is not incompatible with the ends for which the street was established — as a public way for foot-passengers, horsemen, and the vehicles in ordinary use. 3. Lot-owner’s interest in adjacent street. — The right to the use of a street is an incorporeal hereditament legally attached to the ground contiguous thereto — an incident to the title assured by law— a right of which the owners of such contiguous property can not be deprived without compensation. 4 Right oe individual to abate a public _ nuisance. — Private individuals seeking relief against a public nuisance must show that they suffer an injury distinct from that suffered by the general public, and that the injury is one that the public, in the promotion of the general interest, has not the right to inflict upon them without compensation. 5. A railroad embankment was erected in the middle of Lewis Street, Owensboro, with the consent of the city, leaving -a passway on either side from six to thirteen feet wide, exclusive of the sidewalk, so that vehicles meeting could in most places pass without difficulty. Meld, that it was not such an appropriation of the street as gave the adjacent lot-owners a cause of action against the railroad company. 6. The failure of a railroad company to provide proper crossings in a street is not a cause of action in favor of a private individual, unless the municipal authorities have refused to act. 7. The depreciation oe the value oe property by-reason of the construction and operation of a railroad through an adjacent street, or annoyance from noise necessarily attending the same, is no ground for an action by the lot-owner, nor is an annoyance from smoke and fire, unless he is damaged by their actual contact with his premises. 8. The title and possession op streets are in the public, and it alone can, by its representative, the municipal authorities, maintain an action for recovery of possession or for an injury to the street.
73 Ky. 295Manion's adm'r v. Lambert's adm'x (1874)
1. Who is1 a competent witness where personal representative is the opposing party. — The word “party” in section 25, chapter 37, of the General Statutes is the equivalent of the word “ person ” in section 22 of the same chapter. To restrict the word “party” to parties to the record would be inconsistent with the whole tenor and spirit of the act, its intention being to put parties as nearly upon an equal footing as possible, and the language should be liberally construed. 2. The distributee oe an estate is not a competent witness eor the administrator oe his intestate in an action in the name of the administrator against the administrator of another deceased person. 3. The eormer law is unchanged in that all persons are incompetent to testify against an administrator as to facts occurring before the death of the decedent who were incompetent prior to the enactment of this law. 4. Covenant with the administrator in regard to the decedent’s land. — In an action in the name of the administrator on a covenant made to him as such, by which certain repairs are to be made and improvements on the land, in part payment of rent, the cost of making the repairs and improvements may be recovered; but no recovery can be had for an injury to the inheritance or depreciation in the rental value of the land after the term expires. It is only in virtue of the covenant that the administrator can recover at all, and the recovery must be limited to the damages resulting to him by the breach. 5. The record must show the error. — When a court has refused to permit a witness to answer a question the Court of Appeals can not consider the refusal prejudicial, unless it is shown what the witness was expected to state in answer to the question. 6. In impeaching a witness his character before as well as at the time he is called to testify may be proven.
73 Ky. 299Broaddus's devisees v. Broaddus's heirs (1874)
Case 22 — PROBATE OF WILL APPEAL PROM MADISON CIRCUIT COURT. CITED Coke on Lyttleton; 360. 3 Bush, 27, Hill, &c. v. Turner. 5Mon. 129, Fisher v. Cockerill. 5 Mon. 140, Fisher v. Higgins. 6 Bacon’s Abridgment, 370. 1Blackstone’s Commentaries, 44. 1 Bay’s Reports, 179. 5 J. J. Marsh. 91, Shropshire v. Reno. 4 Bibb, 244, Harper’s will. 5 Ind. 137, Addison v. Wilson. 4 Met. 168, Sechrest v. Edwards. 2 B. Mon. 80, Reed’s will. 2 Bush, 614, Kevil v. Kevil. 7 Bush, 491, Munday v. Taylor. 7 Ala., Couch v. Couch. 3 Humphrey, 278, Gass v. Gass. 2 J. J. Marsh. 341, Elliott’s will. 1 B. Mon. 351, Harrison’s will. 4 Greenleaf, 220, Small v. Small. 1 Bush, 116, Turley’s ex’r v. Johnson and Lillard. 6 Ga. 24, Potts v. House. 5 Herring, 459, Sutton v. Sutton. 1 Redfield on Wills, pp. 518-20, 528, 529. 1 Dow & C. L. 85, Lord Lamberton v. D’Alton. 1 Duvall, 259, Sarah v. Miller. 1 Duvall, 203, Harrel v. Harrel. 7 B. Mon. 655, Howard, &c. v. Coke, &c. 2Lord R. 1352. 3Call, 268, 286. 2 Craneh, 272. 10 Mass. 437. 7 Johnson, 477. 12 Mass. 383. 1 Denio, 128. 16 Mass. 215. 3 Shep. 134. 20 Mich. 398. 1 Scam. 335. 43 N. Y. 130. 17 B. Mon. 392, Tudor v. Tudor. 32 Miss. 411, McClintocke v. Curd. 34 Conn. 434, St. Leger’s appeal. 21 Yt. 168, Converse v. Converse. 25 N. Y. 9, Delafield v. Parish. 27 Conn. 192, Dunham’s appeal. 31 Ala. 519, Hughes v. Hughes. 15 N. J. 155, Gardiner v. Gardiner. 45 111. 485, Roe v. Taylor. 21 Ga. 552, Norris v. Stokes. 33 Ala. 5§5, Stubbs v. Houston. CITED General Statutes, Act adopting sec. 3, p. 138. General Statutes, p. 838. Redfield on Wills, pp. 514-23, 528, 530. 4Met. 173, Sechrest, &e. v. Edwards, &c. 2 Bush, 614, Kevil, &c. v. Kevil, &c. 1 Bush, 116, Turley’s ex’r v. Johnson and Lillard. 1 Jarman on Wills, pp. 40, 41. 1 Duvall, 203, Harrel v. Harrel. 2 Bush, 557, Smith, &c. v. Kelly. 4 Dana, 422, Bennett v. Runyon. 5 Bush, 472, Sandford, &c. v. Smith, &e.
73 Ky. 310St. Louis Mutual Life Insurance v. Grigsby (1874)
Case 23 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED 2 Bigelow 125. 1 Ibid. 284. 3 Ibid. 777. 43*N. Y. 283, Baker v. Union Mutual Ins. Co. 44 Yt. 481, Patch v. Phcenix Insurance Co. 100 Mass. 500, Pitt v. Berkshire Insurance Co. CITED Bliss on Life Insurance, secs. 370, 371, 320, 317, 339, 348, 198, 186, 187, 409, 410, 236, 384, 249. Bay’s Medicus Juris., secs. 123, 59, 54, 322-330, 344. Wharton & Stille’s Medicus Juris., secs. 103, 106, 94, 89, 2, 3. Story’s Equity Juris., secs. 222, 223, 227, 228, 191, 193a, 1314, 1316, 1317, 1319. Pickier’s Agents’ Monetary, &c. Tables, pp. 36, 43, 44. Acts 1869-70, pp. 71, 72. Act March 12, 1870, secs. 31, 32. 2 Insurance Chronicle, No. 24, page 374. 1 Big. Bep. 97, 697, 699, 285, 470, 471, 687, 688, 408, 409, 482. 6 Bush, 133, Ford v. Buckeye State Ins. Co. 7 Bush, 179, N. Y. Life Ins. Co. v. Clopton. 2 Big. Bep. 2, 3, 732, 733. 1 Greenleaf’s Evidence, note 5, p. 573, sec. 440. 2 Parsons on Contracts, pp. 793, 794, 795. 1 Parsons on Contracts, pp. 74-78. 1 Ky. Insurance Com. Bep. 1872, p. 90. 2 Ky. Insurance Com. Bep. 1872, pp. 31, 81.
73 Ky. 318Newman v. Proctor (1874)
1. Church property, trusts and trustees of. — A lot of ground in Danville with a church thereon was conveyed in 1858 for a consideration to certain persons “in trust for the use and benefit of the colored members of the Methodist Episcopal Church South, according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of said church at their general conference; and in further trust and confidence that they shall at all times forever hereafter permit such ministers and preachers belonging to said church, as.shall from time to time be duly authorized by the general conference of the ministers and preachers of said church, or by the annual conference authorized by the said general conference, to preach and expound God’s holy word therein.” Held, that this conveyance was for the sole use of the colored members of the Methodist Episcopal Church South, and no one not answering this description is entitled to have the trust enforced. If all such beneficiaries have ceased to be members of that church organization, neither trustees appointed, by that church nor any one else can enforce the trust. 2. Having allowed the colored members to withdraw without objection, and having ratified that withdrawal by ceasing to treat them any longer as members of their church, and having no longer any members answering the description in the deed, the Methodist Episcopal Church South at Danville, and the conferences of which it is a constituent, have lost for the time at least all right over the property. 3. Members of the local society the beneficiaries. — The right to the church edifice can only be asserted through and for the benefit of a local society, or for the benefit of colored members belonging to a local society, in connection with the Methodist Episcopal Church South. The members of this church at large, whether white or colored, not belonging to a local society can have no use of the local premises but through the instrumentality of a local society, and by means of the subordination of the local use to the laws and authority of the church at large. (Gibson v. Armstrong, 7 B. Mon. 490.)
73 Ky. 326German Security Bank v. Jefferson (1874)
1. Preference of a creditor by an insolvent debtor. — A debtor may' mortgage or pledge a portion of his estate to secure the payment of a particular debt, or make payment thereof, though unable to pay all his debts in full, and such mortgage, pledge, or payment will be respected by courts of equity, except when attacked under the provisions of the act of 1856. 2. Marshaling securities. — In the settlement of an insolvent’s estate die chancellor will not, in order to secure equality, set aside or disregard securities obtained by contract; nor will he marshal the securities to the prejudice of the creditor holding an. advantage so obtained. (Logan v. Anderson, 18 B. Mon. 119.) 8. The charter lien of a bank on the stock of its debtor to secure his debt to the bank is a lien created by law, and is only entitled to a preference similar to that allowed partnership over individual creditors. 4. General creditors must be made equal. — In such case, when the bank shall have applied the whole of the proceeds of the bank-stock to the payment of the debt due by the stockholder, equity demands that it'shall be postponed until the general creditors have been made equal out of the general estate, and then the residue will be distributed pro rata among all the creditors.
73 Ky. 331Low v. Blinco (1874)
1. A PURCHASER AT AN EXECUTION SALE WHO HAS NO NOTICE of a title-bond or a deed that has not been recorded within the prescribed time will be protected in his title even in a court of equity. 2. A purchaser with notice will also be protected in case the execution creditor acts in good faith and without notice. Under such circumstances the creditor has the right to sell, and the purchaser necessarily takes all the title that the creditor can require the sheriff to sell. 8. Notice to the purchaser apter his purchase does not appect HIM. — He is by his purchase invested with an' inchoate legal title, which he has the absolute right to perfect by procuring a conveyance from the sheriff, and this right does not depend upon his being a stranger to the execution. In such cases the execution creditor is as much entitled to protection as a stranger. 4. Notice to the execution creditor at any time before he purchases affects His conscience, and lie may be compelled, in obedience to the equity evidenced by the bond or unrecorded deed, to transfer the legal title to the party against whom he ought not in good conscience to hold it. (Halley v. Oldham, 5 B. Mon. 235.) 5. The acts of 1785 and 1796, so far as they relate to the rights of purchasers and creditors without notice of an unrecorded deed, were substantially re-enacted in the Revised Statutes and in the General Statutes. 6. Nominal attitude of parties in pleading not material. — The fact that a party to an action is denominated a defendant, and his petition setting forth his cause of action is styled his answer, does not necessarily change his real attitude toward antagonistic parties or change the real character of his pleading.
73 Ky. 337Vaughn v. Hopson (1874)
1. Taking personal judgment not a waiver. — When the title to property is not to vest in the purchaser until the price is paid the right of the vendor will not be affected by his recovering personal judgment againt the purchaser in an action for the price, the judgment remaining unsatisfied. (Hilliard on Sales, p. 23.) 2. A SALE oe property by a bailee without the consent oe the bailor can not divest the latter of his title. 3. Conditional sale oe chattels. — A promissory note stipulated, “This note is given for a mule, and the mule is bound or the title of the mule remains in H (the vendor) until he gets his money.” Held, that it was a conditional sale, and not a bailment, if the possession was delivered. As between the parties, the vendor could recover the property upon the failure of the vendee to pay the price. 4. Purchaser without notice oe conditions acquires a pereect title. — When there is a conditional sale of chattels with an actual delivery of possession to the vendee a purchaser from the latter in good faith and without notice of the condition acquires a perfect title. But this rule does not apply to a mere offer to sell, or where the negotiation for a sale is not perfected. 5. Where one purchases a chattel and obtains possession by REASON OE ERAUDULENT REPRESENTATIONS, AND THEN SELLS TO AN innocent purchaser, the title vests in the latter, although as between the vendor and vendee the former can reclaim the property. 6. Lien created only by conveyance or mortgage. — In order to create a lien for the purchase-price of chattels, as against a purchaser for a valuable consideration without notice, there must be a conveyance or mortgage to that effect, acknowledged and lodged for record as provided by statute. 7. The case of Patton v. McCane (15 B. Mon. 555) is overruled in so far as it conflicts with this opinion.
73 Ky. 344Ray's administrators v. Bank of Kentucky (1874)
Case 28 — PETITION ORDINARY — APPEAL EROM JEEEERSON COURT OE COMMON PLEAS. CITED Chitty on Pleading, page 555. American Law Beg. 1874, p. 211. 4 Term Rep. 260, Syeds v. Hay. 3 J. J. Marsh. 201, Waller v. Bank of Ky. 2 Duvall, 117, L. & N. R. R. Co. v. Collins. 1 Redfield on Railways, p. 507, sec. 130. 2 Law Rep. Eq. Cases, 257, Barwick v. Eng. Joint Stock Co. 8 Bush, 147, Sherley, &c. v. Billings. 17 Mass. 479, Foster, &c. v. Bank of Essex. CITED Parsons on Contracts, pp. 51, 52. Story on Agency, secs. 253, 254, 255, 257. Morse on Banking, pp. 55, 81. Story on Bailments, secs. 88,407,449,454,38,39,339,16,64. 8 Wend. 494, Rosseter v. Rosseter. 5 Wheat. 326, Mechanics’ Bank v. Bank of Columbia. 1 Esp. 315, Finacune v. Small. 3 Cowen, 281, Vramin v. Barclay. 1 Gray, 147, Brighton v. Peters. 2 P. C. 317, Giblin v. McMullen. '8 C. P. 563, Burns v. Poulsom. 4 Q. B. 476, Story v. Ashton. -1 Redfield on Railways, see. 180. 9 Wend. 268, Schmitt v. Blood. 3 Mason, 132, Tracy v. Wood. 8 Mo. 109, McLean v. Rutherford. '6 Cal. 643, St. Losky v. Davidson. 4 Mass. 296. 5 Dana, 174. 7 Geo. IY. Cases, 46. ' 4 Dana, 218. 3 Dana, 205. 2 Hawkins, 145. 8 Met. 91. 19 Pick. 11 Iowa, 288, Pitts v. Shubert. 14 S. & R. 30, Breeden v. Dubarry. 12 Johns. 300, Carniss v. Bieeker. 17 Mass. 479, Foster v. Essex Bank. 99 Mass. 605, Smith v. First National Bank of Westfield. 12 P. F. Smith, 54, Lancaster Bank v. Smith. 13 C. B. 239, Mitchell v. Crassweller. 14 S. & R. Tompkins v. Saltmarsh.
73 Ky. 357Horner v. Harris's ex'r (1874)
Case 29 — PETITION EQUITY— APPEAL PROM THE LOUISVILLE CHANCERY COURT. CITED Circuit Court Reports, Wallace, J., 342. 8 Dana, 207, Lee v. Beatty. 7 Dana, 380, Moore v. Payne. 3 Dana, 565, Bentley v. Clark. 3 Met. 434, Denton v. Logan. 3 A. K. Marsh. 183, Griffith v. Depew, &c. 2 Met. 240, Savings Bank v. Benton. 5 Littell, 52, Moore v. Simpson. 7 Mon. 594, Key v. Fowler. 2 Smith’s Chancery Practice, 80. 2 Mad. Chancery, 474. 5 B. Mon. 472, Gregory’s heirs v. Ford, &c. 1 B. Mon. 106, McGee v. Gibson. 6 B. Mon. 301, Grimes v. Coyle. 8 B. Mon. 90, Swan, &c. v. Chandler & Phillips. 9 B. Mon. 253, Wickliffe v. Ensor. 9 B. Mon. 38, Moore v. Ann. 9 B. Mon. 390, Hunt v. Ballew. 3 Dana, 59, Southard v. Hall. 2 Dana, 310, Davis v. Young. 1 Dana, 273, Lightburn v. Cooper. 1 Dana, 156, Robards v. Wolip. 5 Dana, 397, Adams v. Hernán. 1 Dana, 519, Fry v. Rees. 7 Dana, 510, Myers v. Sanders. 8 Dana, 273, Mclsaacs v. Hobbs. 7 B. Mon. 371, Kendall v. Hughes. 1 J. J. Marsh. 449, Wallace v. Maxwell. 7 J. J. Marsh. 198, Clark v. Baker. I Marsh. 366, McNeil v. Dixon. 4 Littell, 273, Winlock v. Hardy. 4 Bibb, 17, Floyd v. Breckinridge. II B. Mon. 38, Mayes v. Parish. 13 B. Mon. 477, Breeding’s heirs v. Taylor.
73 Ky. 362Tanner v. Grant (1874)
Case 30 — PETITION EQUITY APPEAL EROM CLARK CIRCUIT COURT. CITED Revised Statutes, chap. 36, art. 2, sec. 3. Civil Code, sec. 319. 2 J. J. Marsh. 481, Sanders’s adm’r v. Buck, &c. CITED Hardin, 518, Blackburn v. Bilbo, &c. 4 B. Mon. .305, Miller v, .Commonwealth. 8 Bush, 132, Commonwealth v. Merrigan. 1 Mon. 90, Crutchers v. Wolf. 1 Mon. 249, Justices of Mason County v. Lee. 5 Mon. 404, Stevens v. Wallace. 1 B. Mon. 239, Williamson v. Logan. 2 B. Mon. 304, Kouns v. Bank of Kentucky. 1 Duvall, Thornton v. McGrath.
73 Ky. 365Bennett v. Thompson (1874)
Case 31 — APPEALS—JUSTICES’ COURTS APPEAL PROM LEWIS CIRCUIT COURT. CITED Civil Code, sections 27, 66, 822. 5 American Reports, 199. 15 B. Mon. 555, Patton v. McCane. CITED Civil Code, section 16. Revised Statutes, act of Feb., 1858, 1 Stanton, 361. 1 Met. 566, Tipton v. Chambers. 1 Met. 449, Clark’s heirs v. Lusk, &e. 1 Met. 395, Brandies, &c. v. Stewart.- 5 Dana, 596, Williams v. Wilson. 7 Dana, 168, Bassett v. Oldham.
73 Ky. 367Second Nat. Bank v. Nat. State Bank (1874)
Case 32 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Deady’s Rep. 434, In re Wallace. Angelí & Ames on Corporations, 561. Bouvier’s Institutes, 108. Ord on Usury, 131. Blyndenburgh on Usury, 106. Civil Code, sections 439, 444. 7 Bush, 344, Payne & Bro. v. Able. 1 Met. 432, Dodd v. King. 3 Met. 96, Haney v. Tempest. 8 Bush, 402, Maddox v. Pox. 7 Bush, 372, Burbank v. Posey. 2 Vernon, 161, Hitchcock v. Sedgewick. 3 Story, 391, Morse v. Godfrey. 7 How. 643, Shawhan v. Wherrett. 1 Met. 809, Miles v. Collins. 3 Met. 285, Muhling y. Sattler. 1 Met. 628, Lee v. Smead. 5 Mass. 511, Baker v. Wheaton. 8 B. Mon. 8, Graham v. Hunt. 9 B. Mon. 44, Egbert v. McMichael. 4 Wheat. 122, Sturgess v. Crowninshield. 2 Marsh. 334, Hamilton v. Wagner. 2 Story’s Bep. 145, Ex parte Foster. 2 Marsh. 108, Hawkins v. King. 4 Bush, 539, Vandiver v. Hodge. 6 Bush, 439, Yeates v. Weeden. 3 Mon. 128, Fitzhugh v. Bank of Shepherdsville. 3 Esp. 81, Spears v. Hartly. 6 Gill, 57, Farmers’ Bank v. Inglehard. 8 Bankrupt Beg. 183, In re Jordan. 1 Hare, 248, Tomlin v. Tomlin. 1 Bussell & Mylne, 353, Shewen v. Vonderhorst. 1 Craig & Phillips, 56, Owens v. Dickinson. 1 La. Ann. 330, Larthet v. Hogan. 8 Bush, 566, Payne v. Pusey. 1 Caines’ Cases, 249, Cole v. Stafford. 8 Paige, 641, Post v. Dart. 7 Blatchford, 18, In re Vogel. 1 Hawley, 88, In re Mallory. 7 Bankrupt Begister, 421. 3 Cal. 162, Hyatt v. Argentee. 8 Cal. 151, Dewey v. Bowman. 9 Allen, 29, Merrifield v. Baker. 8N. J. Eq. Bep. 325, Young y. Young. 3 Mon. 58, Bodley v. Gaither. 4 American Law Times, 247. 1 McC. N. J. 226, Mechanics’ Association v. Conover. 3 Blatchford, 433, State Bank v. Fox., 6 Ohio, 218, Taylor v. Miami Co. 24 Ind. 67, Indiana Bailroad Co. v. McKernan. 39 Ga. 663, Hill v. Fleming. 16 Mass. 275, New England Co. v. Chandler. 16 Pick. 381, Fairfield v. Adams. 13 United States Statutes at Large, 102. 64 Penn. 76, Mays v. Manufacturers’ Bank. 14 S. & B. 118, Wickersham v. Nicholson. 30 Maine, 269, White v. Cushing. 10B. Mon. 155, Carson v. Osborne. 46 N. Y. 12, Ocean National Bank v. Olcott. 28 Illinois, 44, Harris v. Mills. 12 Texas, 427, Duty v. Graham. 23 Texas, 563, Perkins v. Sterne. 18 California, 482, Lord v. Morris. 23 California, 16, Grattan v. Niggins. 52 Penn. 502, Diller v. Brubaker. 57 Penn. 480, Conyngham’s appeal. 24 Maine 263, Agricultural Bank v. Burr. 43 Barb. 165, Richardson v. Abendroth. 32 Ind. 398, Beckett v. Houston. 34 N. Y. 80, N. Y. & H. R. R. Co. v. Schuyler. 33 Iowa, 99, In re Brinkham. 101 Mass. 109, Stephens v. Mechanics’ Bank. CITED Angelí & Ames on Corporations, sections 328, 564. Angelí on Limitation, sec. 73. Kentucky Court of Appeals, Bank of America v. McNeil. 1 B. R. 162, In re Meyers. Civil Code, sec. 651. 2 B. R. 153, In re Migel. B. R. Sup. 7, In re Seymour. 3 B. R. 31. Deady, 434, In re Wallace. 2 B. R. 81, In re Rosenberg. Morse on Banking, 442. 3 B. R. 33. Parsons on Partnerships, 202. 3 B. R. 155, In re Snedaker. 2 B. R. 147, Dwight v. Ames. 3 B. R. 7, In re Thomas. 4 B. R. 34, Hoyt v. Fuel. 3 B. R. 73, In re Valk. 1 B. R. 203. 2 B. R. 138, In re Yogel. 8 B. R. 167, In re Davis. 4 B. R. 5, In re Wynne. 3 B. R. 188, In re Dean. 2 B. R. 20, Irving v. Hughes. 5 B. R. 354, In re Gallison. 1 B. R. 165, Jones v. Leach. 4 B. R. 42, In re Ghirardelli. 4 B. R. 155. 2 B. R. 1, In re Hirsch. 7 Bush, 344, Payne v.Able. 4 B. R. 124, In re Kahley. 5 B. R. 252, Peiper v. Harmer. 6 B. R. 24, In re Mallory. 3 DeGex & J. 294, Athenaeum Life Assurance Society v. Pooley. 2 Cowen, 777, Bank of Utica v. Smalley. 2 Ala. 459, Bates & Hines v. Bank of State of Alabama. 5 Hill, 646, Birkhead v. Brown. 3 How. 483, Black & Chapman v. Zacharie & Co. 7 Bush, 66, Boone, assignee v. HalL 7 Gray, 406, Boyd v. Rockport Cotton Mills. 4 Bibb, 442, Brashear v. Burton. 2 Beasley (N. J.) 24, Broadway Bank v. McElrath. 6 Bush, 198, Brown, assignee v. Farmers’ Bank. 2Peere Williams, 208, Childs v. Hudson Bay Company. 1 Ohio State, 298, Conant v. Seneca Bank. 7 Bush, 349, Copeland v. Copeland. 4 Ala. 652, Cunningham v. Alabama L. & T. Co. 2 B. B. 125, Davis, assignee v. Carpenter. 2 Bissell (C. C. B.), 527, Evansville Nat. Bank v. Met. Nat. Bank. 5 Gray, 373, Fisher v. Essex Bank. 3 Mon. 126, Fitzhugh v. Bank of Shepherdsville. ' 7 Bush, 635, Gill’s adm’x v. Ky. & Col. Gold & Silver Mining Co. 2 Benedict, 469, In re Bigelow. 2B. B. 164, In re N. Y. Kerosene Oil Company. 2 B. B. 170, In re People’s Mail Steamship Company. 4 Am. Law Times, 240, Knight v. Old National Bank. 3 B. B. 53, Lee v. Franklin Av. Sav. Inst. 4 B. B. 165, Markson v. Heany. 4 Bawle, 384, Mechanics’ Bank v. Earp. 3 Kernan, 623, Mechanics’ Bank v. N. Y. & N. H. B. B. Co. 7 B. B. 191, Meyer v. Aurora Insurance Company. 4 B. B. 28, Minon v. Van Nostrand. 3Met. 285, Muhling v. Sattler. 2 Marshall, 456, McClain v. Gregg. 6 Duer, 574, McCready v. Bumsey. 1 Harrington, 27, McDowell v. Bank of Wilmington. 3 Conn. 544, Northrup v. Turnpike Company. 6 Conn. 552, Oxford T. Co. v. Bunnell. 4 Am. Law Times, 247, Pendergast v. Bank of Stockton. 3 Cranch (C. C. B.) 363, Pierson & Brent v. Bank of Washington. 6 Dana, 107, Price v. Price’s heirs. 7 Wallace, 415, Bailroad v. Howard. 9 Mo. 150, St. Louis Perpetual Ins. Co. v. Goodfellow. 4 B. B. 1, Samson, assignee v. Burton. 4 Allen, 282, Sewall v. Boston Water Power Co. 6 Bush, 149, Shackleford, assignee v. Collier. 7 B. B. 497, Shearman v. Bingham. 2 Abbott, 422, Shoemaker v. National Mechanics’ Bank. 7 J. J. Marsh. 444, Smith v. Morrow. 5 B. B. 466, State of North Carolina v. Trustees, &c. 3 Paige, 350, Stebbins v. Phcenix Insurance Co. 2 Abbott, 430, Stewart v. National Union Bank. 2 Wheaton, 392, Union Bank v. Laird. 1 Harris & Gill, 409, Union Bank v. Bidgeley. 1 Blatchford (C. C. B.) 223, United States v. The Ship Becorder. 1 Edwards’ Ch’y, 46, 84, Verplank v. Mercantile Ins. Co. 8 S. & R. 73, Wain’s assignees v. Bank of North. America. 3 Lansing, 338, Weaver v. Barden. 5 Blatchford (O. C..R.) 59, Williams v. Mechanics’ Bank. 2 Lansing, 377, Winslow v. Clark. 3 B. R. 146, World Co. v. Brooks. 24 Maine, 256, Agricultural Bank v. Barr. . 24 Maine, 273, Agricultural Bank v. Wilson. 27 Barb. 424, Arnold v. Suffolk Bank. 11 Serg. & Rawle, 411, Baird V. Bank of Washington. 20 N. Y. 517, Bank of Attica v. Manufacturers and Traders’ Bank. 11 Wallace, 377, Bank v. Lanier. 99 Mass. 376, Bates v. Tappan. 32 Ind. 398, Becket v. Houston. 12 Gray, 213, Blanchard v. Gas-light Company. 10 Peters, 615, Brent v. Bank of Washington. 30 Conn. 231, Bridgeport Bank v. N. Y. & N. H. R. R. Co. 46 Mo. 143, Coffey v. National Bank of State of Missouri. 53 Barb. 512, Conklin v. Second National Bank. 45 N. Y. 655, Conklin v. Second National Bank.' 11 Barb. 580, Dunn v. Commercial Bank. 12 Wheaton, 210, Edwards’s lessee v. Darby. 48 Barb. 26, Grocers’ National Bank v. Clark. 12Howard, 80, Harris v. Runnels. 39 Georgia, 64, Jones v. Lellyett. 46 Penn. St. R. 88, Klopp & Stump v. Lebanon Bank. 24 N. Y. 286, Leggett v. Bank of Sing Sing. 57 Maine, 85, Leighton v. Kelsey. 48 N. Y. 585, Leitch v. Wells. 45 Mo. 516, Mechanics’ Bank v. Merchants’ Bank. 52 Mo. 377, Moore v. Bank of Commerce. 19 Barb. 569, Mott v. U. S. Trust Co. 46 N. Y. 329, McNeil v. Tenth National Bank. 20 Cal. 533, Naglee v. Pacific Wharf Co. 38 Barb. 536, New York & New Haven R. R. Co. v. Schuyler. 34 N. Y. 30, New York & New Haven R. R. Co. v. Schuyler. 46 N. Y. 14, Ocean National Bank v. Olcott. 17 Mass. 144, Packard v. Richardson. 57 Maine, .26, Palmer v. Merrill. 42 N. H. 124, Pinkerton v. M.- & L. R. R. 14 Maryland, 271, Reese & Fisher v. Bank of Commerce. 43 Barb. 165, Richardson v. Abendroth. 53 Barb. 495, Rosen'baclc v. Salt Springs National Bank. 21 Vermont, 362, Sabin v. Bank .of Woodstock. 29 Conn. 245, Shipman v. iEtna Ins. Co. 52 Maine, 509, Showhegan Bank v. Cutler. 43 Barb. 195, Taylor v. Hutton. 56 Penn. St. B. 82, Thorp v. Wegefarth. 14 Wallace, 95, Traders’ Bank v. Campbell. 26 Conn. 144, Vansands v. Middlesex County Bank. 16 B Mon. 5, Wight v. Shelby B. B. Co. 100 Mass. 383, Shaw v. Carter.
73 Ky. 382Elizabethtown, Lexington & Big Sandy Railroad v. Combs (1874)
1. The legal effect of a dedication must be determined by tbe terms of tbe dedication, and not by tbe intentions of tbe dedicator in making it. 2. Uses streets may be put to and rights of adjacent lot-owners. — There is a large class of cases in which no recovery can be bad for injuries to adjacent property from the construction of public improvements in tbe streets of towns and cities, tbe lot-owner holding subject to tbe right of the public to use tbe streets for any purpose not inconsistent with tbe uses for which they were (dedicated; but lot-owners have a peculiar interest in tbe adjacent street, which neither tbe local nor general public have, in tbe nature of an incorporeal hereditament — a franchise tbe right to which is as inviolable as tbe property in tbe lots themselves. (Lex. & Ohio R. R. Co. v. Applegate, 8 Dana, 294 ; 7 Ind. 38; 7 Ohio, 217; 6 Peters, 431.) 3. Adjacent lot-owners’ right oe action against persons obstructing streets. — If an appropriation of a street, even by legislative and municipal sanction, unreasonably abridges the right of adjacent lot-owners to use the street as a means of ingress and egress, they are thereby deprived of a property-right without compensation, and an action will lie against the person or corporation guilty of usurping such unreasonable and exclusive use for the recovery of such immediate and direct damages as the owner may sustain. 4. What amounts to an obstruction of a street by a railroad.— Where a railroad has been so located in a street as to deprive the owner of an adjacent lot of the means-of ingress and egress to and from his lot with ordinary vehicles on either side of the road when trains are passing or standing in the street, he may recover from the railroad company such damages as he has thereby sustained. 5. Damage from smoke, soot, or fire from locomotives thrown or blown into or against adjacent houses in such case will entitle the owner to recover therefor. 6. The measure of damage in such cases will be the diminution of the value of the property occasioned by these circumstances, and not the difference, between the value of the property before and after the building of the road. 7. Single recovery for entire injury where permament. — In actions for injury to real property by trespassers the plaintiff can only recover compensation for the injury done up to the commencement of the action, where the injury is not permanent and enduring in its nature; but where it is permanent and continuing a single recovery may be had for the whole injury to result from the acts complained of.
73 Ky. 394Myers's administrator v. Forsythe (1874)
1. Widow and infant children are entitled to property exempted from execution. — A debtor’s right of action for the recovery of property exempted from execution or its value does not on his death pass to his personal representative, but to his widow, for the benefit of herself and the infant children residing with her. 2. Where the exempted property has been sold under attachment, and the proceeds are in court undistributed at the death of the debtor, they pass to the widow and children, as if the property had remained unsold. The fact that the wife was present at the sale and made no objection can not operate as a waiver of her right.
73 Ky. 400Thurmond v. Andrews (1874)
Case 35 — PETITION EQUITY APPEAL FROM GRAVES CIRCUIT COURT. CITED Bump on Bankruptcy, pp. 51, 395. Bankruptcy Act of Congress, sec. 11. Revised Statutes, chap. 24, sec. 18, 1 Stanton, 281. Gazzam on Bankruptcy, pp. 255, 154. 1 Wallace, 233, Baldwin v. Hale. 9 Cranch, 131, The Mary. 5 Mon. 151. 9 How. 350, Boswell’s lessee v. Otis, &c. 2 Bankrupt Register, pp. 174, 144, 74, 81, 59. 4 N. Y. 518, Oakley v. Aspinwall. 8 Met. (Mass.) 79, Burnside v. Bingham. 7 Bush, 347, Payne & Bro. v. Able, &e. 4 Dana, 508, Williams’s heirs v. Wilson. 6 Mon. 286, Hynes, &c. v. Campbell. 12 Wheat. 220, Ogden v. Saunders. 14 How. U. S. 334, Harris v. Hardeman, &c. 33 Bankrupt Register, p. 189. CITED Bankrupt Law of Congress, secs. 29, 34. 2 American Reports, 19. 7 Bush, 346, Payne & Bro. v. Able, &c.
73 Ky. 406Wilson v. House (1874)
Where no chose in action or other claim was put in the hands of the attorney and no judgment for money was recovered the attorney has no lien for his services. Where nothing is recovered for his client there is nothing to which an attorney’s lien could attach. For clerk's fees against one party the circuit court in this case erroneously adjudged a lien upon a fund to which the other party was entitled.
73 Ky. 408Dawson v. Litsey (1874)
1. A SALE OF PROPERTY UNDER EXECUTION IS A MINISTERIAL ACT of the officer making it, and when he exceeds his authority the sale is void. Hence a sale of more land than is necessary to satisfy the execution is void. 2. But a sale under a decree of a court is a judicial act.— A commissioner in selling property under a decree acts as the agent of the court, and although he may exceed his authority, and sell more land than is authorized by the judgment, yet if the court, in the exercise of its judicial discretion, confirms the sale, it is not void, hut only voidable, and can not he assailed in a collateral proceeding. (Voorhees v. Bank of United States, 10 Peters, 451; Bustard v. Gates, 4 Dana, 441; Dorsey v. Kendall, 8 Bush, 299.) 3. An order confirming a report of sale is final, being a judicial recognition of the right of the commissioner to make the sale as reported, and may he appealed from by the party aggrieved. 4. Effect of a judgment.—A court having jurisdiction of the parties and the subject-matter of the action, when rendering a judgment, determines the rights of all the parties to the judgment so long as it remains unreversed.
73 Ky. 413Garrott v. Jaffray & Co. (1874)
Case 38—PETITION EQUITY— APPEAL PROM CHRISTIAN CIRCUIT COURT. CITED Civil Code, sections 474, 475, 221. 3 B. Mon. 513, Bay v. Bank of Kentucky. 8 Bush, 631, Ellis v. Kelly. CITED Civil Code, sections 439, 440, 221. Drake on Attachment, secs. 718, 574, 775, 584. 1 Story’s Equity, section 151. 2 Story’s Equity, sections 1047, 1057. 1Story on Contracts, section 376 F. 1 Parspns on Contracts, 229, 230. 1 Parsons on Bills and Notes, 14, 15. 2 Parsons on Bills and Notes, 386. 1 Met. 153. Hardin, 223. 2 Met. 228, 535. Dixon Subrogation, 137. 3 Met. 279, 280. 1 Bush, 247, 489. 1 Bibh, 254. 2 Bush, 101. 2 Bibh, 83. 3 Bush, 96. 1 Dana, 117. 4 Bush, 271. 2 Dana, 115. 7 Bush, 649. 3 Mon. 46. 8 Bush, 197. 8 B. Mon. 168, 169. 1 Howard, 159. 16 Peters, 1. 1 Gray, 81, 82. 23 Wend. 528, 531. 6 Mon. 89. 24 Mo. 49, 218. 3Marsh. 163. 17 Howard, 612. 1 Stanton’s B. S. 268.
73 Ky. 419Greenbaum Bros. & Co. v. Megibben (1874)
1. Warehousemen’s receipts are transferable by indorsement in blank or by special indorsement, and with like effect and remedy as bills of exchange. (Act of 1869.) 2. Warehousemen’s liens and encumbrances upon goods must be set forth or explained in their receipts given for the same. (Ibid.) 3. A warehouseman sold fifty barrels of whisky, and took the purchaser’s note at four months for the price, and gave to him a receipt for the same, deliverable on return of the receipt and payment of storage and charges. The receipt was indorsed by the purchaser to an innocent holder as collateral to secure a loan of money obtained on the faith of the receipt. The four-months’ note not being paid, the warehouseman refused to deliver the whisky on the return of his receipt and tender of storage and charges. The suit of the innocent holder of the receipt having been transferred to equity— Held, that the whisky should be sold and proceeds applied first to the payment of the loan, and the balance, if any, to the payment of the warehouseman’s debt against the purchaser of the whisky. It was immaterial whether the purchaser of the whisky acted fraudulently or not, as the receipt was negotiable, and for a valuable consideration had passed into the hands of an innocent holder.
73 Ky. 424Commonwealth v. Jackson (1874)
Case 40—PETITION EQUITY— APPEAL PROM DAVIESS CIRCUIT COURT. CITED Revised Statutes, 2 Stanton, sec. 6, p. 269. Herman on Estoppel, secs. 43, 44, pp. 37, 38. Civil Code, secs. 485, 486, 490. Revised Statutes, chap. 86, secs. 10, 11. 8 B. Mon. 800, McBurnie v. Overstreet. 7 Kansas, 17, Burton v. Boyd. 4 Maine, 582, Rowell v. Hayden. 8 Md. 352, Harderson v. Mayor of Baltimore. 10 B. Mon. 180, Ford v. Gregory’s heirs. 16 Minn. 172, Comer v. Baldwin. 27 Penn. St. 30, Blime v. Robinson. 20 N. H. 140, Boody v. Davis. 34 2ST. H. 10 Ind. 191. 14 B. Mon. 189, Grimes v. Redmon. 105 Mass. 560, Hawkes v. Pike. CITED Revised Statutes, 2 Stanton, sec. 6, p. 269. Revised Statutes, 2 Stanton, pp. 86, 87. Civil Code, secs. 485, 486, 487, 488. Revised Statutes, Myers’s Supplement, 406. 8 B. Mon. 300, McBurnie v. Overstreet. 1 Mich. 18, Webber v. Webber. 2 Bush, 236, Deposit Bank of Cynthiana v. Berry’s adm’r. 3 Washburn on .Real Property, p. 265. 9 Mass. 307, Hatch v. Hatch. 6 Barb. 98, Rathbone v. Rathbone. 2 Barr, 191, Arison v. Hamstead. 1 Bree. 282, Herbert v. Herbert. 1 Penn. 32, Chess v. Chess. 10B. Mon. 180, Ford, &c. v. Gregory’s heirs. 39 111. 413, Rivard'v. Walker. 42 111. 311, Walker v. Walker. 28 Iowa, 241, Cecil v. Beaven. 48 N. Y. 218, Everett v. Everett. 12 Mass. 456, Harrison v. Trustees, &c. 17 Mass. 213, Chapel v. Buel. 12 Ala. 734, Burt v. Cassety. 10 Mass. 456, Maynard v. Maynard. 23 Wend. 43, Gilbert v. North. 13 S. & M. 22, Ingraham v. Grigg. 103 Mass. 568, Mather v. Curtiss.
73 Ky. 431Hawes v. Orr (1874)
1. Pendente lite purchase.—It is a general rule that one purchasing property which is at the time the subject of litigation takes it subject to the judgment that may be rendered in the case. But in order to bind a purchaser by a judgment rendered in a case to which he was not a party the judgment must be the result of litigation pending at the time of his purchase, and not of a new litigation commenced afterward. 2. New action by way op amended pleadino will not relate back.—So far as the pendency of the suit can affect others than parties to the action, matter brought into it by amended pleading will not relate back to the time of the filing of the original, but the suit as to the matters set up in the amendment will be considered as pending only from the time the amendment was filed. (Stone, &c. v. Connelly, 1 Metcalfe, 656; Dudley v. Price, 10 B. Monroe, 88.) 3. Purchase pending suit eor partition.—The pendency of a suit for partition of land among the part owners does not withdraw the land sought to be divided from the reach of an execution against such part owners. But if the undivided share of one part owner is levied on and sold, this would be a pendente lite purchase, and the purchaser must accept such interest as is allotted to him whose share he purchased. 4. Suit must be prosecuted with diligence.—One who claims the benefit of a Us pendens against a bona fide purchaser must show that the suit was prosecuted with some diligence, and that there was no unreasonable delay in prosecuting it to a final termination. (Erhman v. Kendrick, 1 Met. 149; Watson v. Wilson, 2 Dana, 406; Clarkson v: Morgan, 6 B. Mon. 447.) 5. Court eirst acquiring jurisdiction can not be ousted.—The doctrine is recognized that the court first acquiring jurisdiction has a right to go on until it has performed its office in reference to the subject-matter in litigation, and will not allow itself to be ousted of its jurisdiction or permit the thing in contest to be wrested from it, so that it can not execute its judgment.
73 Ky. 441Hagan v. Patterson (1874)
Case 44—PETITION EQUITY— APPEAL FROM MEADE CIRCUIT COURT. CITED Revised Statutes, chap. 37, art. 2, secs. 35, 36. 2 B. Mon. 65. 2 Marshall, 341. 4 Bush, 347. 3 Bibb, 46. 4 Bush, 636. 1 Metcalfe, 598. 9 B. Mon. 169. 12 B. Mon. 271. 1 Mon. 68. Civil Code, 473. CITED Revised Statutes, chap. 53, sec. 6, 2 Stanton, 65. Revised Statutes, chap. 63, art. 3, sec. 5. Civil Code, sec. 398. 17 B. Mon. 188. 17 B. Mon. 188. 1 Bush, 161, Doughty v. Moss. 1 Met. 318, Kelly v. Smith. 1 Duvall, 283, Baker v. Grundy. 12 B. Mon. 269, Grundy’s heirs v. Grundy, &c.
73 Ky. 447Harper v. Harper (1874)
1. Appeal without motion por a new trial having been made.— Where an appeal is prosecuted from a judgment on a verdict without a motion for a new trial having been made and overruled, nothing is brought before the Court of Appeals except the pleadings, verdict, and judgment; and if the pleadings and verdict authorize the judgment rendered, it will be affirmed without regard to the rulings of the court at the trial further than they appear in the judgment. 2. On a motion por a new trial the court should review all ITS RULINGS EXCEPTED TO BY THE UNSUCCESSPUL PARTY, and if error has been committed to his prejudice, grant a new trial; and a refusal to do so in such case will be error for which the order will be reversed and the case remanded for a new trial. 3. The time por piling a bill op exceptions is reckoned prom the overruling of the motion for a new trial, and not from the rendition of the judgment on the verdict, and the court has no power pending the motion for new trial to prescribe the time within which the bill of exceptions shall be filed. 4. Depenses in actions op slander are either such as deny the SPEAKING OP THE WORDS CHARGED OR SUCH AS JUSTIPY.—Pleas of justification must admit the speaking of the words charged; but having admitted it, need not necessarily allege the truth of the words. 5. Malice in publishing the words is an essential ingredient in the cause of action, and will generally be implied from their mere utterance. But if the words were spoken in the exercise of a social duty, or under circumstances which prima facie show that they were spoken with a good instead of a had motive, the implication of malice does not arise, or is considered as being rebutted by proof of the occasion of the publication, and must be made out by extrinsid evidence. (Grimes v. Coyle, 6 B. Mon. 301; Fans' v. Starke, 9'Dana, 128; Hart v. Iteed, 1 B. Mon. 166; Parker v. McQueen, 8 B. Mon. 16.) 6. The plea oe not guilty under the former practice imported more than a denial of the speaking of the words charged, and under it it might he shown that the words were used in an innocent sense or on a justifiable occasion; but evidence of the truth of the charge was not permitted. (Williams v. Greenwade, 3 Dana, 432; McGee' v. Sodusky, 5 J. J. Marsh. 185; Samuel v. Bond, Littell’s Select Oases, 158.) 7. The Code of Practice abolished all forms of pleading and formal pleas, and requires that the petition shall state the facts constituting the plaintiff’s cause of action, and that the answer shall contain a “denial of each allegation of the petition’controverted by the defendant.” 8. How a-ll defenses in slander may be pleaded in one answer.—Under the Code the defendant may in his answer deny the speaking- of the defamatory matter charged, and in a second paragraph admit the publication and allege its truth, and in still another admit the words, and without averring their truth or falsity justify by alleging such facts as are relied on to excuse their publication. 9. Where the answer is merely a denial of speaking the words charged nothing is admissible in evidence which tends either to prove the truth of the charge or to establish a defense on the ground that they were spoken on a justifiable occasion. (Townshend on Slander and Libel, 211.)
73 Ky. 460Newcomb, Buchanan & Co. v. Cabell (1874)
1. All that is essential to the sale oe a chattel at common law is the agreement of the parties that the property in the subject-matter shall pass from the vendor to the vendee for a consideration given or promised to be given by the vendee. (Parsons on Contracts, 435.) 2. The title remains in the vendor ie any material act is to BE DONE- BEEORE the delivery to distinguish the goods or ascer-i tain the price, notwithstanding the contract for the sale is complete! in other respects. 3. Warehouseman’s Receipt—Constructive delivery.—The delivery of a warehouseman’s receipt for property in store is a symbolic delivery of the property itself to the purchaser, and passes to him the title and constructive possession, and the warehouseman,becomes his bailee. (Burton v. Lurgan, 40 111. 325; Gibson v. Stevens, 8 How. 400; How v. Barker, 8 Cal. 614; Nat. Bank v. Walbridge, 19 Ohio St. R.) 4. A distiller sold whisky stored in his warehouse in barrels branded with numbers, and delivered to the purchaser a certificate signed by himself as proprietor of the warehouse, attested by the United States storekeeper thereof, in which the barrels were designated by numbers, and deliverable to the order “ of the purchaser on the return of the certificate and the' payment of tax, storage, cooperage, and insurance thereon.M The price per gallon was agreed, and the exact quantity was to be ascertained by regauging after the transportation of the whisky to the house of the purchaser, the transportation and regauging to be done by the purchaser at the cost of the vendor. Creditors of the distiller attached the whisky in the warehouse before transported and after it was paid for. Held, that the whisky was sufficiently identified and the sale was absolute, passing the title to the purchaser by the symbolic delivery of the warehouse receipts. The actual possession was in the storekeeper. 5. A SALE OF PERSONALTY WITHOUT DELIVERY OF POSSESSION PASSES THE ABSOLUTE TITLE AS BETWEEN THE PARTIES.—So SOOn as a bargain of sale is struck the contract becomes absolute without actual payment or delivery, and the property and risk of accident - vests in the buyer. (Buffington v. Ulen, 7 Bush, 231; Willis v. Willis, 6 Dana, 48.)
73 Ky. 476Commonwealth v. Smith (1874)
1. Grand jurymen are required to be citizens and housekeepers of the county and over the age of twenty-one years. (Revised Statutes, chapter 55, article 1, section 1.) The failure of any member of the grand jury to possess each of the qualifications prescribed by the statute renders indictments found by such jury subject to be set aside as for a substantial error in the formation of the grand jury. (Criminal Code, section 159.) 2. The right to make a motion to set aside an indictment is waived by the defendant if not made at the proper time and in the appropriate mode (Criminal Code, section 158); and Whenever an indictment for a misdemeanor is called for trial the defendant ought either to move to set it aside or plead thereto; and by failing to do either the defendant loses his opportunity to plead as matter of right, and should thereafter be refused leave to plead any other than a meritorious plea in har. A motion to set aside an indictment is in the nature of a plea in abatement; and if not made at the proper time, the right to make it is waived. 8. Objection to the indictments because one of the grand jurors was not a housekeeper, not having been made until the second term after the defendants were before the court on process, came too late, and ought not to have been entertained.
73 Ky. 481Howard's adm'r v. Leavell's adm'x (1874)
Case 8—PETITION ORDINARY— APPEAL PROM CHRISTIAN CIRCUIT COURT. CITED 'General Statutes, chap. 39, art 2, secs. 35, 36, 37. Civil Code, sections 437, 473, 611. Constitution of United States, art. 4, sec. 1. 7 Cranch, 481, Mills v. Duryee. 1 Met. 600, Trabue’s ex’r v. Harris. 7 Bush, 301, Curry’s adm’r v. Bryant’s adm’r. 15 B. Mon. 364, Rogers v. Rogers. 15 B. Mon. 181, Thomas’s ex’r v. Thomas. CITED 1 Met. 600, Trabúé’s ex’r v. Harris.
73 Ky. 485Mortimer v. Louisville & Nashville Railroad (1874)
1. Actions must be brought within six months after the killing or injury against the Louisville & Nashville Railroad Company for damages for killing or injuring stock on its road or branch roads. 2. The act op March 17, 1871, entitled “An act to further protect the owners of stock living along the line of railways,” does not take from or suspend the right of the owner of the stock injured by the railway company to institute his action for damages, immediately after the injury is done; nor does it either expressly or by implication repeal the former statutes on the subject, or suspend or affect the limitation of such actions. If the owner pursues the mode provided by this statute to increase his recovery, he by his own act diminishes the time within which his action must be brought, and must abide the legal consequence.
73 Ky. 488Commonwealth v. Gale (1874)
Case 10—INDICTMENT— APPEAL EROM ROBERTSON CIRCUIT COURT. .CITED General Statutes, chap. 33, art. 13, secs. 6, 11,12.
73 Ky. 491Samuels v. Commonwealth (1874)
Case 11—MOTION IN FISCAL COURT— APPEAL PROM FRANLIN CIRCUIT COURT. CITED General Statutes, sections 6, 7, page 741. General Statutes, page 727. CITED General Statutes, section 7, page 732. General Statutes, page .288. Revised Statutes, 2 Stanton, pages 262, 268.
73 Ky. 495Coffman v. Commonwealth (1874)
1. Confessions.—Where a witness for the prosecution remembered'a part only of the declaration of the accused relative to the homicide the accused had the right to introduce other witnesses, who heard the entire conversation, to prove .the whole, unless he himself drew forth the statement from the witness as to the declaration. '2. What instructions should contain.—As a general rule, instrhctions ought to be based upon such facts only as must be found by the jury in order to establish the guilt of the accused or make out his. defense, and leave to counsel to argue the facts in evidence tending to establish the essential facts and to the jury to decide • how far the evidence establishes those facts. The instructions in this case were “objectionable, because of an attempt made to enumerate the. collateral facts which the evidence tended to prove, instead of being hypothecated upon tfie facts necessary to constitute guilt or to make out a defense.” ■3. Reducing murder to manslaughter.—An instruction is erroneoiis that requires that the slayer should hav.e been without fault before heat of passion could .reduce from murder to manslaughter a killing done by a blow of the fist in a sudden quarrel. 4. Law or sele-defense.—In order to excuse a homicide on the ground of self-defense it is not necessary that there should he actual immediate impending danger; but if the slayer believes, and has reasonable grounds to believe, that there is immediate impending danger, and that he has no other apparent and safe means of escape, he may strike, although the supposed danger has no existence. 5. Where the accused, and deceased quarreled, and the latter invited the former to go into the adjacent street with him and settle the matter, and they went, and a fight ensued in which the latter was killed, it was error in the court in instructing the jury to assume that the going into the street by the accused voluntarily was with a hostile intent. 6. Where the death is caused by surgical operation.—Where a wound is apparently mortal, and a surgical operation is performed in a proper manner, under circumstances which render it necessary in the opinion of competent surgeons, and such operation is itself the immediate cause of the death, the person who inflicted the wound will still be responsible for the death. (3 Cushing, 181; 21 Alabama, 300.) But if the death results from grossly erroneous surgical or medical treatment, the original author will not be responsible.
73 Ky. 501Whitesides v. Northern Bank (1874)
1. Where the holder oe a bill oe exchange alters the general acceptance thereof by the addition of a place of payment, the instrument is thereby rendered void, and can not be made the foundation of an action against any of the parties to it, except such as may have consented to the alteration. (Burchfield v. Moore, 3 Ellis & Bl. 683; 25 Eng. Law and Eq. Rep. 123; Oakey v. Wilcox, 3 How. Miss. 330; 2 Parsons on Notes and Bills, 548.) 2. The answer of an indorser in an action on the bill, setting up an alteration in the bill, need not aver that neither he nor the acceptor ratified the alteration before the bill became due, and on demurrer to the answer no inference unfavorable to the indorser can be drawn from the fact that the acceptor is making no defense to the action.
73 Ky. 504Woolfolk v. Bank of America (1874)
1. Figures in the margin of a bill of exchange áre merely a memorandum for convenience, and form no part of it, and an alteration in them without the consent of the drawer, making them conform to the body of the instrument, will not vitiate the bill. But if a bill is signed in blank, with figures in the margin indicating the amount to be filled in the blank, they will be regarded as material as to any holder with knowledge of the facts. Parol evidence is not admissible to show that the sum intended was that stated in the margin, instead of that in the body. (Smith v. Smith, 1 R. I. 398; Henderson v. Bondurant, 39 Mo.; 1 Parsons on Bills, 28.) 2. A bona fide holder of a negotiable instrument for value, without notice of facts which impeach its validity between antecedent parties, if he takes it under an indorsement made before it became due, holds it unaffected by those facts, and may recover thereon, although as between antecedent parties the transaction may be invalid. (Swift v. Tyson, 16 Peters, 1; Goodman v. Simonds, 20 How. 367.) 3. Negligence in taking bill.—The title of a holder of a bill for value is not defeated by proof that he was negligent, or even grossly negligent, in taking the note or bill, and that he omitted to make inquiries that common prudence dictated. (2 Parsons on Bills and Notes, 279.) 4. Holder is aeeected by defects appearing on pace oe the bill.—Where the bill on its face shows that the title is in another than the party presenting it, or is overdue, or has been protested for non-payment, or material parts of the paper altered, erased, or obliterated and other words supplied, the paper dishonoring itself, the party taking it must make inquiry or abide the loss, if it should appear that the bill was mutilated or changed without the consent of the parties to it. Whether such .defects appear on the face of the bill is more a question of law than fact, and when there is nothing on the face of the paper to give such notice the court should not present such issue to the jury. 5. Alteration oe bill renders it invalid.—If a bill is complete, any alteration in a material part without the consent or authority of the parties to it renders it invalid in the hands of an innocent holder, as well as of one who takes it with knowledge of the fraud. (Chitty on Bills, 100; 2 Parsons on Bills, 580.) 6. Bills signed in blank.—But when blanks are left the party who is so confiding as to affix his signature to such paper, investing those for whose accommodation it is made with power to fill the blanks, as well as the opportunity to practice fraud, must suffer the loss rather than an innocent holder. (Whitesides v. Northern Bank of Kentucky, 10 Bush, 501.) 7. A party seeking to escape liability must allege and prove a knowledge of the facts constituting the fraud on the part of the holder; that is, such facts as would satisfy one of ordinary prudence and judgment of the infirmity in the bill. Evidence that the holder had knowledge of facts that should lead to' an inquiry by which the fraud might be ascertained is inadmissible.
73 Ky. 519Marksbury v. Taylor (1874)
Case 15—PETITION EQUITY— APPEAL PROM BOYLE CIRCUIT COURT. cited MS. Op., Supreme Court of Tennessee, December Term, 1873, Nancy Ann Bivins, &c. v. Needham Jarnagan, &c. Law Reg., 1862, Dean and wife v. Negley. Chitty on Contracts, page 215. Revised Statutes, 1 Stanton, 267. 3 Mon. 44, Winebrenner v. Weisiger. 1 Parsons on Contracts, pages 435, 436. 2 Met. 164, Collins v. Merrell. 1 Story’s Equity, section 190. 1 Maddock’s Chancery, 228. 3 Bibb, 498, Brown’s adm’r v. Langford. 8 B. Mon. 98. 9 B. Mon. 90. 7 B. Mon. 195. 5 Mon. 508. CITED 3 Ga. 176, Howell v. Fountain. 6 La. Ann. 317, Denton v. Ewing. 2 Nott & McChord, 518. 2 Story’s Equity, section 697. 10 La. Ann. 199, Heitz v. Wilder. 11 Mass. 368, Worcester v. Eaton. 15 La. Ann. 519. 1 J. J. Marsh. 390. 23 N. Y. 128. 1 Met. 287.
73 Ky. 526Wilson v. Commonwealth (1874)
An escaped prisoner convicted oe a eelony will not be permitted to prosecute an appeal to reverse the judgment of conviction. Convicted of the crime of murder and sentenced to be confined in the penitentiary for life, the defendant obtained leave to apply to a judge of the Court of Appeals for an order granting an appeal, and thereafter made' his escape. Proof of his escape being made to the court, his appeal is dismissed on motion of the attorney-general.
73 Ky. 528Hind v. Rice (1874)
1. Appeal prosecuted directly prom justice’s court to circuit court was properly dismissed by the circuit court. 2. An act embracing more than one subject in its title and also in the body of the act is wholly unconstitutional and void. The act approved March 2, 1863 (Myers’s Supplement, p. 29, and also printed as an amendment to section 847 of the Civil Code), entitled “An act regulating appeals from justices’ and police courts, and officers of the quarterly court,” has two subjects expressed in its title, and the body of the act also relates to two subjects, to wit, “appeals” and “officers of the quarterly court,” and therefore the whole of said act is unconstitutional and void.
73 Ky. 529Kenton County Court v. Bank Lick Turnpike Co. (1874)
Case 18—PETITION EQUITY— APPEAL PROM KENTON CIRCUIT COURT. CITED Act of Feb. 29, 1836, Acts 1835-36, p. 348, secs. 18, 355. Act of Feb. 6, 1889, Acts 1838-39, p. 107. Act of Feb. 17, 1866, 1 Acts 1865-66, p. 726. Act of Feb. 27, 1867, 2 Acts 1867, chap. 1483. Act of Feb. 10, 1869,1 Acts 1869, chap. 1408. Angelí & Ames on Corporations, secs. 85, 31, 684. Revised Statutes, 2 Stanton, 121. American Law Register, March, 1871, p. 194. American Law Register, March, 1874, p. 185. Grant on Corporations, 19. 7 Bush, 667. 2 Kent’s Commentaries, 241. 5 Bush, 458. 20 English Law Reports, 58. 5 Bush, 230. 32 Md. 29, Lyons v. Orange, Alexandria & M. R. R. Co. CITED Constitution of United States, art. 13, sec. 20; art. 1, sec. 10. Act of February 6, 1839, section 18. Civil Code, section 528. 5 Bush, 460, Hamilton v. Keith, &c. 4 Wallace, 549, Yonhoffman v. City of Quincy. 3 Blackstone (Sharswood’s), 412.
73 Ky. 538Vinson v. Hallowell (1874)
Case 19—PETITION EQUITY— APPEAL FROM CALDWELL CIRCUIT COURT. CITED 1 Duvall, 22, Husbands and wife v. Bullock’s adm’r. 3 Bush, 242, Newman v. Winlock, adm’r. 7 Bush, 29, Ross, &c. v. Wilson, Peter, & Co. 6 Bush, 448, Thorn v. Darlington. 2 J. J. Marsh. 468. 1 Marsh. 302. 1 J. J. Marsh. 222. 1 Mon. 75. Revised Statutes, 1 Stanton, page 423.
73 Ky. 539Dunlap v. Kennedy (1874)
Case 20—ORDER REMOVING MASTER COMM’B— APPEAL FROM GARRARD CIRCUIT COURT. CITED Revised Statutes, 2 Stanton, 140, Myers’s Supplement, 563, 564. General Statutes, section 5, pages 138, 656. Constitution of Kentucky, article 3, section 21. Civil Code, sections 590, 656, 804. 7 Bush, 147, Smith v. Cochran. 2 Bouvier’s Law Dictionary, 121. 3 B. Mon. 1. 1Met. 621, Overfield v. Sutton. 1 Met. 637, Allen v. Ramsey’s heirs. 3 Dana, 600, Isaacs v. Taylor. 6B. Mon. 158, Gorham v. Duckett. CITED Revised Statutes, chap. 65, sec. 1, 2 Stanton, 140, Myers’s Supplement, p. 563. General Statutes, chap. 75, sec. 1, p. 656. 2 Duvall, 442, Standeford v. Wingate. 6 Serg. & Rawle, 418, Commonwealth v. Mann. 7 Bush, 147, Smith v. Cochran, &c. 8 Bush, 114, Smith v. Cochran, &c. 2 Constitution of Kentucky, p. 76, General Statutes. 3 Gray, 126, Taft v. Adams. Acts of 1834, p. 417.
73 Ky. 544Joyes v. Hamilton (1874)
1. Process on an amended pleading should be seryed where it presents A new cause of action distinct from the original, and of which the defendant could not be apprised by an inspection of the original petition. (Rutledge y.Vanmeter, 8 Bush, 354; McGrath y. Balser, 6 B. Mon. 141.) 2. Where a husband and wife are sued for a debt of the wife created before the marriage, an amended petition filed averring that they had since been divorced, and seeking judgment against the wife, sets up no new cause of action. 3. A JUDGMENT AGAINST PERSONS JOINTLY LIABLE IS AN ENTIRETY, and if void as to one is void as to all. But where it is several as to the parties it may he reversed as to one and affirmed as to another. A judgment against a divorced wife for her debt, and also against the husband as to any property received by the marriage, if void as to the husband, can not prejudice the wife, and will not be void as to her. (55 Maine, 252; 9 Mass. 532.)
73 Ky. 549Louisville v. Nevin (1874)
Case 22—PETITION EQUITY— APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Dillon on Municipal Corporations, section 616. Charter of 1870 of Louisville, section 7. 8 Bush, 518, Broadway Baptist Church v. McAtee & Cassily. 4 Corns. 419, People v. New York. 11 Johnson, 77. 7 Md. 517, Baltimore v. Cemetery Company. 4 Gill, 394, Dolan v. Baltimore. 31 Penn. St. 69, Pray v. Northern Liberties. CITED Amendment of Feb. 20, 1873, of Charter of Louisville. Act of Feb. 20, 1864, Myers’s Supplement, 482. 8 Bush, 518, Broadway Baptist Church v. McAtee & Cassily. 7 Md. 157, Mayor of Baltimore v. Green Mount Cemetery. 4 Gill, 894.' 13 Penn. St. 104. 8 E. I. 474. 11 Johnson, 77. 20 111. 423. 24 Mo. 20. 46 N. Y. 506, Buffalo City Cemetery v. Buffalo.
73 Ky. 552Louisville & Nashville R. R. v. Goodnight (1874)
Cases 23-24—PETITION EQUITY— APPEALS PROM SIMPSON CIRCUIT COURT. CITED 1 Beclfield’s Law of Railways, pp. 513, 516. 1 East, 106. Story on Agency, section 16. 2 Bibb, 219.
73 Ky. 557White v. Commonwealth (1874)
The only punishment which can be inelicted eor a riot, rout, or breach oe the peace in any court of this state is a fine not exceeding one hundred dollars or imprisonment not exceeding fifty days, or both, at the discretion of the jury.
73 Ky. 564Cumberland & Ohio R. R. v. Judge of the Washington County Court (1874)
1. Mandamus.—Under our Civil Code we have no other than peremptory writs of mandamus. Instead of the alternative writ, the plaintiff, upon his petition and notice, moves at once for a peremptory mandamus, and thereupon the court hears and determines all questions of law and fact arising on the motion, and the order granting or refusing the writ is the final order in the proceeding. (Civil Code, sections 523, 524.) 2. CONELICT OE JURISDICTION BETWEEN COURTS OE LAW AND EQUITY. Courts of equity do not claim to have power to enjoin courts of law from proceeding to judgment in actions in which they have jurisdiction, nor from enforcing by appropriate process the judgments they have jurisdiction to render. Having no such power, courts of equity can not accomplish the. same end by seizing and punishing an officer who is being used as the mere instrument by which the court of law is enforcing its judgment. A railroad company obtained a writ of mandamus against a judge of the county court to compel him to issue the bonds of the county in compliance with a subscription for stock, and before he had complied certain tax-payers brought suit in a court of equity against him, and enjoined him from issuing the bonds; but did not enjoin the company from enforcing the writ. Held, that the court issuing the writ of mandamus had the right and could not refuse to compel obedience to it, and the injunction interposed no legal obstacle to its enforcement. 3. The act oe April 9, 1873, “eor the protection oe counties, CITIES, ETC., SUBSCRIBING STOCK IN railroads, turnpikes, and other improvements,” was not intended as an amendment to the charter of any corporation, but as a general law, and has no application where a subscription for stock in a corporation for the construction of a railroad, turnpike, or other similar public improvement had been fully consummated before the passage of the act. (22 How. 364.) 4. Retroactive statutes.—No statute, however positive in its terms, will he considered or designed to interfere with existing contracts, unless such intention is expressly declared; and courts will apply new statutes to future cases only, unless there is something in the very nature of the case or in the language used which shows that they were intended to operate retroactively. (Potter’s Dwarris, 162; Cooley’s Constitutional Limitations, 370.) 5. Where there is danger oe a misapplication oe eunds subscribed, a court of equity, and it seems a court of law, should refuse to enforce a subscription until the corporation properly secures the appropriation of the bonds or their proceeds in accordance with the terms of the subscription.
73 Ky. 576Bradshaw v. Commonwealth (1874)
1. Hearsay evidence is incompetent, as a general rule, to establish any specific fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge. (1 Greenleaf on Evidence, 99.) 2. What is part op the res gestas.—Contemporaneous expressions of the assailant or of his coadjutors, or of the deceased in cases of homicide, may be proved for the purpose of illustrating the character or quality of the act; but cries or exclamations of bystanders in no way acting in concert with either of the parties to ' the transaction do not constitute part of the res gestee.
73 Ky. 578Love v. Cummings (1874)
1. Competency op witnesses—Interest.—No case can arise where one party to an issue is allowed to testify as to matter affecting his • adversary, and the latter is not permitted to testify as to the same matter. 2. Where a party is constructively served with process.—One of two partners mortgaged his interest in the partnership property and left the state, and the mortgagee brought suit to foreclose against him by constructive service, and his partner by actual service of process. The latter answered, alleging an indebtedness to himself by the firm on account of advances, for which he claimed a prior lien on the partnership property. Held, that as between the mortgagee and this remaining partner the latter was a competent witness to prove the nature and extent of his claim; but neither he nor the mortgagee was a competent witness as against the defendant constructively served. (Sec. 27, chap. 37, General Statutes.)
73 Ky. 584McDonald's v. Underhill's (1874)
1. Lex pori governs as to statute op limitations.—In the courts of this state its statutes, and not those of the state where the debt was to he paid, must control in matters relating merely to the remedy, and in no wise affecting the construction or the obligation of the contract. 2. Obstructing suit.—Where one residing in Alabama and owing debts in New York absconded and took up his residence in Kentucky, where he lived under an assumed name for twenty-five years, unknown to his creditors, it is held that they were not, within the meaning of the statute, prevented or obstructed by the fraudulent change of his name from suing in this state. (Sneed v. Hall, 2 Marsh. 22; Wilson v. Koontz, 7 Oranch, 205.) 3. Statutes op limitations literally construed.—In construing statutes of limitations courts should follow the literal expression of the legislative will; and neither fraud nor mistake will be allowed to modify this rule. 4. New promise to pay.—Where a testator in his will instructed his executor to pay a certain debt barred by limitation, but not to pay interest thereon, it was not a new promise to pay the whole debt, and only the principal can he recovered.
73 Ky. 592Baker v. Commonwealth (1874)
Case 30—DISBARRING ATTORNEY— APPEAL FROM OLAY CIRCUIT COURT. cited General Statutes, chap. 12, art. 3, sec. 14. General Statutes, chap. 28, art 7, sec. 5. 2 Met. 619, Turner v. Commonwealth. 4 Blackstone, 284^88. 8 Chitty’s Rep. 58. 8 Bush, 86, Walker v. Commonwealth. 2 Duvall, 351. 5 B. & A. 898. 1 Brough. 91. 4 B. & A. 47. 7 Moore, 424^37.
73 Ky. 600Shawhan v. Shawhan's administrator (1874)
Case 31—PETITION EQUITY— APPEAL PROM HARRISON, CIRCUIT COURT.
73 Ky. 604Cumberland & Ohio R. R. v. Barren Co. Ct. (1874)
Case 32—AGREED CASE- APPEAL EROM BARREN CIRCUIT COURT. CITED Act of March 11, 1873, amending appellant’s charter. 7 Dana, 338, Johnson v. Commonwealth. 4 Wallace, 554, Von Hoffman v. Quincy. 15 B. Mon. 340, Sage v. Dillard. 21 Barb. 519, Miller v. N. Y. & E. R. R. Co. 16 How. 386, State Bank v. Knoop. 16 How. 416, Ohio Life and Trust Company v. Debolt. 13 B. Mon. 1, Slack v. M. & L. R. R. Co. 16 How. 380. . 16 How. 331. 1 Black. 108. CITED Act of March. 11, 1873, amending charter of C. & O. R. R. Co. Act of March 15, 1871, 2 Session Acts, page 43.
73 Ky. 617Richards v. Richards's adm'r (1874)
Case 83—PETITION EQUITY— APPEAL prom graves CIRCUIT COURT. CITED Civil Code, secs. 393, 14, 369, 373, 579, 580, 613. 18 B. Mon. 670, Newland v. Gentry. 3Greenleaf’s Evidence, secs. 259, 267. CITED Civil Code, secs. 14, 369-373, 579, 580. MS. Op., 1874, Easley v. Holmes. Pr. Dec. (Sneed’s Bep.) 349, Brown v. Rowland. 3 Greenleaf’s Evidence, secs. 259, 267. 1 Bibb, 271, Querry v. White. 2 Bibb, 29, Remaster v. Burckhart. 2 Bibb, 321, Cojer’s ex’r v. McGee. 2 Bibb, 173, Fleming v. Harrison. 2 Bibb, 246, Garten; &c. v. Chandler. 2 Bibb, 311, Morris v. Morris. 4 Mon. 157, Baugh v. Ramsey. 1 Marsh. 103, Martin v. Lewis. 5 Littell, 74, Thompson v. Patton. 1 Mon. 72, Murphy v. Trigg. 5 Littell, 8'4, Skinner v. Miller. 6 Mon. 155, Fenwick v. Ratliff. 7 Mon. 252, Lindley v. Sharp. 1 Bibb, 333, Hammond v. Alexander. 6 Mon. 546, Grimes v. Shrieve. 4 Mon. 236, Stone v. Ramsey. 2 B. Mon. 72, Cook v. Colyer’s adm’r. 15 B. Mon. 478, Walker and wife v. McKnight. 15 B. Mon. 378, Rogers v. Rogers. 18 B. Mon. 670, Newland v. Gentry. 16 B. Mon. 6. 1 Met. 277. 16 B. Mon. 294. 2 Met. 570. 16 B. Mon. 320. 3 Met. 552.
73 Ky. 622Bland v. Commonwealth (1874)
Case 34—INDICTMENT— APPEAL PROM GARRARD CIRCUIT COURT. CITED 1 Bush, 76, Plummer v. Commonwealth. 7 Bush, 612, Stamper v. Commonwealth. Criminal Code, section 267. General Statutes, page 326. CITED 1 Archbold’s Grim. Practice and Pleading, pp. 11, 12, 17.
73 Ky. 624Hawkins v. Baldauf (1874)
Case 35—ATTACHMENT— APPEAL FROM BRECKINRIDGE CIRCUIT COURT. CITED Civil Code, section 15.
73 Ky. 626Penn v. Young (1874)
1. HOW PROCEEDS OP WIPE’S GENERAL ESTATE CONVERTED TO SEPARATE estate.—A husband may permit his wife to set apart the proceeds of her general estate to her own separate- and exclusive use; but his intention to do so must be manifested by a distinct act, unequivocal in its nature, and inconsistent with the idea that he reserves the right in any possible contingency to assert claim as husband to such estate. 2. Wipe’s earnings.—If a husband desires to convert the wife’s earnings as such into separate estate, to be used by her to his exclusion, he must avail himself of the provisions of the statute authorizing courts of equity to empower married women to acquire, hold, and enjoy property as femes sole. (Uhrig v. Horstman & Sons, 8 Bush, 172.) 3. What is not a conversion to separate estate.—A husband may keep the proceeds of his wife’s general estate and the profits accruing from her domestic affairs distinct from his general business, may loan out the moneys accruing from these sources in his wife’s name, take the notes payable to her, and recognize her property in or ownership of such notes, and still the estate thus held will be prima, fade the general estate of the wife, liable at any time to be reduced to possession by the husband, and such estate as he will take as survivor in case of the wife’s death.
73 Ky. 629Robbins v. Cookendorfer (1874)
Case 37—PETITION EQUITY— APPEAL PROM PENDLETON CIRCUIT COURT. CITED General Statutes, chap. 24, secs. 19, 20, 21. General Statutes, chap. 52, art. 2, sec. 3; art. 4, sec. 17. 2 Met. 235, Smith, &c. v. Wilson. 2 Met. 503, Johnston v. Ferguson. 9 B. Mon. 544, Scarborough v. Watkins. 4 Bush, 70, Jarboe, &c. v. Colvin. CITED Act of Feb. 10, 1866, Myers’s Supplement, 714.
73 Ky. 632Bell v. Offutt (1874)
'Cases 38, 39—PETITIONS ORDINARY— APPEALS PROM JEFFERSON COURT OF COMMON PLEAS. CITED Sedgwick on Damages, pp. 229, 851. Chitty on Contracts, pp. 9, 284, 289. Parsons on Contracts, sec. 2, p. 5. Littell’s S. C. 253, Baker, &e. v. Le Grand. 3 Bibb, 289, McCall v. Welsh. 1 Marsh. 586, Carter v. Woolright. 5 Dana, 188, Dryden v. Lewis. 9 Dana, 296, Chandler v. Bobertson. 8 Dana, 151, McNairy, &c. v. Bishop, &c. 3 Marsh. 418, Burch v. Young. 1 Bibb, 459, Bodine v. Wade. CITED Story on Agency, secs. 391, 393, 269, 133. Benjamin on Sales, 2d ed., pp. 326, 558, 559. Story on Contracts, sec. 386. Chitty on Contracts, 8th Am. ed., p. 211; 11th ed., pp. 94, 95, 277, 303. Hilliard on Contracts, secs. 21, 47, pp. 605, 606; sec. 50, p. 607; sec. 74, p. 621. Paley on Agency, 3d Am. ed., pp. 171, 210, 199, 200. 9 Dana, 292, Chandler v. Robertson. 1Parsons on Contracts, pp. 44-47. 1 Chitty on Pleading, pp. 7, 12. 3 Graham & Waterman on New Trials, pp. 1021, 1048, 1063. 8 Johnson, 85, Smith v. Brush. 1 Kean (15 Eng. Ch’y) 729, Thomas v. Dering. 2 S. & S. 194, Holland v. Eyre. 1 Paige’s Ch’y Rep. 434, Frith v. Lawrence. 4 Paige’s Ch’y Rep. 17, B'risban v. Boyd. 2 Yo. & Col. 67, Morton v. Sewart. 1 Hill’s S. C. Ch’y Rep. 166. 16 N. Y. 133. 6 Munf. 83, Fitzhugh y. Jones.' 8 Esp. 76. 7 Dana, 281, Chiles v. Nelson. 9 M. & W. 78, Beckham v. Drake. 6 A. & E. 486, Jones v. Littledale. 2 Kent’s Commentaries, pp. 630, 620, 261. 8 M. & W. 834, Higgins v. Senior. 2 M. & W. 440, Magee v. Atkinson. 7 Cushing, 374, Huntington v. Knox. 5 Littell, 1, Tutt v. Brown. 3 Marsh. -484, McAlexander y. Lee. 2 Camp. 22. 8 Queen’s B. 604, 609. 2 Term Rep. 209. 6 Cushing, 225. 1 Denio, 471. 1 Cushing, 273. 8 Wend. 494. 24 Wend. 102. 40 English Common Law, 594. 11 M. & W. 315, Drake, y. Beckham. 10 B. Mon. 349, Violett y. Powell’s adm’r. 13 B. Mon. 217, Bates y. Best. 19 Johnson, 78, Vibbard, &c. y. Johnson. 21 Wend. 280, Anderson v. Coruly. 26 Vermont, 112, Barbee v.’ Brittan. CITED Chitty on Contracts, p. 213. Story on Agency, sec. 251. Paley on Agency, pp. 143, 144. 6 Mon. 581, De Hart v. Wilson. 1 J. J. M. 285, Vanada’s heirs v. Hopkins’s adm’r, &e. 6 Mann & G. 236, Wilson v. Tumman. 9 Peters, 607, Owings v. Hull. 7 Hill, 128, Hays v. Stone. 6 Pick. 200, Copeland v. Mercantile Ins. Co. 2 T. R. 189, Smith v. Colgan. 2 Parsons on Contracts, pp. 3, 4, 61, 62. 1 Greenleaf’s Evidence, section 275. 4 Bibb, 348. 3 Marsh. 381. 4 Bibb, 563. 1 Marsh. 157.
73 Ky. 644Bate v. Speed (1874)
Case 40—ORDER OF COUNTY COURT— APPEAL PROM JEEEERSON COUNTY COURT. CITED Act of Feb. 11, 1874, incorporating a police municipality in Jefferson County. Civil Code, sections 14, 15, 20. Cooley’s Con. Lim., 2d ed., side pages 602, 603, 499, 501, 502. 9 Dana, 517, City of Lexington v. McQuillan’s heirs. 3 Ohio St. 1, Exchange Bank of Columbus v. Hines. 4 Iowa, State v. Young. 6 Cal. 26, People v. Porter. 1 Kansas, 273, Jones v. State. 1 Cold. 588, Barry y. Lauck. 1 Smith’s Leading Cases, 991. 2 American Leading Cases, 5th ed., 633. 7 Hill, 116, Strieker v. Kelly. 9 B. Mon. 344, Cheany v. Hooser. 2 Black, 516, Gilman y. City of Sheboygan. 4 B. Mon. 224, Rodman v. Harcourt, &c. 2 Met. 494, Patterson y. Miller. 11 Cal. 49, McKime v. Weller. 12 Cal. 409, People v. Martin. 99 Mass. 267, Folger v. Insurance Co. 33 N. H. 228, Easton v. Baljee. CITED 9 Dana, 517, City of Lexington y. McQuillan’s heirs. Cooley’s Constitutional Limitations, pp. 616-619.
73 Ky. 649Jones v. Johnson (1874)
1. Joinder oe actions.—Section 111 of the Civil Code was intended to liberalize, and not to make the rules of practice more technical and restricted than they were before the adoption of the Code. 2. Under the former classification of forms of actions an action for negligence or fraud would have been in form esc delicto. 3. A plaintiff may join in the same petition a cause of action on a contract and a cause of action for fraud or negligence directly connected with the contract. 4. Implied contract on part op oppicers op corporations.—In assuming to discharge the duties pertaining to their respective stations the law implies a contract on the part of officers of a corporation that they will use ordinary care and act honestly in managing its affairs, and a suit by stockholders to settle a trust in the hands of the assignee of a corporation may be joined with an action against the officers for negligence and fraudrilent management of its affairs. In such suit the assignee of the corporation is a necessary party, and if he refuses to sue as plaintiff, he may be made a defendant. 5. Action against oeeicers op a corporation eor misconduct as SUCH should be brought by the corporation itself; but if it be still in the hands of such officers, the stockholders may sue in ITS STEAD. Such suit by the stockholders must be in equity, even though founded on a tort, as they have no right to sue at law. (2 Atkyns, 400; 3 Paige, 230.) 6. An order compelling a plaintive to elect which of two causes of action he will prosecute is not a final order from which an appeal can be taken, but it may be revised on an appeal from the final judgment in the case, and his election to strike out one cause of action under protest is no waiver of the error.
73 Ky. 664Hannon v. Madden (1874)
Cases 43, 44—PETITIONS EQUITY— APPEALS PROM LOUISVILLE CHANCERY COURT. CITED Revised Statutes, 1 Stanton, 281, 282. Revised Statutes, 2 Stanton, 12-15. 4 Met. (Mass.) 478, Gregory v. Pearce. 1 Vernon, 104. 1 Peters, 105, Rhea, &c. v. Rhenner. 1 Bos. & Pull. 359. 5 J. J. Marsh. 640, Taylor v. Simpson. 8 D. & East, 546. 4 McChord, 148, Bean v. Morgan. 1 Kent’s Commentaries, 132. 11 How. Pr. Rep. 235, Chapman, &c. v. Lemon and wife. 15 Mass. 32, Gregory v. Paul. 16 111. 278, Love v. Morgrehan. 22 111. 390, Prescott and wife v. Fisher. CITED 15 Mass. 32, Gregory v. Paul, &e. 22 Illinois, 278. 11 Howard’s Practice Reports, 235. 4 Met. 478, Gregory v. Pearce. 1 Peters, 108. 4 McChord, 88, Bean v. Morgan. (Brief not in record.)
73 Ky. 669Western German Savings Bank v. Farmers & Drovers' Bank (1874)
Case 45—PETITION EQUITY— APPEAL FROM LOUISVILLE CHANCERY COURT. CITED Kerr on Fraud and Mistake, p. 408. Littell’s Sel. Oas. 41. 9. Ala. 662. 2 Swan, 301, Guild v. Baldridge. 5 Humph. 529, Trigg v. Reid. 3 B. Mon. 514, Ray v. Bank of Kentucky. 1 Story, 172, Daniel v. Mitchell. I Wood & Minot, 90, Warner v. Daniels. 3 Story, 659, Hugh v. Richardson. 6 O. & T. 523, Atwood v. Small. 7 Paige, 124, Moffat v. Winslow. II Conn. 134, Segur v. Finley. 19 Ark. 522, Hill v. Bush. CITED Story’s Equity, secs. 141, 146, 147, 149-151, 191, 408, 410, 432. Benjamin on Sales, 323. 3 Bibh, 261. Sugden on Powers, page 1021. Littell’s Selected Oases, 41, Kennedy v. Campbell. Younge’s Reports, 407, Small v. Atwood. 1 Story’s Reports, 172, Daniel v. Mitchell. 1 Wood & Minot, page 90. 7 Ala. 662, Jouzin v. Toulmin. 6 English (Ark.) 66, Yeates v. Pryor. 1 Smedes & Marshall, 443. 3 Smedes & Marshall, 78, 683. 1 Fonbl. Eq., book 1, chap. 2, sec. 8. 3 Story’s Reports, 659, Hough v. Richardson. 4 Littell, 125, Fitzgerald v. Peck. 3 B. Mon. 514, Ray v. Bank of Kentucky. 4 Dana, 309, Underwood v. Brockman. 3 Met. 368, Fall v. McMurdy. 4 B. Mon. 190, Gratz v. Bedd. 7 B. Mon. 126, Fox v. Miller. 14 B. Mon. 335, Bice v. Bice. 19 Ark. 522, Hill v. Bush.
73 Ky. 677City of Lexington v. Lewis's administratrix (1874)
1. Loss of LIFE BY willful neglect.—To authorize a recovery under section 3 of the act of March 10, 1854, it is essential that the loss of life shall have been the result of willful neglect; and as the statute is highly penal in its nature, a petition under it to be good must charge the exact character of neglect for which a recovery may be had; and while it is not indispensable that the exact language of the statute shall be used, it is absolutely necessary that the charge shall be made in language clearly importing as high a degree of negligence as that for which the law-making-power intended .the penalty to be imposed. 2. The case in point.—An allegation in a petition that a work was done “so recklessly, carelessly, and wantonly, and with such indifference to the rights of others,” that a person was killed, is not a full equivalent to a charge that the life was lost by the willful neglect of the person doing the work. 3. What is willful neglect.—Slight neglect may be culpable; ordinary and gross neglect are always culpable; but willful is intentional neglect, or such as implies actual malice, as in the case of knowledge, express or necessarily implied from the surrounding circumstances, of the perilous character of the work and the voluntary or intentional failure to provide the ordinary means of security. (2 Duvall, 577.) 4. “Wanton” is not “-willful.”—Negligence or carelessness signifies want of care, caution, attention, diligence, or discretion in one having no positive intention to injure the person complaining thereof. The words “ reckless,” “ indifferent,” “ careless, ” and “wanton” are never understood to signify positive will or intention, unless when joined with other words which show that they are to receive an artificial or unusual, if not an unnatural, interpretation.
73 Ky. 681Marshall v. Donovan (1874)
Case 47—PETITION ORDINARY— APPEAL PROM BRACKEN CIRCUIT COURT. CITED Act of March 11, 1873, 1 Session Acts, p. 471. Rees’s Cyclopedia, “ Citizen.” Com. Dig. Parliament D. 6, 4 Inst. 6. Butler’s Horas Juridicse, 26, 27. Constitution of Kentucky, art. 1, secs. 1, 2; art. 2, secs. 29, 30; art. 13, secs. 1, 14. Constitution of United States, amendments 13, 14, 15. 1 Littell, 332, Amy v. Smith. 9 Wis. 410, Knowlton v. Supervisors of Rock Oo. 2 Swan, 68, Marshall v. Kerns. 9 B. Mon. 345, Cheaney v. Hooser. 5 Ohio St. 589, City of Zanesville v. Richards. 3 Ohio St. 1, Exchange Bank of Columbus v. Hines. 7 B. Mon. 167. 2 Met. 354. 15 B. Mon. 498. 17 B. Mon. 177, 230. 18 B. Mon. 289. 13 B. Mon. 30, 31. 17 Iowa, 85, Fort D. City School D. v. The Township of W. 10 Wis. 242, Weeks v. City of Milwaukee. 16 Wallace, 36. 7 Dana, 81. 9 Dana, 516. CITED Act of March 11, 1873, Session Acts, p. 471. Constitution of Kentucky, art. 2, sec. 36; art. 11, sec. 1. Common-school Acts of 1825, 1830, 1838. Constitution of United States, amendment 14. General Statutes, pp. 209, 223. 2 Dillon on Municipal Corporations, sec. 589. 9B. Mon. 330. 13 B. Mon. 1. 16 Wallace, 81.' 16 Wallace, 139, Bradwell v. The State. 13 Am. Law Reg., No. 10, United States v. Cruikshank.
73 Ky. 696Craycraft v. Selvage (1874)
1. Liens for street improvements.—As the charter of 1870 of the city of Louisville provides for suits to enforce liens for the cost of street improvements without prescribing the mode of procedure, the legislature will be presumed to have intended to leave the mode to be regulated by the general laws applicable to other cases for the enforcement of liens. 2. Squares.—The charter gives the city power to improve its highways as may be prescribed by ordinances, and the council may designate in the ordinance .the points between which the improvements shall be made. 3. Curing defects.—No error in the proceedings of the General Council shall exempt the lot-owners from payment of the cost of street improvements after the work has been done as required by ordinance or by contract; but the council or the courts in which suits may be pending shall make all corrections, rules, and orders to do justice to all the parties. 4. City not liable where the lot-owners are.—When by taking the proper steps the General Council can make an improvement at the cost of the owners of adjacent property its powers to improve the streets may be executed in that way; and the city can in no event be made liable, unless it will have the right to proceed to make the property-holders liable. 5. When the city is liable for cost of improvements.—But if the 'nature or ownership of the adjacent property is such that no steps which could have been taken would have rendered it or its owner liable, then the city must pay for the improvement, or it will have as to such work no means of executing its general power to improve ■ all streets. (Caldwell v. Rupert, 10 Bush, 179; City of Louisville v. Nevin, 10 Bush, 549.) 6. Persons dealing with a municipal corporation are bound at their peril to know that the contracts made by the officials of such corporation are made in the mode-„pointed out by the charter and ordinances; and if they fail, they must suffer the consequences. 7. Agency.—One dealing with, an agent, whose powers he knows are limited, deals at his peril, whether the limitation be as to the extent of the agent’s powers or the mode of their execution.
73 Ky. 711Bowling Green & Madisonville Railroad v. Warren County Court (1874)
Case 50—PETITION EQUITY— appeal prom warren circuit court. CITED Constitution of Kentucky, secs. 29 and 37, art. 4. Debates of the Constitutional Convention of Kentucky. Withrow’s Corporation Cases, pp. 373, 460.
73 Ky. 725Commonwealth v. Jones (1874)
1. The DEPRIVATION OF THE RIGHT TO HOLD OFFICE IS A PUNISHMENT, and the provision in section 20 of article 8 of the state constitution for depriving persons guilty of dueling of the right to hold office was intended as a punishment. 2. The constitutional provisions relating to dueling are not self-executing, except to the extent that persons who can not or will not take the constitutional oath are thereby prevented from holding office. 3. A citizen who denies that he is guilty of having violated those provisions, and is willing to take the oath of office, may enter upon and discharge the duties thereof without subjecting himself to an indictment for usurpation of office until he has been first indicted, tried, and convicted for the disqualifying offense. But if he takes the oath falsely and corruptly, he may be indicted and prosecuted for the crime thereby committed. 4. Section 20, article 8, of the state constitution, is of itself a perfect statute, and any one violating its provisions may be indicted, tried, and convicted, and by the judgment of the court be deprived of the right to hold any office of trust or profit, independent of any legislative action on the subject. 5. Jurisdiction or the contesting election board.—The statutes regulating the proceedings and prescribing the duties of the contesting board in elections for clerk of the Court of Appeals do not empower it to enter into an original inquiry as to whether the person elected has, by á violation of the constitutional provisions in regard to dueling, subjected himself to be deprived of the right to hold office; nor upon their own conviction as to his guilt to adjudge him not entitled to the office, and thereupon to declare it vacant. The legislature could not constitutionally have conferred such power on a board or tribunal composed of executive officers. 6. The action of the contesting hoard within the limits of its jurisdiction is final and conclusive as well on the courts as on other departments of the government. But when courts are called on to enforce the judgments of the board, or to punish those who disobey its mandates, they have the power, to inquire into .and. determine its jurisdiction in the particular case. 7. The contesting hoard has jurisdiction to investigate and determine finally and conclusively whether the person elected possesses each and all of the qualifications prescribed by the constitution, and whether there are present any of the disqualifications imposed by it. 8. Executive and judicial powers.—It is difficult to draw the exact line of demarkation between executive and judicial powers, and more so to define with accuracy how far executive officers in the discharge of executive or ministerial duties may bind the other departments of government by the exercise of gmsi-judicial functions. But where the inquiry to he made involves questions of law as well as fact, where it affects a legal right, and the decision may result in terminating or destroying that right, the power to be exercised and the duties to be discharged are essentially judicial, and such as can not be constitutionally delegated to or imposed upon executive officers. 9. The words “qualifications” and “qualified” are used in the state constitution in their most comprehensive sense to signify not only the circumstances that are requisite to render a citizen eligible to office or that entitle him to vote, but also to denote an exemption from all legal disqualifications for either purpose. (17 B. Mon. 784.) 10. There are no implied exceptions to the bill of rights.—Every thing in that article is declared to be excepted out of the general powers of government and to remain forever inviolate. 11. A demurrer admits the FACTS charged, but only to test the law on such facts; and if it be overruled, the admission is no longer binding. 12. One’s guilt ean not be tried, in any other than a direct proceeding. (1 Dana, 511.) 13. Trial by jury.—The rule of construction, whether applied to the constitution or to a statute, which will preserve unimpaired the ancient mode of trial by jury should always govern in interpreting laws involving the forfeiture of a civil or political right. 14. Constitutional law.—Whenever an act is done which may become the subject of a proceeding in court, any question of constitutional authority that might have been raised when the act was done will be open for consideration in such proceedings; and as courts must finally settle the controversy, so also will they finally determine the constitutional law. (8 B. Mon. 655.)
73 Ky. 758Burkett v. McCarty (1866)
PETITION ORDINARY— APPEAL PROM BRACKEN CIRCUIT COURT.
73 Ky. 763Waits v. McClure (1873)
PETITION ORDINARY — APPEAL EROM WOODEORD CIRCUIT COURT. CITED Civil Code, sections 39, 123. Collyer on Partnership, pp. 419, 421. Gow on Partnership, p. 180. 5 Burrows, 260, Rice v. Shute. 15 B. Mon. 589, Johnson v. Chandler. (Brief not in record.)